Uttarakhand High Court
Umesh Kumar Sharma vs State Of Uttarakhand & Others on 15 November, 2018
Author: Alok Singh
Bench: Ramesh Ranganathan, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (Criminal) No. 2113 of 2018
Umesh Kumar Sharma. ............ Petitioner
Versus
State of Uttarakhand & others. ............ Respondents
Mr. K.T.S. Tulsi, Senior Advocate, assisted by Mr. Aamir Khan, Mr. Karan Gogna and
Mr. Jitendra Chaudhary, Advocates for the petitioner.
Mr. S.N. Babulkar, Advocate General, assisted by Mr. Amit Bhatt, Deputy Advocate
General for the State of Uttarakhand / respondent Nos. 1 to 3.
Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Singh, J.
Impleadment Application No. 17825 of 2018:
The Impleadment Application is not opposed and is, therefore, ordered. Mr. Virendra Singh Rawat shall stand impleaded as respondent No. 8 in the criminal writ petition. The Application is disposed of accordingly.
Writ Petition (Criminal) No. 2113 of 2018:
2. Writ petition is admitted. Learned Deputy Advocate General for the State of Uttarakhand takes notice on behalf of respondent Nos. 1 to 3. Mr. Jitendra Chaudhary, learned counsel for the petitioner, is permitted to take out notice on respondent Nos. 5 to 8 by registered post acknowledgement due and to file proof of service within two weeks.
Stay Application No. 17678 of 2018:
3. In this Application, the petitioner seeks a direction to stay the investigation in FIR No. 100 of 2018 dated 10.08.2018, registered with Rajpur Police Station, Dehradun, under Sections 386, 388 and 120-B of the Indian Penal Code; direct that the petitioner be released forthwith, by way of interim bail, from illegal detention and custody of the sixth respondent in FIR No. 100 of 2018 dated 10.08.2018 registered with Rajpur Police Station, Dehradun, under Sections 386, 388 and 120-B of the Indian Penal Code; and grant stay of the order passed by the learned Third Additional District / Sessions Judge, Dehradun, on 12.10.2018 in Revision Petition No. 283 of 2 2018, the consequential order passed by the Third Additional Chief Judicial Magistrate, Dehradun, dated 22.10.2018, and the arrest warrant dated 22.10.2018.
4. FIR No. 100 of 2018 dated 10.08.2018 was registered on the complaint of the fifth respondent alleging that he was coerced by the petitioner herein into conducting a sting operation; and the entire sting operation was conducted with the intention to blackmail the fourth respondent. The petitioner's contention, on the other hand, is that, in the absence of any law prohibiting the petitioner (the Editor-in-Chief of a Television Channel called Samachar Plus) from doing so, he cannot be prosecuted for discharging his duty, as a Journalist, to expose corruption conducting such sting operations in furtherance of larger public interest of ensuring a corrupt-free society. It is his case that it is with a view to prevent him from exposing corruption in the Government of Uttarakhand, that the fifth respondent was coerced into filing the present complaint which resulted in the petitioner being detained in judicial custody ever since 28.10.2018.
5. From the complaint made by the fifth respondent, and from the material to which our attention is drawn, it does appear that the allegations are mainly against the seventh respondent (who, the petitioner alleges, is a conduit of the fourth respondent) and the eighth respondent (who is the brother of the fourth respondent). Our attention has not been drawn to any specific material on record which shows the complainant-fifth respondent (who is said to have conducted the sting operation) talking to the fourth respondent as part of the sting operations. We do not consider it necessary therefore, as at present, to issue any notice to the fourth respondent in this writ petition.
6. While the order of the Additional District / Sessions Judge dated 12.10.2018, whereby permission was accorded to the Investigating Officer to carry out searches in the premises of the petitioner's Television Channel and also to arrest the petitioner, has also been subjected to challenge in the writ petition, the said order has already been given effect to, the petitioner has been detained in judicial custody from 28.10.2018 onwards, and he has 3 filed an application for grant of bail before the Additional District / Sessions Judge, Dehradun, which is slated for hearing tomorrow i.e. 16.11.2018. We see no reason, therefore, to grant the said interim relief, as at present, since these issues can be effectively adjudicated only after the respondents file their counter affidavits.
7. Since the petitioner has been in judicial custody ever since 28.10.2018, and he apprehends that the prosecution would seek deferment of hearing of the bail application, when the matter is heard tomorrow i.e. 16.11.2018, we asked the learned Deputy Advocate General as to whether the prosecution intended to seek adjournment. Learned Deputy Advocate General would assure us that the prosecution would argue the bail application when it is taken-up for hearing tomorrow i.e. 16.11.2018, and would not seek any adjournment. Recording the submission of the Deputy Advocate General, we request the learned Additional District / Sessions Judge, Dehradun to hear and decide the bail application, in accordance with law, tomorrow i.e. 16.11.2018.
8. During the course of hearing of this writ petition, a disconcerting incident has been brought to our notice. The petitioner alleges that, after the writ petition was filed before this Court, an application was moved by the Investigating Officer to conduct a narco-analysis / polygraph test on the petitioner, even without his consent. While Mr. K.T.S. Tulsi, learned Senior Counsel appearing on behalf of the petitioner, would draw our attention to the judgment of the Supreme Court in Selvi and others vs. State of Karnataka, reported in (2010) 7 SCC 263, in support of his submission that it is not open to the Investigating Officer to have a narco-analysis / polygraph / brain-mapping test conducted without the consent of the said individual, it is unnecessary for us to examine this contention as at present, since the learned Deputy Advocate General would assure us that the application filed by the Investigating Officer, seeking conduct of such tests, would be withdrawn and no further action would be taken by him to conduct such tests, till the matter is heard by this Court. Recording this submission of the learned Deputy Advocate General that the application filed by the Investigating Officer, for conducting the aforesaid tests, would be withdrawn, 4 and that no action would be taken to conduct such tests on the petitioner till further orders from this Court, we defer hearing of this interlocutory application by a period of four weeks to enable the State of Uttarakhand (respondent Nos. 1 to 3) to file their counter affidavits.
9. Post the Stay Application on 18.12.2018.
10. Let a certified copy of this order be issued today itself.
(Alok Singh, J.) (Ramesh Ranganathan, C. J.)
15.11.2018 15.11.2018
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