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2016 DIGILAW 879 (UTT)

Chaudhary Daryav Singh v. State of Uttarakhand

2016-11-24

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) a writ, order or direction in the nature of certiorari quashing the impugned FIR dated 19.11.2016 registered as Case Crime No. 85 of 2016, under Sections 420, 467, 468, 471 and 120-B of IPC, Police Station Rajpur, District Dehradun. (b) a writ, order or direction in the nature of mandamus commanding the respondent no.2 not to arrest and harass the petitioners in connection with Case Crime No. 85 of 2016 under Sections 420, 467, 468, 471 and 120-B of IPC, Police Station Rajpur, District Dehradun.” 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 brief facts giving rise to the present writ petition have been given by the learned counsel for the petitioners in para 3 of the writ petition which are being reproduced herein below: “3. Brief facts giving rise to the present case are that Late Sri Attar Singh Gurang Son of Late Sri Ratan Singh Gurang R/o village Johadi Pargana Kendriay Doon District Dehradun was recorded owner of a land recorded in Khasra No. 222/3 (New Khasra No. 413Ga min according to Khatoni of Fasli year 1416-1421 Fasli) measuring 1.90 acres (about 10 bigha) situated in village Johadi, Pargana Kendriya Doon District Dehradun. The petitioner no. 1 and above named Late Sri Attar Singh Gurang were well aware to each other having good understandings between them. It is submitted here that Late Sri Attar Singh desired to sale out the aforesaid land for sale consideration of Rs. 4,00,000/-. It is submitted here that the petitioner no. 1 also desired to purchase the said land from above named Late Sri Attar Singh, therefore, he made a part payment of Rs. 1,50,000/- by way of partly cash and partly by cheques as earnest money. The above named Late Attar Singh executed a notarized Agreement to Sale dated 08.06.1990 in favour of petitioner no. 1 in respect of aforesaid land recorded in Khasra No. 222/3 measuring 1.90 acres situated in Village Johadi, Pargana Kendriya Doon District Dehradun describing therein the payment of Rs. 1,50,000/-. The above named Late Attar Singh executed a notarized Agreement to Sale dated 08.06.1990 in favour of petitioner no. 1 in respect of aforesaid land recorded in Khasra No. 222/3 measuring 1.90 acres situated in Village Johadi, Pargana Kendriya Doon District Dehradun describing therein the payment of Rs. 1,50,000/-. A true copy of agreement to Sale dated 08.06.1990 is being filed herewith and is marked as Annexure No. 2 to this writ petition.” 4. In para 4 & 5 of the writ petition, the following has been stated : “(4) That it is submitted here that thereafter the petitioner no. 1 paid entire remaining amount of sale consideration to Late Sri Attar Singh but no registered sale deed was executed by him in favour of petitioner no. 1 or in favour of his nominee therefore after receiving the entire amount of sale consideration being a good understanding between the petitioner no. 1 and Late Sri Attar Singh, Late Sri Attar Singh executed a notarized power of attorney dated 30.04.1991 in favour of petitioner no. 1 in respect of the aforesaid property recorded in Khasra No. 222/3 measuring 1.90 acres (about 10 bigha) situated in Village Johadi, Pargana Kendriya Doon District Dehradun. A true copy power of attorney dated 30.04.1991 is being filed herewith and is marked as Annexure No. 3 to this writ petition. It will not be out of place to mention here that at the time of execution of aforesaid power of attorney the physical possession of the land was also handed over to the petitioner no. 1. (5) That it is relevant to state here that as the petitioner no. 1 had paid the entire sale consideration of Rs. 4,00,000/- to the above named Late Sri Attar Singh and a physical possession over the land was already given to the petitioner no. 1, therefore, in absence of execution of registered sale deed for securing the interest of the petitioner no. 1 on the aforesaid land and in order to avoid any future discrepancies / dispute between the parties and their heirs above named Late Sri Attar Singh executed a notarized Will dated 20.11.1991 in favour of petitioner no. 1 in respect of the aforesaid land recorded in Khasra No. 222/3 measuring 1.90 acres (about 10 bigha) situated in Village Johadi, Pargana Kendriya Doon District Dehradun. 1 in respect of the aforesaid land recorded in Khasra No. 222/3 measuring 1.90 acres (about 10 bigha) situated in Village Johadi, Pargana Kendriya Doon District Dehradun. A true copy of Notarized Will dated 20.11.1991 is being filed herewith and is marked as Annexure No. 4 to this writ petition. 5. It is submission of learned counsel for the petitioners that a civil suit has been filed by petitioner no.3 against brother of respondent no.3 and purchaser Yogendra Kumar for declaring that the sale-deed dated 19.07.2013 is vide ab initio. Learned counsel for the petitioners also relied upon the grounds A to Q, which have been mentioned in the writ petition. This Court need not reproduce either any or all of them for the sake of brevity. It is also submission of learned counsel for the petitioners that the essentials of Section 467 IPC are not made and if that section 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 . 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 01.12.2016, and on such subsequent dates as may be instructed by him (I.O.) for interrogation and investigation. 9. 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 01.12.2016, 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 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. 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 him to move for recall of this Order, if he feels aggrieved with the same.