Abbas Ali vs State of Uttarakhand and others

By means of present writ petition the petitioners seek the following reliefs, among others:

(a) Issue a writ, order or direction in the nature of certiorari quashing the FIR No. 0011 of 2018, under Sections 323,419,376 IPC, PS Patel Nagar, District Dehradun dated 12.01.2018 (annexure-1).

(b) Issue a writ, order or direction in the nature of mandamus directing and commanding the respodnets not to arrest the petitioner in pursuance of FIR No. 0011 of 2018, under Sections 323,419,376 IPC, PS Patel Nagar, District Dehradun dated 12.01.2018 (annexure-1).during pendency of the present writ petition.

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.

An FIR was lodged by the victim with the allegations that the accused-applicant gave a false assurance her for marriage and committed sexual assault with her. Today Neha Yadav (victim) duly identified by her counsel Ms. Razia Beg is present before this Court. She says that the petitioner has married to her and, therefore, she does not want to proceed with the criminal case which she has lodged against the petitioner (now her husband). Abbas Ali is also prsennt in person duly identified by his counsel Mr. S.K.Mandal, Advocate. He affirms that he has married the victim-reporter.

Hon'ble Supreme Court in the in the case of Gian Singh v. State of Punjab and another, (2013) 1 SCC (Cri) 160 has clearly directed that the offence of rape and other heinous offences cannot be permitted to be compounded. Therefore, there is no question of compounding the same.

Victim cannot be permitted to withdraw the case against the petitioner.

That being so, considering the facts of the case and as prayed for by learned counsel for the petitioner that the writ petition may be disposed of in terms of Section 41 Cr.P.C. this court proposes to pass the following order:

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 15.02.2018, 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.

Urgency application also stands disposed of.

Let a copy of this Order be supplied to the learned counsel for the parties today itself on payment of usual charges.