Uttarakhand High Court
Sonu Joshi vs State Of Uttarakhand on 21 July, 2026
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
UKHC010160892025
HIGH COURT OF UTTARAKHAND AT NAINITAL
First Bail Application No. 1927 of 2025
21 July, 2026
Sonu Joshi
--Applicant
Versus
State Of Uttarakhand
--Respondent
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Presence:-
Mr. Piyush Sammal, learned counsel for the applicant.
Mr. Amit Bhatt, learned Addl.A.G./G.A. with Mr. Tumul Nainwal
and Mr. Kuldeep S. Rawal, learned A.G.A. for the State.
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Hon'ble Mr. Justice Rakesh Thapliyal, J.
1. The instant bail application was heard on several dates at
length and since learned counsel for the applicant pointed out
about the faulty investigation the I.O. was directed to remain
present in court along with the case diary by order dated
17.06.2026 and on 30.06.2026 taking serious note that in large
number of cases faulty investigation are being conducted and
no regular training is being given to the officials, who are given
the task of investigation, the Director General of Police was also
directed to join the proceeding through V.C. in order to assist
the court and on 01.07.2026 the A.D.G.P. joined the proceeding
through V.C. and apprise that some steps are being taken to
impart training to the I.O.s so that they may carry on with the
investigation strictly as per the mandate of law and also apprise
that certain SOPs were also issued by formulating guidelines
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for fair investigation and regular steps are being taken in this
regard.
2. Mr. Amit Bhatt, learned G.A., today placed before this
court the SOPs issued from the Police Headquarter time to time
with regard to the guidelines for the Investigating Officers for
conducting the fair investigation.
3. I have gone through with all the SOPs but it reveals that
while issuing SOPs time to time the guidelines formulated by
the Hon’ble Apex Court in catena of judgments has not been
looked into. In Joginder Kumar’s case (1994) 4 SCC 260 the
Hon’ble Apex Court clearly observed that arrest generally
should be avoided except in heinous crimes but what this court
has observed in many cases that the Investigating Officer
instead of focusing on investigation are focusing on arrest and
then in hurried manner filing charge-sheet within the stipulated
period as prescribed under the law so that the person who was
arrested may not get default bail and the result would be that
on an incomplete investigation the charge-sheet are being filed,
which is completely against the mandate of law as well as
against the guidelines formulated by the Hon’ble Apex Court
time to time.
4. In Lalita Kumari’s case (2014) 2 SCC 1 certain category of
cases has also been categorized in which before registration of
FIR there should be a preliminary enquiry in order to ascertain
the genuineness of the allegations. It appears from the latest
SOPs as placed before this court the guidelines of the Hon’ble
Apex Court time to time in the case of Joginder Kumar (supra)
as well as in the case of Lalita Kumari (supra) and various other
judgments has not been looked into.
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5. Therefore, a fresh SOP has to be prepared in the light of
the Hon’ble Apex Court decision and this court hope and trust
that in future every investigation should be conducted in a fair
and transparent manner and in future for every faulty
investigation the concerned S.S.P. shall be responsible.
Relevant extract of the decision of the Hon’ble Apex Court
in the case of Joginder Kumar and Lalita Kumari are being
extracted herein as under for perusal to all the S.S.P.s of the
State so that they monitor the investigation as well as give
necessary suggestions and instructions to the Investigating
Officers:
“Joginder Kumar Case
12. The National Police Commission in its Third Report referring to
the quality of arrests by the police in India mentioned power of
arrest as one of the chief sources of corruption in the police. The
report suggested that, by and large, nearly 60% of the arrests were
either unnecessary or unjustified and that such unjustified police
action accounted for 43.2% of the expenditure of the jails. The said
Commission in its Third Report at p. 31 observed thus:
“It is obvious that a major portion of the arrests were
connected with very minor prosecutions and cannot, therefore, be
regarded as quite necessary from the point of view of crime
prevention. Continued detention in ‘ail of the persons so arrested
has also meant avoidable expenditure on their maintenance. In the
above period it was estimated that 43.2 per cent of the expenditure in
the connected jails was over such prisoners only who in the
ultimate analysis need not have been arrested at all.”
