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2016 DIGILAW 971 (UTT)

Sanjay Kumar v. State of Uttarakhand

2016-12-15

U.C.DHYANI

body2016
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 quash the impugned FIR dated 11.11.2016 lodged by the respondent no.3 at Police Station Vikasnagar, which has been registered as FIR No. 251 of 2016 relating to offences punishable under Sections 498-A, 323, 328, 377, 504, 506 of IPC and Section 3, 4 of the Dowry Prohibition Act. (b) Issue a writ, order or direction in the nature of mandamus commanding the respondent no. 1 & 2 not to take any coercive steps against the petitioner including his arrest pursuant to the impugned First Information Report dated 11.11.2016 lodged by the respondent no.3 at Police Station Vikasnagar, which has been registered as FIR No. 251 of 2016 relating to offences punishable under Sections 498-A, 323, 328, 377, 504, 506 of IPC and Section 3, 4 of the Dowry Prohibition Act.” 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. Firstly, the respondent no.3 filed an application under Section 125 Cr.P.C. Thereafter, proceedings under Section 13 of the Hindu Marriage Act were started and, only then, present first information report was lodged. The present writ petitioner is the husband. The other co-accused persons have been granted interim protection from arrest. 4. Although, Section 377 IPC 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 . 5. 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. 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. 6. 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. 7. 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. 8. 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. 9. 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 her to move for recall of this Order, if she feels aggrieved with the same.