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2016 DIGILAW 645 (UTT)

Matina v. State of Uttarakhand

2016-09-28

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. By means of present writ petition, the petitioner prays for the following reliefs, among others: “(a) Issue an order, direction or writ in the nature of certiorari quashing FIR dated 05.09.2016, lodged by respondent no.3 arising out of Case Crime No. 204 of 2016 for the offences punishable under Sections 419, 420, 467, 468, 471 and 120-B of IPC at Police Station Vikasnagar, District Dehradun (Annexure-1 to this writ petition). (b) Issue a writ, order or direction in the nature of mandamus commanding the respondents no. 1 & 2 not to arrest the petitioner in FIR dated 05.09.2016, lodged by respondent no.3 arising out of Case Crime No. 204 of 2016 for the offences punishable under Sections 419, 420, 467, 468, 471 and 120-B of IPC at Police Station Vikasnagar, District Dehradun (Annexure-1 to this writ petition).” 2. Heard learned counsel for the petitioner, learned counsel for the State, perused the documents brought on record and considered the grounds taken up in the writ petition. 3. The allegation in the FIR is that the complainant is 1/3rd owner of the property in question and his son Dilshad (co-accused) got executed a power of attorney of the property in question in his favour by impostering the petitioner being mother of the complainant before the Sub-Registrar on 25.04.2016 and on the basis of the same he (Dishad) executed sale-deed in favour of other co-accused. 4. It is the submission of learned counsel for the petitioner that the petitioner is an illiterate lady of 72 years and has no knowledge about the alleged fraud committed by s/o of the complainant. The other grounds have also been taken in the writ petition which the Court does not think it necessary to reproduce. 5. Learned counsel for the petitioner submitted that no offence under Section 467 of IPC is made out against the petitioner. 6. Although, one of the offences alleged against the petitioner entails punishment for more than 7 years, but learned counsel for the petitioner contends that no such offence is made out against the petitioner and if the commission of that offence is ignored in respect of the petitioner, other offences are covered by the decision of Hon’ble Apex Court in Arnesh Kumar vs. State of Bihar and another, reported in (2014) 8 SCC 273 . 7. 7. It is provided that the petitioner should be arrested only when the Investigating Officer has reason to believe, on the basis of the information and material collected, that she has committed an offence. Before making arrest, the Investigating Officer is required to satisfy himself that the arrest is necessary for one or more purposes envisaged by Sub-Clauses (a) to (e) of Clause (1) of Section 41 of Cr.P.C. It will not be based upon the ipse dixit of the Police Officer. In other words, the petitioner shall be arrested only when the conditions stipulated in Sub-Clauses (a) to (e) of Clause (1) of Section 41 of Cr.P.C. are satisfied. 8. Needless to say that the Investigating Officer of the case shall abide by the aforesaid directions of Hon’ble Apex Court, before affecting the arrest of the petitioner. 9. Petitioner is directed to contact the Investigating Officer of the case on 05.10.2016, and on such subsequent dates as may be instructed by him (I.O.) for interrogation and investigation. 10. It will be of no use keeping the present criminal writ petition pending for disposal, inasmuch as, the investigation is going on and ultimately, the investigation will come to its logical conclusion only under Section 173 of the Criminal Procedure Code either by a final report or by a charge sheet. The same is accordingly being disposed of at the admission stage itself with the consent of learned counsel for the parties present today. 11. In the given facts and circumstances of the present writ petition, this Court does not feel it necessary to issue notice to the private respondent. Still, liberty is granted to her to move for recall of this Order, if she feels aggrieved with the same.