Avinash Tiwari vs State of Uttarakhand and others

By means of present writ petition, the petitioner prays for the following reliefs, among others:

"(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned FIR dated 23.09.2017 bearing FIR No. 229 of 2017 for the offences punishable under Sections 420, 342, 328 of IPC, PS I.T.I, Kashipur, District Udham Singh Nagar (Annexure-1). (b) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent no.2 not to arrest the petitioner in connection with impugned FIR dated 23.09.2017 bearing FIR No. 229 of 2017 for the offences punishable under Sections 420, 342, 328 of IPC, PS I.T.I, Kashipur, District Udham Singh Nagar (Annexure-1)."

Heard learned counsel for the petitioner, learned counsel for the State, perused the documents brought on record and considered the grounds taken up in the writ petition.

Without commenting upon the merits of the case, this Court proposes to pass the following order, in the interest of justice.

It is provided that the petitioner should be arrested only when the Investigating Officer has reason to believe, on the basis of the information and material collected, that he has 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 petitioner 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.

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, if any, of the petitioner.

Petitioner is directed to contact the Investigating Officer of the case on 02.11.2017, and on such subsequent dates as may be instructed by him (I.O.) for interrogation and investigations.

When the investigation of the case will be conducted, it will either culminate into filing of the charge-sheet or submission of final report. This Court has no occasion to interfere in the investigation in between.

Unless an extraordinary case of gross abuse of power is made out by that in-charge of investigation, the court should be quite loath to interfere at the stage of investigation, a field of activity reserved for Police and Executive. { State of Bihar and another vs. J.A.C. Saldanha and others, 1980 SCC (Crl.) 272}.

Therefore, it will be of no use keeping the present criminal writ petition pending. Criminal Writ Petition is, accordingly, disposed of at the admission stage itself, with the consent of learned counsel for the parties.

The Court does not feel it necessary to issue notice to the private respondent, yet opportunity of hearing shall be granted to him if he approaches the Court on his own, either in person or through counsel, and if he feels aggrieved with this Order, which is purely based upon statutory foundation. [ Vishnu Agarwal vs. State of Uttar Pradesh and another, (2011) 14 SCC 813 and Asit Kumar Kar vs. State of West Bengal, (2009) 2 SCC 703.]