Uttarakhand High Court
WPCRL/1014/2024 on 17 September, 2024
Author: Vivek Bharti Sharma
Bench: Vivek Bharti Sharma
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17.09.2024 WPCRL No. 1014 of 2024
Hon'ble Vivek Bharti Sharma, J.
Mr. R.S. Sammal, Mr. D.C.S. Rawat, Mr. Gaurav
Singh and Mr. Pankaj Kulaura, Advocates for the
petitioner.
2. Mr. G.S. Sandhu, Additional Government Advocate
along with Mr. Saurabh Kumar Pande, Brief Holder for
the State.
3. Ms. Uttara Babbar, Senior Counsel assisted by Mr.
Dushyant Mainali and Mr. G.C. Lakhchaura, counsel for
respondent no.3/complainant.
4. Present writ petition is preferred by the petitioner to
quash the F.I.R. No. 0170 of 2024 under Section
376(2)(n), 506 I.P.C. and Section 9(m)/10 of the POCSO
Act, registered at Police Station Lalkuan, District Nainital.
5. Counsel for the petitioner/accused would submit
that the Coordinate Bench of this Court vide order dated
13.09.2024 had granted interim order in favour of the
petitioner/accused, the relevant part of the said order is
extracted hereunder:
"Till the next date of listing, petitioner shall not be arrested
pursuant to impugned FIR provided he extends full
cooperation in the ongoing investigation. Petitioner shall
neither contact nor influence any witness and he shall
report in PS Kotwali, Almora town on each and every day.
Stay application (IA/1/2024) shall be decided on the next
date of listing."
6. Heard on stay application (IA No. 1 of 2024).
7. Counsel for the petitioner/accused would submit
that the petitioner/accused has been falsely implicated in
the instant crime; that the FIR is vexatious and same has
been filed for spoiling the petitioner's reputation; that,
there is no explanation for such a considerable delay in
lodging the F.I.R.
8. He would further submit that in compliance of the
order dated 13.09.2024, the petitioner/accused is regularly
marking his presence before the concerned police station
and has not violated any condition of the order dated
13.09.2024, which would disentitle him for getting interim
protection from this Court; that, petitioner/accused
undertakes not to influence any witness or tamper any
evidence and further undertakes that he will fully
cooperate in the investigation, therefore, the
petitioner/accused is entitled for interim protection.
9. Per contra, State counsel would vehemently oppose
the submission made by counsel for the petitioner/accused
and would submit that the petitioner/accused is not fully
cooperating with the investigation; that, the mobile phone
used by the petitioner/accused during the commission of
the offence has not been recovered yet and the specimen
handwriting and signatures of the petitioner/accused is
also required, therefore, the custodial investigation of the
petitioner/accused is necessary for a proper investigation
of the case; that, if the petitioner/accused is granted
interim protection at this stage then the investigation into
the allegations would be adversely affected and would
lead to miscarriage of justice .
10. State counsel would further submit that he has
received written instructions from the concerned
Investigating Officer and seeks time to file detailed
counter affidavit.
However, prays to place the said written
instructions. The same is taken on record.
11. Senior counsel for the complainant/respondent no.3
would submit that the present petition is filed only to delay
and adversely affect the investigation; that, as per the
contents of the F.I.R. and statements of the victim, the
case against the petitioner/accused is clearly made out.
12. Senior counsel for the respondent no.3/complainant
would further submit that the petitioner is accused of
heinous offence of rape; that, the persons accused of
committing such heinous offences is not entitled for any
protection from the Court as the offences are not private in
nature but have a serious impact on the society; and, that
granting interim protection to such accused person would
not only affect the investigation adversely but will also
frustrate the larger public interest.
In support of her submissions, she would rely upon
the judgment of Hon'ble Apex Court in the case of
'Neeharika Infrastructure Pvt. Ltd. Vs. State of
Maharashtra and others' 2021 SCC OnLine SC 315.
13. Heard learned counsel for the parties and perused
the material available on record.
14. The principal question that arises before the Court is
whether in the facts and circumstances of the case,
petitioner/accused is entitled for an interim protection by
this Court in exercise of its power under Article 226 of the
Constitution of India.
15. The Hon'ble Supreme Court in the case of
Neeharika Infrastructure (supra) while dealing with the
power of the High Courts in granting the interim
protection to the accused persons has held that the
parameters that are required to be followed by the High
Courts while quashing of the F.I.R. shall also apply at the
time of granting the interim protection.
16. The Hon'ble Apex Court has observed that power
conferred to the High Court under Article 226 of the
Constitution of India has to be exercised sparingly and
only in those cases where the denial of such a right would
lead to gross miscarriage of justice.
It has been further observed by the Hon'ble Apex
Court that the order of interim protection should not be
passed routinely, casually and mechanically and when the
investigation of the case is in progress and the facts are
hazy and the entire material is not available before the
Court, then, the High Court should refrain itself from
passing the order of interim protection in favour of the
accused persons.
17. In view of the above, the answer to the aforesaid
question is in negative and this Court is of the considered
view that the petitioner/accused is not entitled for any
interim protection at this stage.
18. Accordingly, the stay application is hereby rejected.
19. List this case on 17.12.2024.
20. In the meantime, the State counsel is directed to file
the detailed counter affidavit.
(Vivek Bharti Sharma, J.)
17.09.2024
Mamta
