Uttarakhand High Court
Girdhari Lal Sahu vs State Of Uttarakhand And Others on 4 August, 2016
Equivalent citations: 2016 CRI. L. J. 4310, (2017) 169 ALLINDCAS 384 (UTR), (2016) 97 ALLCRIC 267, (2017) 1 CURCRIR 170
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (Criminal) No. 967 of 2016
Girdhari Lal Sahu ....... Petitioner
versus
State of Uttarakhand & others ....... Respondents
Mr. Arvind Vashisth, Senior Advocate assisted by Mr. K.R. Gazi, Advocate for
the petitioner.
Mr. K.S. Rautela, Government Advocate assisted by Mr. Milind Raj, Brief
Holder for the State / respondent nos. 1 and 2.
U.C. Dhyani, J.(Oral)
By means of present criminal writ petition, the petitioner seeks following reliefs, among others:
i) Issue a writ, order or direction in the nature of certiorari to quash the first information report dated 26.07.2016 in FIR no. 201 of 2016, under Sections 420, 467, 468, 471, 506 IPC, at police station Kichcha, District Udham Singh Nagar.
ii) Issue a writ, order or direction in the nature of mandamus commanding the respondent no. 2 not to arrest and not to harass the petitioner in FIR no.
201 of 2016, under Section 420, 467, 468, 471, 506 IPC at police station Kichcha, District Udham Singh Nagar.
2) An FIR was lodged by respondent no. 3 against the petitioner on 26.07.2016 for the offences punishable under Sections 420, 467, 468, 471, 506 IPC. The relevant portion of said FIR reads as under:
"...Khasra no. 107 in Village Chutki Deveria is recorded in my (reporter's) name. An agreement to sell 2 was entered into between the applicant (read informant / reporter) and G.L. Sahu s/o Ram Swaroop, r/o Brajanand Vihar, Lalpur, R.T.O. Road, Haldwani, in which it was agreed that the sale deed will only be executed between the applicant and G.L. Sahu. G.L. Sahu concealed this fact from the applicant that the sale deed cannot be executed in his (G.L. Sahu's) name. According to the agreement to sell, out of four portions, first two portions (of land) were to be registered in the name of Mahendra Singh Bisht. It was agreed orally, as well as on the basis of agreement to sell that plotting will be done on the said land, and all the conditions will be fulfilled accordingly. But, G.L. Sahu did not fulfill any of the conditions. He even sold the passage etc. to other persons and got the same registered in other's favour. G.L. Sahu himself is the witness of the sale deed, which was executed by him in favour of Mahendra Singh Bisht, Girish Chandra Joshi. G.L. Sahu has cheated and committed forgery in relation to the transaction of the land. Inspite of the expiry of the duration, he did not execute the sale deed. Many a people came to take possession over that land which was sold by G.L. Sahu in applicant (reporter's) favour. A few names are -Dinesh Kumar, Mahesh Gangwar and Manoj Sharma. G.L. Sahu has also threatened him to vacate the land....".
3) Section 467 IPC deals with forgery of valuable security, will, etc. The same is being reproduced here-in- below for convenience:
"467. Whoever forges a document with purports to be a valuable security or a will, or an authority to adopt a son, or which purports to given authority to any person to 3 make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
4) Further, Section 468 IPC deals with forgery for purpose of cheating, which Section is being reproduced here-in-below for convenience:
"468. Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
5) Section 420 IPC speaks about cheating and dishonestly inducing delivery of property. The same reads as under:
"420. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."4
6) Section 471 IPC says about using as genuine a forged document or electronic record. The said Section is also being reproduced hereunder for the sake of convenience:
"471. Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record."
7) Section 506 IPC envisages that whoever commits the offence of criminal intimidation shall be punished.
8) On a bare reading of FIR, offences punishable under Sections 420 and 506 IPC are prima facie made out. But, where is the forgery of a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereupon etc.? Where is the question of committing forgery intending that the document shall be used for the purpose of cheating? Where is the question of fraudulently or dishonestly using as genuine any document which the accused knows or has reason to believe to be forged? The allegations, prima facie, attract Sections 420 and 506 IPC, besides civil remedies which are available to the reporter. When a criminal intention is fastened in the 5 transaction, civil dispute turns into a criminal dispute (offence).
9) If for the sake of argument, the Court comes to the conclusion that only offences punishable under Sections 420 and 506 IPC are prima facie made out, the question is - whether the applicant is entitled to be given the benefit of Section 41 Cr.P.C.? Had, on a bare perusal of the FIR, other offences, which entail a punishment of more than seven years been attracted, the position would have been different. The law has been beautifully summed up by the Hon'ble Apex Court in Arnesh Kumar vs State of Bihar and another, (2014) 8 SCC 273. It is the bounden duty of this Court to reproduce the directions issued by the Hon'ble Apex Court in the said decision of Arnesh Kumar (supra). The same reads as under:
"7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a terms which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police office before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to present the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.6
7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest.
7.3 In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further 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."
10) The Court may also rely upon yet another decision of Hon'ble Apex Court in Siddharam Satlingappa Mhetre vs State of Maharashtra and others, reported in (2011) SCC 694. The said decision was given by the Hon'ble Apex Court on anticipatory bail, which is not applicable in this State. But, it does not mean that an accused is remediless. One can file a criminal writ petition for obtaining stay of his arrest during the investigation and, therefore, the present criminal writ petition has been filed by the petitioner.
