Allahabad High Court
Mohd Yunush And 2 Others vs State Of U.P. And 3 Others on 22 August, 2022
Bench: Mahesh Chandra Tripathi, Gajendra Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- CRIMINAL MISC. WRIT PETITION No. - 8649 of 2022
Petitioner :- Mohd Yunush And 2 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Firdos Ahmad,Mahesh Kumar
Counsel for Respondent :- G.A.
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Gajendra Kumar,J.
Heard learned counsel for the petitioners and Shri G.P. Singh, learned A.G.A. for the State respondents.
On 21.7.2022 the matter was taken up and on the said date, the Court had proceeded to pass following order:-
"By order dated 14.07.2022, this Court has asked learned A.G.A. to obtain instructions in the matter with following observation:-
"Heard learned counsel for the petitioners and learned A.G.A. for the State-respondents.
The present petition has been filed for quashing Non Cognizable Report No. 203 of 2019, dated 26.12.2019,under Section 323, 504, and 427 I.P.C., Police Station- Ahraula, District- Azamgarh.
Learned counsel for the petitioners states that the present Non Cognizable Report is liable to be quashed on the ground that till date no application under Section 155(2) Cr.P.C. has been filed before the court concerned for taking permission and that the limitation for taking cognizance has otherwise expired in terms of Section 468 Cr.P.C.
Before proceeding further in the matter, let the learned A.G.A. obtain instructions in the matter.
Put up this matter again as fresh on 18.7.2022."
Shri G.P. Singh, learned A.G.A. informed to the Court that there was an incident of massive fire in the early morning hours on 17.07.2022 in the office of Advocate General (Dr. B.R. Ambedkar building). On account of said incident, most of the paper books/records of the State were destroyed. Consequently, Hon'ble the Chief Justice vide order dated 17.07.2022 requested Hon'ble Courts for passing 'no adverse orders' against the State on account of non-availability of files and the counsel for the petitioner is to be requested to provide additional copy of the paper book, hence, he prays for reasonable time so that appropriate instructions may be obtained in the matter.
Put up as fresh on 01.08.2022."
Thereafter, the matter was taken up on 10.8.2022 and the Court had passed following order:-
"Learned counsel for the petitioners placed reliance on the averments contained in paragraph no. 10 of the petition and states that non-cognizable report was lodged on 26.12.2019 and till date, sufficient time have passed but no permission under Section 155 (2) Cr.P.C. has been taken and as such, the N.C.R. is liable to be quashed. In support of his submission, learned counsel for the petitioners has also placed reliance on the order dated 22.03.2022 passed in Criminal Misc. Writ Petition No. 1404 of 2022 (Furkan Ahmad and Another Vs. State of U.P. and Others).
Learned A.G.A. on the other hand states that period of limitation would expire in the matter on 26th December, 2022.
On the request of learned A.G.A., put up this matter again as fresh on 22nd August, 2022."
In response thereof, Shri G.P. Singh, learned A.G.A. informs to the Court that the permission is already accorded by the concerned Magistrate on 02.8.2022 and the same was well within the time.
Learned counsel for the petitioners submits that all alleged offences are punishable with imprisonment of seven years, therefore the police authorities are bound to follow the procedure laid down under Section 41-A Cr.P.C. He has placed reliance on the judgement of this Court dated 28.01.2021 in Criminal Misc. Writ Petition No.17732 of 2020 (Vimal Kumar and 3 others vs. State of UP and 3 others) in which guidelines have been framed following the judgement of the Apex Court in different cases, relating to offences providing punishment of seven years or less.
The investigating agencies and their officers are duty bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action. The principle that bail is the rule and jail is the exception has been well recognised through the repetitive pronouncements of the Apex Court, which is on the touchstone of Article 21 of the Constitution of India (Ref. Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1. This provision mandates the police officer to record his reasons in writing while making the arrest. Thus, a police officer is duty-bound to record the reasons for arrest in writing. The consequence of non-compliance with Section 41 shall certainly inure to the benefit of the person suspected of the offence. On the scope and objective of Section 41 and 41A, it is obvious that they are facets of Article 21 of the Constitution. The same has been elaborately dealt with in paragraphs 7.1 to 12 of the judgment in Arnesh Kumar's case (supra).
We have gone through the impugned first information report and we are of the opinion that the guidelines framed by this Court in the above noted judgment are equally applicable to the facts of the instant case.
Accordingly, the instant petition also stands disposed of in view of the judgments cited above.
Order Date :- 22.8.2022
RKP
