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2016 DIGILAW 848 (UTT)

Rajendra Singh v. State of Uttarakhand

2016-11-18

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. 1. There is an error apparent on the face of record. Learned Deputy Advocate General contended that no charge-sheet has been submitted against the writ petitioner. The investigation against him is going on and on the basis of a wrong statement order dated 24.08.2016 was passed. 2. Since there is an error apparent on the face of record, therefore, the order dated 24.08.2016 (sought to be recalled), is recalled in the interest of justice. MCC No. 779 of 2016 (Recall Application) is allowed. The writ petition is restored to its original number. 3. Writ Petition (Criminal) 253 of 2016 is taken up for hearing with the consent of learned counsel for the parties. 4. By means of present writ petition, the petitioner prays for the following reliefs, among others: “(a) Issue an order, order or direction in the nature of certiorari quashing FIR dated 07.07.2015 case crime no. 143 of 2015, punishable under Sections 420, 467, 468, 323, 504, 506 and 120-B of IPC at Police Station Vikas Nagar, District Dehradun (Annexure-2). (b) Issue an order, direction or writ in the nature of mandamus directing respondent no. 1 & 2 not to arrest the petitioner in FIR dated 07.07.2015 case crime no. 143 of 2015, punishable under Sections 420, 467, 468, 323, 504, 506 and 120-B of IPC at Police Station Vikas Nagar, District Dehradun (Annexure-2).” 5. The petitioner is not named in the FIR. The allegation against him is that the person to whom accused Muntazim sold the property told the purchaser to deposit a sum of Rs. 2,60,000/- in the account of present petitioner. It is the submission of learned counsel for the petitioner that although the money was deposited in the petitioner’s account but he returned the same to Muntazim. 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 he 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 25.11.2016, 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 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. 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 respondents. Still, liberty is granted to them to move for recall of this Order, if they feel aggrieved with the same.