11) Learned counsel for the petitioner drew attention of this Court towards paragraphs 89, 90, 112 and 113 of Siddharam Satlingappa Mhetre's case (supra), which paragraphs are excerpted herein below for convenience:
7"89. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided.
90. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.
112.The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or other offences;
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available martial against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the 8 cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and the there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record."
12) This Court decided criminal writ petition no. 912 of 2016, titled as Pradeep Kumar vs State of Uttarakhand and others on 27.07.2016. In that case, this Court found that the petitioner was not entitled to any relief and, therefore, the criminal writ petition was dismissed. The relevant paragraphs no. 7 and 8 of said judgment will be useful for proper adjudication of the present writ petition. The same are being reproduced hereunder:
"7. The accused-petitioner is alleged to have committed forgery in his UTET-I certificate and succeeded in getting the job of Assistant Teacher on the basis of said fake document. The nature and gravity of 9 the accusation, therefore, suggests that the petitioner should not be granted protection from arrest. Since he himself has allegedly done it, therefore, he cannot plead that somebody else did it. He himself is beneficiary of such an illegal act. The first information report has been lodged by an officer of the Education Department. Why would he lodge a wrong first information report? Why would he level wrong allegations against a teacher of his own department? It, therefore, does not appear that the accusations have been made against the petitioner with the object of injuring or humiliating the petitioner by arresting him. If protection of arrest is granted to the petitioner in such a case, it will have a large magnitude affecting a very large number of people. It does not appear to be a case of over implication of the petitioner with the aid of Section 34 and Section 149 IPC. There is no iota of doubt in the mind of the Court that the first information report is not frivolous. The observations made by this Court are based on the factual information supplied by the first information report and copies of documents which have been brought on record by the petitioner.
8. In a nutshell, if a teacher, who succeeded in getting the employment by making a forgery for UTET-I certificate is granted interim protection from arrest, the same will not serve the interest of justice. The Court has to strike a balance between the individual interest and societal interest. When the societal interest overweighs private interest, it will not be advisable to grant interim protection from arrest."
13) Present case is on different footing. This Court had already narrated the FIR version in paragraph 2 of this 10 judgment. The facts of Pradeep Kumar's case have also been reproduced in one of the foregoing paragraphs of this judgment. This Court is, therefore, of the opinion that present case of the petitioner will be governed by Section 41 Cr.P.C. or, in other words, the proposition of law laid down by Hon'ble Apex Court in Arnesh Kumar's case (supra) will hold good to the instant case.
14) The petitioner is, therefore, entitled to relief on this ground alone.
15) In the sequence of events, the petitioner has tried to give political colour to the incident. Learned Government Advocate has placed a list of criminal cases to show that the petitioner has criminal antecedents. The first case was registered against the petitioner in the year 1981, followed by others in 1982, 1983, 1985, 1986, 1990, 1991, 1993, 1995, 1996, 1997, 1998, 1999, 2002, 2003, 2004, 2006, 2007. The range of criminal activities of the petitioner varies from simple case of assault/abuse to Goonda Act, attempt to murder and even murder, besides cheating and forgery. In reply, learned Senior Counsel for the petitioner submitted that the petitioner has been acquitted in all cases, but for one which is under Section 302 IPC, which has been stayed by Allahabad High Court.
16) It may be noted here that the State of Uttarakhand was carved out from the erstwhile State of Uttar Pradesh only on 09.11.2000. The person against whom an attempt has been made to level accusations was not at the helm of affairs of the State in 1981 or, for that 11 matter, till 2014. It, therefore, cannot be said that the person against whom accusations have been levelled in the writ petition was instrumental in lodging FIRs against the petitioner, which relate to incidents as far back as 1981 till 2007. The Court is, therefore, of the opinion that the petitioner is not entitled to relief on those grounds, which have been narrated in the sequence of events, but he is entitled to relief on the basis of law propounded by Hon'ble Apex Court in Arnesh Kumar's case (supra).
17) This Court has been informed that several FIRs have been lodged against the petitioner. The first such FIR was lodged on 26.07.2016. The other FIRs, it is informed by learned Senior Counsel for the petitioner, were lodged on subsequent dates by other reporters, but the dispute relates to the same agreement to sell, i.e., in respect of same landed property.
18) The interpretation of Section 41 Cr.P.C. is unambiguous. It does not say that the petitioner cannot, at all, be arrested. It only empowers the Investigating Officer to arrest the wrongdoer only when the Investigation Officer has reason to believe, on the basis of information and material collected, that the accused has committed an offence. Before making the 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 Cr.P.C. It will not be based upon the ipse dixit of the Police Officer. If the conditions stipulated in Sub-Clauses (a) to (e) of Clause (1) of Section 41 Cr.P.C. are satisfied, the Investigating Officer is at 12 liberty to arrest any wrongdoer / offender, but if the material is not found by him, then the law stipulates that the accused should not be arrested,
19) Petitioner is, therefore, directed to contact the Investigating Officer of the case on 11.08.2016, and on such subsequent dates, as may be instructed by him. The petitioner shall not leave the State of Uttarakhand without prior permission of this Court, till the investigation is completed.
20) With the direction as above, the criminal writ petition is disposed of summarily at the admission stage itself.
21) Since present writ petition is being disposed of without issuing notice to respondent no. 3, therefore, respondent no. 3 is granted liberty to move for recall of this order, if he feels aggrieved with the same.
[Stay application no. 7799 of 2016 also stands disposed of.]
22) As prayed, let a copy of this order be supplied to learned counsel for the petitioner today itself on payment of usual charges.
(U.C. Dhyani, J.) Dt. August 04, 2016.
Negi