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2016 DIGILAW 811 (UTT)

Shahzad v. State of Uttarakhand

2016-11-09

U.C.DHYANI

body2016
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 dated 17.10.2016 registered as case crime no. 345 of 2016, under Sections 147, 323, 504, 506, 354 IPC and Section 3(1)(e)(r)(s)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, relating to P.S. Kotwali Roorkee, District Haridwar. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondent nos. 1 and 2 not to harass and arrest the petitioner in aforesaid case crime number. 2. Heard learned counsel for parties and perused the documents brought on record. 3. It is the submission of learned counsel for the petitioners that a civil dispute has already been decided by the civil court in respect of the property in question. The same was decided in favour of the petitioners. Present FIR has been lodged by the respondent no. 3 purely as a counterblast. Earlier, on a similar subject matter, a complaint was filed on behalf of husband of the injured in which the accused persons were exonerated (discharged). So the argument of learned counsel for the petitioners, in a nutshell, is that the FIR is lodged against them in order to wreck vengeance. 4. It is the submission of learned counsel for the petitioners that on a bare reading of the first information report, no offence under Section 3(1)(e)(r)(s)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is prima facie made out against the petitioners in view of the judgment rendered by Hon’ble Apex Court in Gorige Pentaiah vs State of Andhra Pradesh and others, (2008) 12 SCC 531 . It is also the submission of learned counsel for the petitioners that ingredients of offence punishable under section 3(1)(e)(r)(s)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act are not made out against the petitioners and if commission of that offence is ignored then the other offences are covered by the judgment rendered by Hon’ble Supreme Court in Arnesh Kumar vs. State of Bihar and another, reported in (2014) 8 SCC 273 . 5. 5. Considering the contents of the FIR as also the grounds taken up in the writ petition, 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. 6. 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. 7. Petitioners are directed to contact the Investigating Officer of the case on 16.11.2016, and on such subsequent dates as may be instructed by him (I.O.) for interrogation and investigation. 8. 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 Court has no occasion to interfere in between. The same is accordingly being disposed of at the admission stage itself with the consent of learned counsel for the parties present today. 9. 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. (Stay application no. 11411 of 2016 also stands disposed of).