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2016 DIGILAW 949 (UTT)

Vikash Sharma v. State of Uttarakhand

2016-12-09

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. 1. Since all the three writ petitions have been filed against the same FIR and the controversy involved in the above writ petitions is the same, therefore, these writ petitions are being decided together by this common Judgment for the sake of brevity and convenience. 2. By means of present writ petitions, 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 dated 02.12.2016 (Annexure No.1), registered as Case Crime No. 324 of 2016 under Sections 406, 420, 467, 468 of IPC, PS Kotdwar, District Pauri Garhwal. (b) Issue a writ, order or direction in the nature of mandamus commanding the respondents no. 1 & 2 not to take coercive action against the petitioner in connection with impugned FIR dated 02.12.2016 (Annexure No.1), registered as Case Crime No. 324 of 2016 under Sections 406, 420, 467, 468 of IPC, PS Kotdwar, District Pauri Garhwal.” 3. 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. 4. It is the submission of learned senior counsel for the petitioners that there is no role assigned to Vikas Sharma (petitioner in WPCRL No.1644 of 2016), inasmuch as, he was transferred from Kotdwar Branch to Meerut Branch in the month of February, 2015. Atul Raj Chaudhary (petitioner in WPCRL No.1645 of 2016) was his successor. It will be relevant to reproduce para 4(c) and 4 (d) of Atul Raj Chaudhary’s petition for the purpose of deciding the above three writ petitions. “4 (c ) – However, when respondent no.3 did not repay the installments on time due to which respondent no.3’s accounts were categorized as NPA (non performing asset) by the Bank’s Automated System (computerized system) and accordingly a notice dated 01.04.2015 under Section 13 (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘SARFAESI Act’) was served upon the respondent no.3 by the regional branch office region 3, Dehradun of the State Bank of India to the respondent no. 3 on 02.04.2015. The respondent no. 3’s outstanding on the said notice were rightly reflected as per banking regulations i.e. up to 31.03.2015. 3 on 02.04.2015. The respondent no. 3’s outstanding on the said notice were rightly reflected as per banking regulations i.e. up to 31.03.2015. 4(d) – When the respondent no.3 did not deposit the requisite amount within 60 days, the Bank after giving additional 20-25 days (in addition to the 60 days) as prescribed by earlier notice under Section 13(2) was compelled to issue a possession notice dated 04.07.2015 under Rule 9 (1) of the Security Interest (Enforcement) Rules, 2002) whereby symbolic possession of the secured assets was taken.” 5. The allegation against the petitioner Suryajeet Singh (petitioner in WPCRL No.1646 of 2016) is that he ought to have put signatures on the application under Section 14 (1) of the SARFAESI Act for taking possession of the secured assets. Instead of putting signatures of Suryajeet Singh, Atul Raj Chaudhary put his signatures. Learned counsel for the petitioners also submitted that the action of the petitioners is covered by Section 14 (1) of the SARFAESI Act, inasmuch as; it has been done in good faith. 6. Although, one of the offences alleged against the petitioners entails punishment for more than 7 years, but learned senior 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 . 7. 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. 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 petitioners. 9. 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. 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 petitioners. 9. Petitioners are directed to contact the Investigating Officer of the case on 16.12.2016, 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 petitions 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 are 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 petitions, this Court does not feel it necessary to issue notice to the respondent no. 3. Still, liberty is granted to him to move for recall of this Order, if he feels aggrieved with the same.