- (1.) AMITAVA Lala, J. The writ petition is made basically for the following reliefs amongst others : (A) Issue a writ, order or direction in the nature of certiorari quashing the impugned First Information Report lodged at Case Crime No. 257 of 2006 under Sections 363, 366, 352, 504 and 506, I. P. C. Police Station Gangoh, District Saharanpur (Annexure No. 1 to the writ petition ). (B) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to arrest the petitioners with reference to Case Crime No. 257 of 2006 under Sections 363, 366, 352, 504 and 506, I. P. C. Police Station Gangoh, District Saharanpur.
(2.) AN F. I. R. has been lodged on 2nd September, 2006 by one Safdar, the respondent No. 4 herein saying that Afzal alias Mohd. Afzal, kidnapped Km. Nausheeda, on 8th August, 2006, who is allegedly about 15 years of age. In the writ petition, the concerned girl Nausheeda is the petitioner No. 1 when the accused Afzal is the petitioner No. 2 alongwith others. The writ petition is supported by the affidavit of Nausheeda herself describing her age is 22 years. The writ petition is supported by various Annexures including Annexure 3 which is very relevant for the purpose of due consideration. Such annexure is a certificate of the concerned Chief Medical Officer (hereinafter called as C. M. O.) Saharanpur dated 22nd September, 2006 on the basis of the order dated 18th September, 2006 of the Additional District Magistrate, Administration, Saharanpur. It is stated therein that the girl was present for examination. The examination was done. According to her own statement the age is 22 years. On the physical appearance the C. M. O. certified that her age is about 20/22 years. A Division Bench consisting of (Hon'ble Mr. Justice R. C. Deepak and Hon'ble Mr. Justice V. D. Chaturvedi) were divided in entertaining the writ petition.
(3.) R. C. Deepak, J. was pleased to pass the following interim order : "in my opinion without expressing anything on the merit of the case, it is fit and proper in the interest of justice and equity both that the investigation into the case Crime No. 257 of 2006 under Sections 363, 366, 352, 504 and 506, IPC at Police Station Gangoh, District Saharanpur shall go on, but the arrest of the petitioners No. 2 to 5 (Afzal @ Mohd. Afzal, Imran, Gulshana @ Gullo and Sabra) shall not be effected by the investigating agency till the date fixed, provided they co-operate with the investigation. The order is passed accordingly. Let a counter-affidavit be filed by the Investigating Officer within three weeks. Notice be issued to respondent No. 4 to file counter-affidavit within the period indicated above. The case shall appear on list on 1st November, 2006. " In the process of delivering judgment R. C. Deepak, J. relied upon the following judgments : AIR 1963 SC 1295, Kharak Singh v. State of U. P. ; AIR 1975 SC 1375, Govind v. State of M. P. ; 1997 JIC 351 (SC) : AIR 1997 SC 568; People Union of Civil Liberties v. Union of India, 2002 (1) JIC 937; Shamsher Aalam alias Sheru v. State of U. P. ; 1994 JIC 760 (SC) : 1994 (31) ACC 431; Joginder Kumar v. State of U. P. On the other hand V. D. Chaturvedi, J. felt as follows : "in view of Hon'ble Supreme Court's verdict given in AIR 1957 SC 529 Paragraphs 5 and 6), Sohan Lal v. Union of India; AIR 1959 SC 942 (Paragraph 17), Mahant Moti Das v. S. P. Sahi and others, AIR 1961 SC 1526 (Paragraph 7), Union of India and others v. Ghaus Mohd. , AIR 1963 SC 516 (Paragraphs 4 and 5), Bokaro and Rangur Ltd. v. State of Bihar and another, AIR 1964 SC 1419 (Paragraph 7), Thansingh Nathmal v. Superintendent of Taxes and others and in AIR 1976 SC 386 (Paragraph 18), D. L. F. Housing Construction Pvt. Ltd. v. Delhi Municipal Corporation and others, the High Court in writ jurisdiction cannot enter into the field of investigating the facts and cannot adjudicate such questions of disputed facts which require the investigation and the evidence. The questions of facts which invite the investigation or enquiry or probe cannot be decided in the writ jurisdiction. ";