As on today, arrest with or without warrant depending upon the
circumstances of a particular case is governed by the Code of
Criminal Procedure.
13. Whenever a public servant is arrested that matter should be
intimated to the superior officers, if possible, before the arrest and
in any case, immediately after the arrest. In cases of members of
Armed Forces, Army, Navy or Air Force, intimation should be
sent to the Officer commanding the unit to which the member
belongs. It should be done immediately after the arrest is
effected.
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20. In India, Third Report of the National Police Commission at p.
32 also suggested:
“An arrest during the investigation of a cognizable case may be
considered justified in one or other of the following
circumstances:
(i) The case involves a grave offence like murder, dacoity,
robbery, rape etc., and it is necessary to arrest the accused and
bring his movements under restraint to infuse confidence among the
terrorstricken victims.
(ii) The accused is likely to abscond and evade the processes of
law.
(iii) The accused is given to violent behaviour and is likely to
commit further offences unless his movements are brought under
restraint.
(iv) The accused is a habitual offender and unless kept in
custody he is likely to commit similar offences again.
It would be desirable to insist through departmental instructions
that a police officer making an arrest should also record in the
case diary the reasons for making the arrest, thereby clarifying his
conformity to the specified guidelines……”
The above guidelines are merely the incidents of personal liberty
guaranteed under the Constitution of India. No arrest can be made
because it is lawful for the police officer to do so. The existence of the
power to arrest is one thing. The justification for the exercise of it is
quite another. The police officer must be able to justify the arrest
apart from his power to do so. Arrest and detention in police lock-up
of a person can cause incalculable harm to the reputation and
self-esteem of a person. No arrest can be made in a routine manner
on a mere allegation of commission of an offence made against a
person. It would be prudent for a police officer in the interest of
protection of the constitutional rights of a citizen and perhaps in his
own interest that no arrest should be made without a reasonable
satisfaction reached after some investigation as to the genuineness
and bona fides of a complaint and a reasonable belief both as to the
person’s complicity and even so as to the need to effect arrest.
Denying a person of his liberty is a serious matter. The
recommendations of the Police Commission merely reflect the
constitutional concomitants of the fundamental right to personal
liberty and freedom. A person is not liable to arrest merely on
the suspicion of complicity in an offence. There must be some
reasonable justification in the opinion of the officer effecting the
arrest that such arrest is necessary and justified. Except in heinous
offences, an arrest must be avoided if a police officer issues
notice to person to attend the Station House and not to
leave the Station without permission would do.
21. Then, there is the right to have someone informed. That right of
the arrested person, upon request, to have someone informed and to
consult privately with a lawyer was recognised by Section 56(1) of
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the Police and Criminal Evidence Act, 1984 in England (Civil
Actions Against the Police Richard Clayton and Hugh
Tomlinson; p. 313). That section provides:
“[W]here a person has been arrested and is being held in
custody in a police station or other premises, he shall be
entitled, if he so requests, to have one friend or relative or other
person who is known to him or who is likely to take an interest in
his welfare told, as soon as is practicable except to the extent that
delay is permitted by this section, that he has been arrested and is
being detained there.”
These rights are inherent in Articles 21 and 22(1) of the
Constitution and require to be recognised and scrupulously
protected. For effective enforcement of these fundamental rights, we
issue the following requirements:
1. An arrested person being held in custody is entitled, if he so
requests to have one friend, relative or other person who is known
to him or likely to take an interest in his welfare told as far as is
practicable that he has been arrested and where he is being
detained.
2. The police officer shall inform the arrested person when he
is brought to the police station of this right.
3. An entry shall be required to be made in the diary as to who
was informed of the arrest. These protections from power must be
held to flow from Articles 21 and 22(1) and enforced strictly.
