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2016 DIGILAW 742 (UTT)

Sant Kulwant Singh v. State of Uttarakhand

2016-10-19

U.C.DHYANI

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JUDGMENT : U.C. Dhyani, J. By means of present criminal writ petition, the petitioners seek following reliefs, among others: (i) Issue a writ, order or direction in the nature of certiorari quashing the impugned FIR of case crime no. 110 of 2009, under Sections 420, 467, 468, 471, 506 IPC, relating to P.S. Kankhal, District Haridwar. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondent nos. 1 and 2 not to harass the petitioners in view of impugned FIR till the collection of any credible evidence against the petitioners and till the filing of charge sheet. 2. Heard learned counsel for parties and perused the documents brought on record. 3. An FIR was lodged against the petitioners in respect of offences punishable under Sections 420, 467, 468, 471, 506 IPC. 4. Earlier on filing of WPCRL no. 991 of 2013, vide order dated 17.08.2013 an interim order was passed to this effect: “The issue pertains to one Nirmal Virakt Kutiya at Haridwar. Newly added committee of the said Kutiya was made accused in the year 2009. It was the allegation that the signatures of earlier Manager Bhagwan Singh were forged on the resignation paper. The matter was investigated into by the I.O. and final report was submitted. On protest petition being filed, the matter is underway in the court concerned. Bhagwan Singh died thereafter. The police moved for further investigation before the Court below which was denied. Petitioners are apprehending arrest and, therefore, this criminal writ petition. It is provided as an interim measure that no coercive steps shall be adopted to enforce the attendance of the petitioners before the police or the I.O., so long as they cooperate with the Investigating Agency. In case the petitioners defy the investigation, the prosecution is at liberty to move for stay vacation. This interim protection is valid only till the next date of listing.” 5. Thereafter, again the final report was filed by the different Investigating Officer, which final report was not accepted. On the third occasion, the investigation was again conducted by the different I.O., who too, although filed final report, but the same was not accepted by the SSP, and, therefore, the petitioners are apprehending their arrest. Hence, the present writ petition. The incident appears to have political overtones. 6. On the third occasion, the investigation was again conducted by the different I.O., who too, although filed final report, but the same was not accepted by the SSP, and, therefore, the petitioners are apprehending their arrest. Hence, the present writ petition. The incident appears to have political overtones. 6. It is the submission of learned counsel for the petitioners that even if the FIR is under Sections 420, 467, 468, 471, 506 IPC, but no offence punishable under Section 467 IPC as such is prima facie made out, inasmuch as, whosoever is investigating the case, does not find any criminal case against the petitioners. 7. Although, one of the offences alleged against the petitioners 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 petitioners, 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 . 8. It is provided that the petitioners should be arrested only when the Investigating Officer has reason to believe, on the basis of 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. 9. 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. 10. Petitioners are directed to contact the Investigating Officer of the case on 26.10.2016, and on such subsequent dates as may be instructed by him (I.O.) for interrogation and investigation. 11. 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. 11. 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.