Research › Search › Judgment

Uttarakhand High Court · body

2020 DIGILAW 360 (UTT)

Shivender Singh v. State Of Uttarakhand

2020-10-01

RAVINDRA MAITHANI

body2020
JUDGMENT Ravindra Maithani, J. - Petitioner seeks quashing of the FIR No. 197 of 2019, under Section 307 and 392 IPC, Police Station Prem Nagar, District Dehradun. 2. Heard learned counsel for the parties through video conferencing and perused the record. 3. According to the FIR, on 07.10.2019 at 3:15 PM, two persons visited the shop of the informant and at the gunpoint looted gold, which was worth Rs.2 lakh. After investigation, charge sheet has been submitted against four persons under Sections 395, 398, 412 and 307 IPC and IO has written that investigation is continued against the petitioner and others. 4. Petitioner earlier filed a Writ Petition (Criminal) No. 84 of 2020, which was dismissed on 10.01.2020, and the Court passed the following order:- "The petitioner has been shown as to be an accused for the commission of offence under Sections 307 and 392 of IPC. It was during the course of the investigation that the involvement of the present petitioner in the commission of the aforesaid offence has been disclosed by the other co-accused, when he was recording his statement before the Investigating Officer while participating in the investigation. After having heard the learned counsel for the petitioner, as well as the learned AGA, and without expressing any opinion on the merits of the matter, this Court, looking to the set of allegations, and particularly, the allegations and role allegedly assigned with regards to the commission of offence under Sections 307 and 392 IPC, this Court is not inclined to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India, the writ petition (criminal) is hereby dismissed accordingly. However, the dismissal of the writ petition would not prejudice the rights of the petitioner, to have his recourse which is legally available to him under law to apply for a bail, and if he does so within a period of two weeks from today, the same would be considered by the competent Court in accordance with law, as expeditiously as possible, but not later than one week from the date of presentation of the bail application. Subject to above observation, the writ petition (criminal) lacks merits hence the same stands dismissed." 5. Learned counsel for the petitioner would submit that earlier writ petition was not decided on merits, because the documents were not before the Court. Subject to above observation, the writ petition (criminal) lacks merits hence the same stands dismissed." 5. Learned counsel for the petitioner would submit that earlier writ petition was not decided on merits, because the documents were not before the Court. It is argued that the petitioner is not named in the FIR. His name is not in the general diary entry. The informant is not certain, even after two weeks as to how much gold was looted from his shop. A list which was submitted was not signed and the weight of the gold was different in it. It is argued that the accused Sonu Yadav was a Driver in the family of the petitioner and there was dispute with regard to the salary, therefore, he falsely implicated the petitioner. 6. Learned counsel for the petitioner also argued that the family members of the petitioner are also being threatened by the police; police has unauthorisedly raided the house of the petitioner, but they did not recover anything; police officers are threatening the petitioner to arrest; petitioner is ready to cooperate in the investigation, but before arrest he should be given a notice as requird under Section 135 of the Code of Civil Procedure, 1968 ("CPC"). 7. On behalf of the State, it is argued that second writ petition is not maintainable; though the petitioner was not named in the FIR, but during investigation, his name came into light.; the looted gold was recovered from the co-accused and the petitioner is absconding and proclamation under Section 82 of the Code of Criminal Procedure, 1973 ("the Code") has already been issued against him. It is also argued that there are other cases pending against the petitioner in Delhi. At which, learned counsel for the petitioner would submit that the case which is pending against the petitioner in Delhi is his family matter. 8. It is true that the petitioner is not named in the FIR, but petitioner himself has enclosed a general diary details, Annexure 4, in which, the arrested co-accused have told it to the IO that they have given gold to the petitioner. 9. It is misconceived argument that the petitioner is required to be given a notice under Section 135 CPC. The provision of CPC are applicable in Civil proceeding. In the Criminal cases like the instant one, the provisions of the Code are applicable. 10. 9. It is misconceived argument that the petitioner is required to be given a notice under Section 135 CPC. The provision of CPC are applicable in Civil proceeding. In the Criminal cases like the instant one, the provisions of the Code are applicable. 10. What is being argued is that the petitioner has been falsely implicated by the co-accused. But, this is a writ petition under Article 226 of the Constitution of India. This Court cannot examine the credibility and trustworthiness of the averments, which comes up during investigation. 11. What was the weight of gold which was looted? What was the role of each of the accused? These are not the matters for scrutiny in this writ petition. They are subject to scrutiny during investigation, or at trial, as the case may be. It is the case of the petitioner himself that he has been falsely implicated by the co-accused, But, as stated, this cannot be tested here in this writ petition. Therefore, there is no merit in this petition. 12. Apart from it, in fact, the petitioner had earlier filed similar writ petition being WPCRL No. 84 of 2020 and it was dismissed on 10.01.2020. The order dated 10.01.2020, as quoted hereinabove, clearly shows that it was an order passed on merits and on similar grounds second writ petition is not maintainable. Therefore, the writ petition deserves to be dismissed on this ground also. 13. The petition is dismissed.