Allahabad High Court
Pradeep @ Pradeep Kumar Gupta And ... vs State Of U.P. Thru Prin. Secy. Home ... on 7 January, 2021
Bench: Ved Prakash Vaish, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 11
Case :- MISC. BENCH No. - 24266 of 2020
Petitioner :- Pradeep @ Pradeep Kumar Gupta And Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Home Lucknow & Ors
Counsel for Petitioner :- Devendra Gupta,Prashant Shukla
Counsel for Respondent :- G.A.
Hon'ble Ved Prakash Vaish,J.
Hon'ble Mrs. Saroj Yadav,J.
File has been taken up as per order of Hon'ble The Chief Justice.
Heard Sri Prashant Shukla, learned counsel for the petitioners and learned Addl. G.A. for the State.
The petitioners have filed the present petition with the following prayer:
"a. Issue a writ, order or direction in the nature of CERTIORARI quashing the impugned FIR dated 16/07/2020 lodged as FIR NO.0461 of 2020, under Sections 323, 498-A & 506 of I.P.C. and Section 3 &4 of D.P. Act, Police Station Madiaon, District Lucknow contained as Annexure-1 to this writ petition.
b. Issue a writ, order or direction in the nature of MANDAMUS commanding the respondent no.1 and 2 to grant the petitioners the benefit of Section 41 and 41-A of Criminal Procedure Code in the light of the judgment of Hon'ble Supreme Court in the case of Arnesh Kumar vs. State of Bihar [(2014) 8 SCC 273] "
Learned counsel for the petitioners submits that he is pressing prayer (b) only.
Learned Addl. G.A. for the State states that the offence(s) allegedly committed entail a sentence up to seven years and the investigating officer shall ensure compliance of provisions of Section 41-A of the Cr.P.C as directed by Hon'ble Supreme Court of India in 'Arnesh Kumar Vs. State of Bihar', (2014) 8 SCC 273.
Learned Addl. GA. for the State submits that investigating agency will comply with the provisions of Section 41-A of the Criminal Procedure Code (Cr.P.C).
We have heard learned counsel for the petitioners and learned Addl. G.A. for the State and have gone through materials on record.
In Arnesh Kumar's case (supra) the following (relevant portion) has been held:-
"9. Another provision i.e. Section 41A Cr.PC aimed to avoid unnecessary arrest or threat of arrest looming large on accused requires to be vitalised. Section 41A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant in the context reads as follows:
"41A. Notice of appearance before police officer.-
(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice."
The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.
The petitioner is entitled to the benefit of Section 41-A of Cr.P.C, as per law laid down by the Hon'ble Supreme Court in Arnesh Kumar's case (supra).
In view of the submissions made by learned counsel for the petitioners and learned Addl G.A. for the State, this petition is disposed of. However, the Investigating Agency is directed to comply with the provisions of Section 41-A Cr.P.C. and the law laid down by Apex Court in the case of Arnesh Kumar (supra).
(Saroj Yadav,J.) (Ved Prakash Vaish, J.)
Order Date :- 7.1.2021
Shanu/-
