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2023 DIGILAW 245 (UTT)

Karthik Jayashankar v. State of Uttarakhand

2023-03-31

RAVINDRA MAITHANI

body2023
JUDGMENT : By means of the instant petition under Article 226/227 of the Constitution of India, the petitioners seek the following reliefs:- (a) CALL for the records pertaining to SC/ST Case No.06/2020 which was pending before the Court of District and Sessions Judge, Nainital and quash/set aside the Impugned Orders dated 09.09.2022, 23.09.2023 and 06.01.2023, to the limited extent to which they state that the petitioners were “released from the police station”, and expunge the adverse remarks passed against them; and (b) Pass any other order(s) that this Hon’ble Court deems fit and proper in the facts and circumstances of the present case and in the interests of justice. 2. Heard learned counsel for the parties and perused the record. 3. The record reveals that on an FIR No.3 of 2020, lodged at Revenue Police Station Sarna, Tehsil Dhari, District Nainital, after investigation, charge-sheet was submitted and the proceedings of Special Sessions Trial No.6 of 2020, State vs. Smt. Parvati Lal and another was instituted against the petitioner in the court of District and Sessions Judge/Special Judge, SC/ST Act, Nainital (for short, “the case”). The petitioners challenged the proceedings of the case in Criminal Misc. Application No.530 of 2020, Karthik Jayashankar and another vs. State of Uttarakhand and another (for short, “the petition”). The petition was allowed by this Court on 22.08.2022. Paras 44 and 45 of the order dated 22.08.2022 of this Court, passed in the petition are relevant which are as hereunder:- “44. The above factors taken together make this Court to conclude that, in fact, the respondent no.2 initiated the proceedings with malafide. The entire proceedings are vitiated by malafide. Accordingly, it deserves to be quashed. 45. The petition is allowed. The impugned chargesheet, cognizance order and entire proceedings of the case are quashed.” 4. The grievance of the petitioners did not stop here, it continued, even thereafter. Pursuant to the order dated 22.08.2022, when the concerned court took up the case, it passed an order on 09.09.2022, it recorded two statements namely, (i) the proceedings of the case had been quashed on the basis of amicable settlement between the parties and; (ii) the petitioners were released from the police station under Section 41A of the Code of Criminal Procedure, 1973 (for short, “the Code”). 5. 5. It has been the grievance of the petitioner that, in fact, the petition was not decided on the basis of amicable settlement between the parties and secondly, the petitioners were never taken into custody; they were never released from any police station. In order to seek correction in the order dated 09.09.2022, passed in the case, petitioners moved an application before the concerned court on 23.09.2022. That application dated 23.09.2022 was decided by an order dated 23.09.2022 passed in the case. The court although corrected that the petition had not been decided on the basis of the amicable settlement. But, the court refused to correct the statement as recorded in its order dated 09.09.2022 to the effect that the petitioners were released from police station on a notice under Section 41A of the Code. 6. The petitioners were still aggrieved. They moved another application on 06.01.2023, so that the record may be corrected and it should not reveal factually un-correct statement. It has been the case of the petitioners that they were never taken into the custody; they were never released from the police station. The application dated 06.01.2023 was rejected by the order dated 06.01.2023, passed in the case and the court still confirmed that the petitioners were released from the police station on a notice under Section 41A of the Code. In fact, in its order dated 06.01.2023, the court warned the petitioners not to raise the issue again and again. 7. Learned counsel appearing for the petitioners would submit that, in fact, when the investigation was pending, the notice under Section 41A of the Code was served on the petitioners, but the petitioners never appeared before the Investigating Officer. They sought time, therefore, it is submitted that in the impugned order the fact that the petitioners were released from police station on a notice under Section 41A of the Code is incorrect. It requires to be corrected, as also adverse remarks, which had been made in the impugned order need to be expunged. 8. Learned State counsel would submit that this petition may be decided today. He would admit the factual position, as stated by the learned counsel for the petitioners. 9. What is interesting in this case is that when the petition came up for hearing before this Court, an argument was raised on behalf of the petitioners that the investigation was bias. Learned State counsel would submit that this petition may be decided today. He would admit the factual position, as stated by the learned counsel for the petitioners. 9. What is interesting in this case is that when the petition came up for hearing before this Court, an argument was raised on behalf of the petitioners that the investigation was bias. In para 4.15 of the judgment dated 22.08.2022, this Court noted that part of argument on this aspect. This paragraph is as hereunder:- “4.15. The investigation has been hostile in the case. The Investigating Officer (“IO”) had given a notice under Section 14A of the Act on 24.06.2020 to the petitioner no.1 to appear before him on 25.06.2020. The petitioner represented through lawyer and sought some time. They also filed a Writ Petition challenging the FIR and in that Writ Petition (Criminal) No. 1855 of 2020, Karthik Jayashankar and Another Vs. State of Uttarakhand and Another, on 26.06.2020, the Court has been pleased to pass interim order restraining the State to take any coercive steps against the petitioners. But, it is argued that thereafter, chargesheet was filed by the IO on 20.07.2020, without further requiring the presence of the petitioners. It is also argued that, in fact, in the FIR, Vijay Adhikari has been made a witness deliberately, so as to make a case against the petitioners. Learned counsel for the petitioner would submit that earlier in the year 2017 also, there was a dispute between the petitioners and the informant, in which on 12.10.2017, a settlement was entered into, which was also witnessed by Vijay Adhikari.” 10. This argument, as raised was appreciated by this Court in its judgment dated 22.08.2022, passed in the case and in para 5.11 the admitted position has been stated, which is as hereunder:- “5.11. Admittedly, according to learned Senior Counsel, a notice under Section 41A of the Code was given to the petitioners but they did not participate in the proceedings. They took time. The Investigating Officer, after completing the Investigation submitted the chargesheet. It cannot be faulted with. It cannot be said that the investigation is hostile. The Investigating Officer had approached the petitioners.” 11. It is well settled that the power of arrest is one thing and necessity to arrest is quite distinct. Section 41 of the Code makes provisions in this respect. It cannot be faulted with. It cannot be said that the investigation is hostile. The Investigating Officer had approached the petitioners.” 11. It is well settled that the power of arrest is one thing and necessity to arrest is quite distinct. Section 41 of the Code makes provisions in this respect. It speaks as to under what circumstances, the police officer may arrest, but it also requires that the police officer shall record reasons for arrest. The proviso to Section 41(1) of the Code further speaks that the police officer may also record the reasons for not arresting a person. 41A is a consequence to it, if a police officer decides not to arrest a person, he would issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. 12. Admittedly, such notices were issued to the petitioners and this Court on 22.08.2022 has concluded that, in fact, the petitioners did not appear before the Investigating Officer. They sought time. There has been no opportunity for anyone to take them into custody. 13. Learned counsel for the petitioners would also submit that, in fact, in the Criminal Writ Petition No.855 of 2020, this Court had issued interim protection to the petitioners directing the police not to take any coercive steps against the petitioners. These factual narrations make it abundantly clear that, in fact, the petitioners were never taken into custody. Therefore, the statement which has been recorded in the impugned order that “the petitioners were released from the police station under Section 41A of the Code” is factually incorrect. This part of order and other adverse remarks made against the petitioners in the impugned orders are expunged. 14. The petition is allowed accordingly.