Research › Search › Judgment

Uttarakhand High Court · body

2017 DIGILAW 71 (UTT)

VIKAS JAIN v. STATE OF UTTARAKHAND

2017-01-24

SERVESH KUMAR GUPTA

body2017
JUDGMENT Hon’ble Servesh Kumar Gupta, J. Having heard the pros and cons, it transpires that initially an F.I.R. was lodged on 23.08.2016 by Sri Vijay Kumar (respondent no. 3) against Sri Rishiraj Singh Tomar for the offences of Sections 380, 457 and 406 of I.P.C. read with Section 3(v) SC/ST Act and the brief facts of the said F.I.R. were that Sri Rishiraj Singh Tomar purchased 30 Sq. Mtr. land of Sri Vijay Kumar to raise a construction thereon. Ground and first floors were constructed. The ground floor was taken in occupation by Sri Rishiraj Singh Tomar while the first floor was taken in occupation by Sri Vijay Kumar. Sri Rishiraj Singh Tomar mortgaged his part of the building with bank for some loan and thereafter, by alleged fabrication, another sale deed was got executed by Sri Rishiraj Singh Tomar in the name of his wife so he could succeed to show any third person that his wife is the registered owner of the ground floor of that house. Showing this much, he could convince Sri Vikas Jain alias Rinku Jain for purchase of that house and the latter purchased the said house for due consideration from Sri Rishiraj Singh Tomar. 2. In this backdrop, this F.I.R. was got lodged by Sri Vijay Kumar against Sri Rishiraj Singh Tomar. During investigation, the name of the petitioner came into light with the facts as highlighted above. So, the investigating officer attempted to arrest Sri Vikas Jain and got issued N.B.W. The Criminal Writ Petition No. 59 of 2017 was presented before the High Court by Sri Vikas Jain for quashing of the proceedings undertaken by the Investigating Officer against him. The said writ petition was disposed of on 12.01.2017 by a coordinate Bench of this Court observing that the Investigating Officer will record his satisfaction regarding the grounds, as have been contemplated under Section 41 Cr.P.C. in order to effect the arrest; only then, he will proceed on. The petitioner was also directed to contact the Investigating Officer on 19.01.2017 or on such subsequent dates, as may be instructed by him. 3. The petitioner was also directed to contact the Investigating Officer on 19.01.2017 or on such subsequent dates, as may be instructed by him. 3. Now the controversy starts when the Investigating Officer, without waiting the petitioner’s visit up till 19.01.2017, moved an application to the concerned Magistrate either on 17.01.2017 or on 18.01.2017 for proclamation under Section 82 of Cr.P.C. and the Magistrate was quick enough to sign such proclamation and that is the reason, the said proclamation could find place in the daily newspapers to the high ignominy of Sri Vikas Jain & his family. Feeling aggrieved, now he comes up again with this writ petition. 4. In the light of the facts, as have been stated above by this Court, I think that neither the Investigating Officer nor the Magistrate concerned has hardly felt any concern with the orders of the High Court. They have 3 sidelined the orders of this Court issued on 12.01.2017 because the High Court itself had permitted the petitioner to appear before the Investigating Officer on 19.01.2017, then what was the occasion for the Officer to move the application seeking proclamation under Section 82 Cr.P.C. even one or two days’ before, i.e. on 17.01.2017 or 18.01.2017 and it appears that the Magistrate has also been swayed by the influence of the Investigating Officer and signed promptly such proclamation without appreciating the real facts and even the controversy. The facts, as have been revealed by now, do not disclose any offence against Sri Vikas Jain because whatever offence was committed, it was confined to Sri Rishiraj Singh Tomar only. He was the man, who can be blamed for fabricating the false documents after pledging his house with the bank. In the whole controversy, if Sri Vikas Jain was shown the sale deed in favour of the wife of Sri Rishiraj Singh Tomar then, any prudent man could have agreed for the purchase of the house for due consideration, which Sri Vikas Jain has done. So, I think that all out effort of the Investigating Officer either to arrest Sri Vikas Jain or to procure proclamation under Section 82 Cr.P.C. from the Magistrate is highly prejudicial and arbitrary in nature. I think there is no course open for the Investigating Officer but to close the whole case only against Sri Vikas Jain by way of submitting an appropriate report under Section 173 of Cr.P.C. 5. I think there is no course open for the Investigating Officer but to close the whole case only against Sri Vikas Jain by way of submitting an appropriate report under Section 173 of Cr.P.C. 5. In view of what has been set forth above, the writ petition is hereby accepted and the Investigating Officer is hereby directed to act upon henceforth on the observations of this Court. Sri Vikas Jain shall not be arrested and the proclamation issued against him stands quashed. 6. Urgency Application (IA No. 371 of 2017) stands disposed of.