It shall be the duty of the Magistrate, before whom the arrested
person is produced, to satisfy himself that these requirements
have been complied with.
22. The above requirements shall be followed in all cases of arrest till
legal provisions are made in this behalf. These requirements shall be
in addition to the rights of the arrested persons found in the various
police manuals.
23. These requirements are not exhaustive. The Directors
General of Police of all the States in India shall issue
necessary instructions requiring due observance of these
requirements. In addition, departmental instruction shall
also be issued that a police officer making an arrest should
also record in the case diary, the reasons for making the
arrest.
Lalita Kumari Case (2014) 2 SCC 1-120. In view of the
aforesaid discussion, we hold:
120.1. Registration of FIR is mandatory under Section 154 of the
Code, if the information discloses commission of a cognizable offence
and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable
offence but indicates the necessity for an inquiry, a preliminary5
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offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence,
the FIR must be registered. In cases where preliminary inquiry ends
in closing the complaint, a copy of the entry of such closure must be
supplied to the first informant forthwith and not later than one week.
It must disclose reasons in brief for closing the complaint and not
proceeding further.
120.4. The police officer cannot avoid his duty of registering offence
if cognizable offence is disclosed. Action must be taken against
erring officers who do not register the FIR if information received by
him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity
or otherwise of the information received but only to ascertain
whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to
be conducted will depend on the facts and circumstances of each case.
The category of cases in which preliminary inquiry may be made are
as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months delay in
reporting the matter without satisfactorily explaining the
reasons for delay.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused and
the complainant, a preliminary inquiry should be made time bound
and in any case it should not exceed 7 days. The fact of such delay
and the causes of it must be reflected in the General Diary entry.
120.8. Since the General Diary/Station Diary/Daily Diary is the
record of all information received in a police station, we direct that
all information relating to cognizable offences, whether resulting in
registration of FIR or leading to an inquiry, must be mandatorily
and meticulously reflected in the said Diary and the decision to
conduct a preliminary inquiry must also be reflected, as mentioned
above.”
6. So far as the present case is concerned today, the
Investigating Officer is also present. Learned counsel for the
applicant submits that the charge-sheet has been filed for the
penal provisions under Sections 5/6 of the POCSO Act, but the
medico legal report does not reveal that there was any sign of
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sexual assault which constitutes an offence under Section 5 of
the POCSO Act. He submits that the first OPD slip is of
11.07.2025, but the Doctor who prepared this OPD slip was not
made as a prosecution witness. In this OPD slip, there was no
redness and this OPD slip was prepared at 2:35 PM and at 3:40
PM, there is another OPD slip of different hospital, which was
prepared by ‘Dr. Chandra Rawat’, wherein, the redness has
been shown and this Doctor is made a prosecution witness. As
per medico legal report the victim was examined after 20 days
of the incident i.e. on 01.08.2025, and there is no redness in the
area as reflected from the second OPD slip which was prepared
at 3:40 PM on 11.07.2025.
7. Learned counsel for the applicant submits that on close
scrutiny of these reports i.e. the first two are the OPD slips and
third is medico legal report, which reveals that there is no sign
of sexual assault, which constitute an offence punishable under
Sections 5/6 of the POCSO Act, and at the most it may
constitute an offence under Section 9 (m) since the victim was
below 12 years.
8. Now the question is on what material the chargesheet is
filed for penal provision of section 5/6 of the POCSO Act. It
reveals that in this particular case certain vital issues has been
left out by the I.O. while conducting the investigation and why
it was happened particularly when a great task has been given
to the I.O. for conducting investigation. The trial is always
depends on the evidence collected by the I.O. during
investigation, therefore, it is a prime duty of the I.O. to be very
cautious while conducting the investigation. The observation
with regard to the faulty investigation in the present case
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though is completely a tentative one but since learned A.G.A.
sought time to address on the issue.
9. Put up this matter on 23.07.2026.
(Rakesh Thapliyal, J.)
PR
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