Sonu Joshi vs State Of Uttarakhand on 21 July, 2026

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    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
    
    ----------------------------------------------------------------------
    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.
    ----------------------------------------------------------------------
    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 preliminary

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    inquiry may be conducted only to ascertain whether cognizable
    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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