Uttarakhand High Court
Pankaj Anand & Anr vs Vinod Singh Gusain & Anr on 9 November, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Contempt Petition No. 291 of 2016
Pankaj Anand & Anr. ......Petitioner
Versus
Vinod Singh Gusain & Anr. ......Respondents
Present:
Mr. Parikshit Saini, the learned counsel for the petitioner.
Mr. B.M. Pingal, the learned counsel for respondent no. 2
Date of hearing and order: 09.11.2022
Sri Sanjaya Kumar Mishra, J.
Heard.
2. By filing this contempt petition, the petitioners
being an accused in case crime no. 133 of 2016,
registered under Sections 403, 417, 420, 120B, 506,
467, 468 and 471 of the Indian Penal Code, 1860
(hereinafter referred to as the Penal Code for brevity)
have prayed for issuance of notice on contempt and
punishment on contempt against the I.O. of the case.
3. Facts of the case, at present, are not disputed. On
06.07.2016, an FIR was lodged by the complainant on
the allegation that she has been duped by certain
persons and the petitioner persuaded her for execution
of sale deed. While the investigating officer took up the
investigation of the case, he come to the conclusion
that the offences under Sections 467, 468 and 471 of
the Penal Code are also made out against the accused
persons named therein, therefore, he made entry on
25.07.2016 in police general diary and added offence
under Sections 467, 468 and 471 of the Penal Code to
the scope of the investigation in addition to the offence
under Section 420 of the Penal Code. Thereafter on
27.07.2016, the Coordinate Bench of this Court in
WPCRL No. 916 of 2016 passed the following order:-
"In view of the judgment rendered by Hon'ble
Apex Court in Arnesh Kumar vs. State of Bihar and another,
reported in (2014) 8 Supreme Court Cases 273, the
petitioners should be arrested only when the Investigating
Officer has reason to believe, on the basis of 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-Clause (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-Clause (a) to (e) of Clause (1) of Section
41 of Cr.P.C. are satisfied.
Needles 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.
Petitioners are directed to contact the Investigating
Officer of the case on 03.08.2016 and on such subsequent
dates as may be instructed by him (I.O.) for interrogation
and investigation.
The Criminal Writ Petition is summarily disposed of
with the direction as above.
In the given acts and circumstances of the present
writ petition, this court does not feet it necessary to issue
notice to the private respondent. Still, liberty is granted to
her to move for recall of this order if she feels aggrieved
with the same."
4. Thus, it is clear that by the time this Court passed
the order it was under the impression that only offence
under Section 420 of the Penal Code registered against
the accused by the I.O., and, therefore, the I.O. has to
follow the mandate of Section 41, 41A of the Code and
also to follow the ratio laid down by the Hon'ble Apex
Court in the case of Arnesh Kumar vs. State of Bihar
and another, (2014) 8 SCC 273. However, after passing
of the order the petitioner appeared before the I.O. on
03.08.2016. On that day he was not arrested but it is
the case of the petitioner is that on 16.08.2016 he was
arrested by the I.O. in violation of the order passed by
this Court.
5. However, the learned counsel for the contemnor/
respondent would submit that on 03.08.2016, the
petitioner appeared before the I.O. After his
examination the petitioner was directed to appear
before him on 04.08.2016 but he did not appear. The
I.O. visited on 9/10/14 and 16.08.2016 but the
petitioner was not present at his house, therefore, on
16.08.2016 the contemnor-respondent, filed an
application before the jurisdictional Magistrate, in seisin
of the matter to pass appropriate order. Thereafter, the
Magistrate endorsed on the application to proceed
according to law. However, it is further borne out from
the record that the Magistrate issued warrant and
signed the same which appears at page 167 of the
brief.
6. In that view of the matter this Court is of the
opinion that the investigating officer did not commit
any wilful deliberate disobedience of the order passed
by this Court. In fact, in this case, he was so directed
by the Magistrate having jurisdiction of the matter and
in seisin of the matter.
7. In that view of the matter there is no contempt in
this case. The contempt proceedings, is, therefore,
dropped.
(Sanjaya Kumar Mishra, J.)
(Grant certified copy as per rules)
PV
