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2017 DIGILAW 13 (UTT)

Balkrishna Pathak v. State of Uttarakhand

2017-01-10

U.C.DHYANI

body2017
JUDGMENT : U.C. Dhyani, J. By means of present writ petition, the petitioner prays for the following relief, 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), case crime no. 324 of 2016, under Sections 406, 420, 467,468 IPC, PS Kotdwar, District Pauri Garhwal (b) Issue a writ, order or direction in the nature of mandamus commanding the respondent nos. 1 & 2 not to take coercive action against the petitioner in connection with impugned FIR dated 02.12.2016 (Annexure No.1), case crime no. 324 of 2016, under Sections 406, 420, 467,468 IPC, PS Kotdwar, District Pauri Garhwal.” 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. According to learned counsel for the petitioner it was respondent no.3, who obtained the loan and did not repay the same. Instead of returning the same he has levelled forged allegations against the petitioner that he has taken the bribe. According to learned Senior Counsel the allegation is levelled just to save himself (respondent no.3) from repaying the loan amount, which he (respondent no. 3) has taken from the Bank. 4. Although, one of the offences alleged against the petitioner 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 Supreme Court Cases 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. 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. 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 17.01.2017, 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 him to move for recall of this Order, if he feels aggrieved with the same.