Uttarakhand High Court
Anil Kala And Others vs State Of Uttarakhand And Others on 30 November, 2016
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Writ Petition No. 1593 of 2016
Anil Kala and two others ..............Petitioners
versus
State of Uttarakhand and others .......... Respondents
Mr. Vikas Bahuguna, Advocate, present for the writ petitioners.
Mr. A. S. Gill, learned Deputy Advocate General, assisted by Mr. Milind Raj,
Mr. Rakesh Kunwar and Mr. K.S.Chaduhary, Brief Holders, present for the
State/respondents no.1 & 2.
Mr. Sanjeev Singh, Advocate, present for the respondent no.3.
U.C. Dhyani, J. (Oral)
By means of present writ petition, the petitioners pray for the following reliefs, among others:
"(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned FIR dated 04.10.2016 in case crime no. 54 of 2016 under Sections 420, 467, 468, 471, 504 and 506 of IPC, PS Baggawala, District Haridwar (Annexure No. 1) lodged by respondent no.3.
(b) Issue a writ, rule, order or direction in the nature of mandamus commanding the respondent no. 1 & 2 not to harass the petitioners and arrest the petitioners in view of the impugned FIR till the collection of any credible evidence against the petitioners."
2. Heard learned counsel for the petitioners, learned counsel for the State, perused the documents brought on record and considered the grounds taken up in the writ petition.
3. An FIR was registered at the behest of respondent no.3 inter alia on the grounds that respondent no. 3 alongwith two 2 others purchased certain piece of land from Mr. Rachit Uniyal S/o Sh. D.N.Uniyal who was the power of attorney holder of Sh. Sunil Kumar Agarwal s/o Mr. Vishwanath Agarwal, Smt. Sarika Agarwal w/o Ramesh Kumar Agarwal, Mr. Vimal Kumar Agarwal s/o Mr. Sayaganarayan Agarwal dated 27.03.2003. As per the FIR three sale deeds were executed in her favour and two others on 29.03.2004. It is also alleged in the FIR that petitioner no.1created a fake power of attorney dated 26.03.2004 in his favour which was allegedly executed by Mr. Vishwnath Agarwal, Ramesh Kumar Agarwal, Ashok Kumar, Vimal Agawal, Satyanarayan Agarwal, Rajesh Kumar Agarwal, Sunil Agarwal, Kanti Devi, Sarika Agarwal, all residents of 419 B Kalwadevi Road, Joshiwadi, Mumbai, presently residing at Ramghat Shekawati, Tehsil Fatehpur, District Sikar, Rajasthan. It is also alleged in the FIR that petitioner no.1 further sold part of land through various sale deeds to petitioners no. 2 & 3. The name of the petitioner no. 2 was mutated in revenue records after several years of litigation. Respondent no.3 along with other persons filed a recall application against the mutation order in favour of petitioner no. 2 and 3 with delay condonation application before consolidation officer, III, Roorkee, wherein petitioners no. 2 and 3 filed objection against the delay Condonation application and thereafter, respondent no. 3 filed her rejoinder. Petitioner no.1 and respondent no.3 have filed two separate complaints before Special Investigation Team, which has been specifically formed from disputes relating to land. Learned counsel for the petitioners submitted that both the complaints of petitioner no.1 and respondent no.3 were being investigated together wherein a notice was also issued to petitioner no.1 and statements of all the concerned persons were being recorded together.
3However, respondent no.3 in spite of having the knowledge that the S.I.T. is investigating the matter in dispute without disclosing the same is seeking criminal law into motion.
4. Learned counsel for the respondent no.3 vehemently opposed the writ petition and submitted that the mutation in favour of petitioners no.2 & 3 has been cancelled on 26.11.2016 by the Consolidation Officer.
5. Learned counsel for the petitioners submitted that no offence under Section 467 of IPC is made out against the petitioners.
6. Although, one of the offences alleged against the petitioners entails punishment for more than 7 years, but learned counsel for the petitioners contends that no such offence is made out against the petitioners and if the commission of that offence is ignored in respect of the petitioners, other offences are covered by the decision of Hon'ble Apex Court in Arnesh Kumar vs. State of Bihar and another, reported in (2014) 8 Supreme Court Cases 273.
7. It is provided that the petitioners should be arrested only when the Investigating Officer has reason to believe, on the basis of the information and material collected, that they have committed an offence. Before making 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 of Cr.P.C. It will not be based upon the ipse dixit of the Police Officer. In other words, the petitioners shall be arrested only when the conditions stipulated in Sub-Clauses (a) to (e) of Clause (1) of Section 41 of Cr.P.C. are satisfied.
48. Needless to say that the Investigating Officer of the case shall abide by the aforesaid directions of Hon'ble Apex Court, before affecting the arrest of the petitioners.
9. Petitioners are directed to contact the Investigating Officer of the case on 07.12.2016, and on such subsequent dates as may be instructed by him (I.O.) for interrogation and investigation.
10. It will be of no use keeping the present criminal writ petition pending for disposal, inasmuch as, the investigation is going on and ultimately, the investigation will come to its logical conclusion only under Section 173 of the Criminal Procedure Code either by a final report or by a charge sheet. The same is accordingly being disposed of at the admission stage itself with the consent of learned counsel for the parties.
(U.C. Dhyani, J.) 30.11.2016 Kaushal 5