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2016 DIGILAW 690 (UTT)

Jagdish Joshi v. State of Uttarakhand

2016-10-03

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. (Oral) By means of present writ petition, the petitioners pray for the following reliefs, among others: “(a) Issue a writ, rule, order or direction in the nature of certiorari calling for the record and quashing the FIR No. 169 of 2016, dated 28/29.07.2016, under Sections 419, 420, 467, 468, 471 and 120B of IPC, at Police Station ROP Selaqui, District Sahaspur, Tehsil Vikasnagar, District Dehradun (Annexure No. 3) in relation to the petitioners. (b) Issue a writ, rule, order or direction in the nature of mandamus commanding and directing the respondent no.3 not to arrest the petitioners in relation to FIR No. 169 of 2016, dated 28/29.07.2016, under Sections 419, 420, 467, 468, 471 and 120B of IPC, at Police Station ROP Selaqui, District Sahaspur, Tehsil Vikasnagar, District Dehradun, during pendency of the investigation.” 2. Heard learned counsel for the petitioners, learned counsel for the State, perused the documents brought on record and considered the grounds taken up in the writ petition. 3. Factual matrix of the present controversy is that father of the complainant made a registered power of attorney dated 19.07.1996 in favour of the petitioner no. 2 of the land, i.e., khasra No. 609/2 measuring 0.223 hect. and khasra no. 612/2 measuring 0.512 hect. at Village Dhakrani, Pargana Pachhwadoon, District Dehradun with the rights to transfer the land with any land and further to enter into agreement for the purpose of sale of the said transferred land or to cancel the said agreement if required or to look after the land got in transfer and its proceeds on behalf of the father of the petitioner, i.e., Majeed s/o Alla Baksh R/o Village Dhhakrani, Pargana Pachhwadoon, District Dehradun. The FIR further states that the alleged forged attorney was made on 22.01.2003 and the sale of the land in question was made on 25.07.2003 and 24.04.2003 and father of the respondent no. 4/complainant, whose land was sold by the alleged forged attorney also died on 04.02.2007 without making any complaint himself, whereas his name was there in the revenue record, thus making the story in the complaint to be concocted and made up, inasmuch as , after 9 years of the death of her father, respondent no. 4/complaianant is lodging the FIR without annexing her locus for lodging the FIR. The petitioner no. 2 has signed the sale-deed as a witness alone without identifying. 4/complaianant is lodging the FIR without annexing her locus for lodging the FIR. The petitioner no. 2 has signed the sale-deed as a witness alone without identifying. 4. Learned counsel for the petitioners submitted that no offence under Section 467 of IPC is made out against the petitioners. 5. Although, one of the offences alleged against the petitioner entails punishment for more than 7 years, but learned counsel for the petitioners contends that no such offence is made out against the petitioners 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 . 6. It is provided that the petitioners should be arrested only when the Investigating Officer has reason to believe, on the basis of the information and material collected, that they have 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 petitioners 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. 7. 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 petitioners. 8. Petitioners are directed to contact the Investigating Officer of the case on 10.10.2016, and on such subsequent dates as may be instructed by him (I.O.) for interrogation and investigation. 9. 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. 10. 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. The same is accordingly being disposed of at the admission stage itself with the consent of learned counsel for the parties. 10. 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.