Shyam Kumar Pradhan (Retd. Colonel) v. State of Uttarakhand
2016-12-15
U.C.DHYANI
body2016
DigiLaw.ai
JUDGMENT : U.C. Dhyani, J. By means of present writ petition, the petitioner prays for the following reliefs, among others:- “(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned FIR dated 25.11.2016 registered at Police Station Cantt., District Dehradun, vide Case Crime No. 180 of 2016, under Sections 420, 467, 469 and 471 of IPC. (b) Issue a writ, order or direction in the nature of mandamus directing the respondent no. 2 not to arrest and harass the petitioner in Case Crime No. 180 of 2016, under Sections 420, 467, 469 and 471 of IPC, registered at Police Station Cantt., District Dehradun.” 2. Heard learned counsel for the petitioner, learned counsel for the State, perused the documents brought on record and considered the grounds taken up in the writ petition. 3. It is the submission of learned counsel for the petitioners that the first information report has been lodged by one Shri Shiv Charan, represented by Shri Rajat Mittal, Advocate. The FIR has been lodged by Shiv Sharan s/o Ram Sharan with an averment that his father is recorded bhumidhar along with the present petitioner and other co-sharers in the disputed property which is in khata no. 42 khasra no. 185, village Vijaypur, Hathibadkala, District Dehradun. It has further been alleged that the petitioner in his own capacity executed certain sale-deed. The petitioner has duly constituted attorney of Smt. Kalawati Pradhan, also recorded co-bhumidhar, executed another sale-deed dated 31.10.2008 without consent of the complainant. It is the submission of learned counsel for the petitioner that the respondent no. 3 has admitted in the first information report that petitioner is a co-bhumidhar. 4. In the FIR complainant has specifically admitted the petitioner as co-bhumidhar. It has further been admitted that Smt. Kalawati Pradhan is also co-bhumidhar and thus the FIR proceeds on the basis that the petitioner as well as Smt. Kalawati Pradhan are owners of their respective shares and there is no allegation that the sale deed have been executed beyond their share or without there being any right title or interest of petitioner. The sale-deed of 150 sq. m. as duly constituted attorney of Smt. Kalawati Pradhan, was executed by the petitioner on 31.10.2008 in favour of Sher Bahadur, consideration of this sale of the property was passed on to Smt. Kalawati Pradhan.
The sale-deed of 150 sq. m. as duly constituted attorney of Smt. Kalawati Pradhan, was executed by the petitioner on 31.10.2008 in favour of Sher Bahadur, consideration of this sale of the property was passed on to Smt. Kalawati Pradhan. The purchaser of the aforementioned property applied for mutation of his name and the case was numbered as 582/2008-09. It is submitted that by the order of Additional Tehsildar passed in case aforementioned name of purchasers were duly mutated for 150 sq.m. in khasra no. 185 in place of Smt. Kalawati Pradhan. The complainant has lodged the FIR primarily on the basis that sale-deed executed on behalf of Smt. Kalawati Pradhan and the two sale-deeds executed by the petitioner dated 12.09.2012, whereby the petitioner transferred part of his own shares were executed without consent of the complainant. 5. Learned counsel for the respondent no. 3 opposed the writ petition and submitted that the petitioner is not entitled to any protection. He also opposed the writ petition on the ground that fake papers were manufactured by the petitioner. 6. 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 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. 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.
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 22.12.2016, 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 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.