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2016 DIGILAW 845 (UTT)

Mahendra Singh v. State of Uttarakhand

2016-11-18

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. By means of present writ petition, the petitioners pray for the following reliefs, among others: “(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned FIR bearing case crime no. 246 of 2016 dated 14.10.2016 under Sections 420, 468, 471, 504, 506 and 34 of IPC, PS Nehrun Colony, District Dehradun, lodged by respondent no.3 (Annexure No. 1). (b) Issues a writ, order or direction in the nature of mandamus staying the arrest of the petitioner in relation to impugned FIR bearing case crime no. 246 of 2016 dated 14.10.2016 under Sections 420, 468, 471, 504, 506 and 34 of IPC, PS Nehrun Colony, District Dehradun, lodged by respondent no.3 during the pendency of this writ petition in this Hon’ble High Court, failing which the petitioner will suffer irreparable loss and injury.” 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. The sale-deed was registered in the name of respondent no.3. When she went on the spot, she found that the said plot was already sold out to someone else on the basis of fake power of attorney. It is the submission of learned counsel for the petitioner that the first information report was lodged on 14.10.2016 in respect of the sale which took place in the year 2008. Learned counsel for the petitioners further submitted that no credible evidence is available against the petitioners to show that they have committed the alleged crime. A civil dispute has been given colour of criminal offence. If the respondent no.3 has any doubt over the plot in question she ought to have filed suit for declaration of title. According to the learned counsel for the petitioners present FIR is gross abuse of process of law. 4. 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 . 5. 5. 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. 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 25.11.2016, 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, who are present. 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.