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2016 DIGILAW 929 (UTT)

Harish Rathore v. State of Uttarakhand

2016-12-07

U.C.DHYANI

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JUDGMENT : U.C. Dhyani, J. 1. The writ petitioner, by means of present Writ Petition, seeks to quash the Case Crime No.115 of 2016, under Sections 376 of IPC, lodged by respondent no. 3, at Police Station Vasant Vihar, District Dehradun. 2. Respondent no. 3 (victim) lodged an FIR against the petitioner for the offence punishable under Sections 376 of IPC on 15.10.2016 with the allegations that the petitioner allured her to have physical relations with him under the promise of marrying her. 3. It is the submission of learned AGA that the investigation in this case is under progress. 4. Petitioner Harish Rathore is present in person, duly identified by his counsel Mr. Shailendra Nauriyal, Advocate. Ms. Smt. Mohani Kumari (reporter-victim) is also present in person, duly identified by her counsel Mr. Shiva Nand Bhatt, Advocate. Both of them stated before the Court that they have married to each other, on their own volition on 25.11.2016, and got registered their marriage with the Registrar, Compulsory Registration of Marriage, Dehradun on 30.11.2016. Photocopy of their marriage certificate has been brought on record as Annexure No. 2 to this petition. Respondent No. 3 (victim) has placed her original mark sheet of High School examination in which her date of birth has been mentioned as 13.02.1993. According to the High School mark sheet, Smt. Mohani Kumari’s (victim) date of birth is 13.02.1993. By that analogy the victim was major when she married to the petitioner. 5. It is the submission of learned counsel for the petitioner as well as respondent no. 3 that since no offence is made out against the petitioner, therefore the petitioner is entitled to relief, as has been claimed by him in the writ petition. 6. Considering the fact that the petitioner and the victim /respondent no.3 are major and have married to each other on their own volition, their marriage has been registered with the Registrar, Marriage at Dehradun, therefore, it will be appropriate to pass the following order in the peculiar facts and circumstances of the case and in the interest of justice. 7. It is provided that the petitioner should be arrested only when the Investigating Officer has reason to believe, on the basis of information and material collected, that he has committed an offence. 7. It is provided that the petitioner should be arrested only when the Investigating Officer has reason to believe, on the basis of 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 15.12.2016, 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 same is accordingly being disposed of at the admission stage itself with the consent of learned counsel for the parties. 11. Let a copy of this Order be supplied to the learned counsel for the petitioner today itself on payment of usual charges.