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2016 DIGILAW 976 (UTT)

Mamta Rawat v. State of Uttarakhand

2016-12-16

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) Issue a writ, order or direction in the nature of certiorari quashing the impugned first information report dated 07.12.2016 registered at Police Station Dalwanwala, District Dehradun vide Case Crime No. 210 of 2016, under Sections 420, 466, 471, 506 and 120B 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. 210 of 2016, under Sections 420, 466, 471, 506 and 120B of IPC.” 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. A first information report was lodged against the named accused including the present petitioners for the offences punishable under Sections 420, 466, 471, 506 and 120B of IPC, alleging therein that they in furtherance of their common intention sold a piece by committing forgery and also threatened with dire consequences. 4. Petitioner no.1 and respondent no.3 are owners and in possession of land duly purchased from Amit Kumar Aggarwal vide two separate sale-deeds dated 12.05.2010 duly registered at the office of sub-registrar, Dehradun. Amit Aggarwal was the owner to the extent of 35 % of joint property known as 8 Chander Road, Dehradun along with other co-owners namely, Jaswant Singh, Smt. Lakshmi Negi, Smt. Manju Lata and Smt. Manorma Bhandari etc. A suit was filed in the year 1995 by one Amit Kumar Aggarwal and others before the court of Civil Judge (SD) bearing no. 579 of 1995, 580 of 1995, 582 of 1995 Rajeshwar Pathak vs. Miss Maitri Chaudhary claiming his title over the property in suit at Dehradun where Amit Kumar Aggarwal was the plaintiff no. 4. The said suit was for the cancellation and declaration of sale-deed dated 12.08.1991 as invalid and not binding upon the petitioner no.1 and respondent no.3 including Amit Kumar Aggarwal. 5. 4. The said suit was for the cancellation and declaration of sale-deed dated 12.08.1991 as invalid and not binding upon the petitioner no.1 and respondent no.3 including Amit Kumar Aggarwal. 5. A part of the said property to the extent of 35 % was received by Amit Aggarwal in a compromise between all the parties claiming their interest over the property vide decree of the court of Civil Judge (S.D./FTC II, in Suits No. 579 of 1995, 580 of 1995, 582 of 1995, Rajeshwar Patthak vs. Miss Maitri Chaudhary and others dated 04.01.2005 on the basis of compromise entered into by the parties to the said suit. 6. The said suit was diligently contested and vide judgment and decree dated 04.1.2005 the learned Court of Civil Judge (SD)/FTC II on the basis of written compromise paper no. 43A delivered judgment in the said suit and Amit Kumar Aggarwal was awarded 35% share of the joint property bearing municipal no. 8, Chander Road, Dehradun. It is also pertinent to mention here that Amit Kumar Aggarwal has been in peaceful possession and ownership of the above property ever since the date of decree of the learned court as mentioned above. 7. Under the aforementioned circumstances the Suit No. 304 of 2012 was filed by the petitioner and the respondent no.3 seeking relief of mandatory injunction in favour of petitioner and respondent no.3 separately restraining the State of Uttarakhand and others from engaging or interfering in the ownership and possession of the petitioner no.1 in property mentioned in Schedule - A of the plaint and in favour of respondent no.3 for the property mentioned in Schedule-B. 8. 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. 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. 9. 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. 10. Petitioners are directed to contact the Investigating Officer of the case on 23.12.2016, and on such subsequent dates as may be instructed by him (I.O.) for interrogation and investigation. 11. 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. 12. 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.