Allahabad High Court
Ram Kumar Maurya vs State Of U.P. And 3 Others on 19 June, 2014
Bench: Sudhir Agarwal, Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 34 A.F.R.
Case :- CRIMINAL MISC. WRIT PETITION No. - 10332 of 2014
Petitioner :- Ram Kumar Maurya
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Dr. S.B. Singh
Counsel for Respondent :- Govt. Advocate
Hon'ble Sudhir Agarwa l,J.
Hon'ble Mrs. Vijay Lakshmi,J.
1. This writ petition has been filed under Article 226 of Constitution of India with the prayer for issuance of writ, order or direction in the nature of certiorari quashing the F.I.R. dated 2.6.2014 registered as Case Crime No. 159 of 2014, under Section 363 and 366 I.P.C., Police Station Aurai, District Sant Ravidas Nagar (Bhadohi) and also for issuance of a writ, order or direction in the nature of mandamus directing the respondents for not taking any coercive action against the petitioner pursuant to the aforesaid report.
2. After some arguments, learned counsel for the petitioner could not dispute that the allegations contained in the report, if taken to be correct on the fact of it, at this stage do disclose commission of cognizable offence but it is contended that the girl Pooja has already solemnized marriage with Amit Verma at Arya Samaj, Krishna Nagar, Prayag. To verify solemnization of marriage, photo copy of certificate issued by the aforesaid Arya Samaj, Krishna Nagar, Prayag under Arya Marriage Validation Act, 1937 read with Hindu Marriage Act, 1955 has been filed. Thus, it is contended that as a matter of fact, no offence has been committed under Section 363 and 366 I.P.C. and the petitioner, in any case, has no role in the matter. Therefore, the aforesaid report is nothing but a sheer harassment for something which is factually not correct. It is further contended that the petitioner has nothing to do in the matter in as much as he is only Manager in an educational institution namely Learner's Academy School, Khamahriya, Sant Ravidas Nagar where both, Pooja Jaiswal and Amit Verma, were working as teachers and having developed intimacy amongst them, they solemnized marriage without consent of the informant, for this reason alone, the report has been lodged naming the petitioner therein. When it was pointed out to the learned counsel for petitioner that, whatever he has argued, if is correct, it is always open to the girl and Amit Verma to appear before the Magistrate concerned and get their statements recorded so that appropriate order may be passed by the court, the learned counsel has said that he has no information regarding whereabouts of two persons namely Pooja Jaiswal and Amit Verma, hence cannot ensure their presence for recording their statements before Magistrate.
3. At this stage we cannot examine correctness of the factum of alleged marriage particularly when these facts are in the realm of evidence. It is open to the petitioner to bring all these facts before Investigating Officer or he himself can appear before Magistrate to get his statement recorded therein whereupon the Magistrate shall pass appropriate order accordingly. So far as the report is concerned, a bare reading of it discloses commission of a cognizable offence and rest are the things subject to investigation and to be looked into by court below whenever this matter is brought before it, in accordance with law.
4. Learned counsel for the petitioner then contended that this Court should consider and pass an order protecting petitioner from arrest by police in view of the amendment made in Section 41(2) of the Criminal Procedure Code by Act No. 5 of 2009 which has come into force on 1.11.2010.
5. We have gone through the aforesaid provision very carefully and find no application thereof to the case in hand. Section 41(2) Cr.P.C. as it was before amendment reads as under :
"Section 41(2) : Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110."
6. After amendment sub-section 2 has been substituted. The substituted provision reads as under :
"41(2) - Subject to the provisions of Section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned shall be arrested except under a warrant or order of a Magistrate."
7. In fact amendment has also been made by substitution of Clauses (a) and (b) of Section 41(1) by Act No. 5 of 2009 but it is not necessary to refer the same in detail at this stage. Suffice it to mention that Section 41 lays down guidance to a police officer when he may arrest a person without warrant. Sub-section 2 is applicable to a situation when the offence is non-cognizable. It has no application in the case in hand.
8. Even otherwise, at this stage, this Court is not examining legality or otherwise of arrest made by police, since neither any one has been arrested nor this writ petition as such has been filed with a complaint that police or investigating officer has committed violation of any provision pertaining to arrest of any person or the petitioner himself. The main relief in the writ petition is for quashing of first information report which, admittedly having disclosed commission of cognizable offence is not liable to be interfered with at this stage.
9. So far as police is concerned, suffice it to mention that arrest is a mode and manner for aid and assistance of investigating agency after a report has been received regarding an offence, whether cognizable or non cognizable. In every case, the arrest is not must. It is the statutory discretion of investigating officer which has to be exercised fairly and objectively. Use of power of arrest is not an arbitrary statutory discretion of investigating officer or the police but must be founded on valid considerations. Some guidelines in this regard have been established by Apex Court in Joginder Kumar Vs. State of U.P. 1994(4) SCC 260, D.K. Basu Versus State of West Bengal; 1997 (1) SCC 416, K.K. Jerath Vs. Union Territory, Chandigarh and others, JT 1998(2) SC 658 and Lal Kamlendra Pratap Singh Vs. State of U.P.; 2009(3) ADJ 322 etc. Any arbitrary and indiscreet act of arrest, without any proper reason, would be at the personal risk of the officer concerned, for which, he may have to account for. The act of arrest during investigation must precede with the endeavour of officer concerned for making proper investigation and not just to penalise an accused or any other person.
10. If on account of caprices of the officer concerned, any such matter is brought to this Court, showing an arbitrary exercise of power of arrest on the part of officer concerned, such matter may be dealt with by this Court with iron hands but mere possibility or apprehension of arrest would not justify a blanket order from this Court, restraining police from exercising its statutory discretionary power which has been conferred on it by the statute in aid and assistance for investigation etc. Reliance has also been placed at the bar on a Constitution Bench decision in Lalita Kumari Vs. Government of Uttar Pradesh and others; (2014) 2 SCC 1. To our view, this decision lends no support to the petitioner in the case in hand for the question raised herein.
11. No interference is called for.
12. The writ petition is dismissed.
Order Date :- 19.6.2014
S.B.
