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2017 DIGILAW 49 (UTT)

Bhura @ Bhure v. State of Uttarakhand

2017-01-12

U.C.DHYANI

body2017
JUDGMENT : U.C. Dhyani, J. By means of present writ petition, the petitioner seeks the following reliefs, among others: “(a) Issue a writ, order or direction in the nature of certiorari to quash the FIR No. 199 of 2016, under Section 376 IPC & under Section ¾ of the POCSO Act, Police Station Banbhulpura (Haldwani), District Nainital. (b) Issue a writ, order or direction in the nature of mandamus commanding the respondent no.2 not to arrest the petitioner in FIR No. 199 of 2016, under Section 376 IPC & under Section ¾ of the POCSO Act, Police Station Banbhulpura (Haldwani), District Nainital.” 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. Respondent no. 3 and his daughter are present in person before this Court duly identified by their counsel Mr. Ashok Joshi, Advocate. According to learned counsel for the parties, the victim is more than 18 yeas old and petitioner intends to marry the daughter of respondent no. 3. Daughter of respondent no.3, also states that she is willing to marry the petitioner on her own volition. This Court, in the absence of any documentary proof, is not in a position to hold that the daughter of respondent no.3 is major. The same is left to be determined by the I.O. 4. Considering the facts as narrated above and the grounds taken up in the writ petition, the following order is passed in the interest of justice. 5. The petitioner should be arrested only when the Investigating Officer has reason to believe, on the basis of 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. 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. 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 19.01.2017, and on such subsequent dates as may be instructed by him (I.O.) for interrogation and investigation. 8. When the investigation of the case will be conducted, it will either culminate into filing of the charge-sheet or submission of final report. This Court has no occasion to interfere in the investigation in between. 9. Therefore, it will be of no use keeping the present criminal writ petition pending. Criminal Writ Petition is, accordingly, disposed of at the admission stage itself, with the consent of learned counsel for the parties. 10. Let a copy of this Order be supplied to the learned counsel for the petitioner today itself on payment of usual charges.