Mukesh Kumar And Another vs State Of U.P. And 2 Others
2022 Latest Caselaw 11276 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 47
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 11184 of 2022
 

 
Petitioner :- Mukesh Kumar And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Rajesh Kumar Pandey
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Gajendra Kumar,J.

Today, Advocates are abstaining from judicial work. No one has put in appearance on behalf of petitioners.

Learned AGA appears for the State-respondents.

Present writ petition has been preferred for quashing the impugned FIR dated 04.07.2022 being Case Crime No.332 of 2022, under Sections 406, 504, 506 of the IPC and 3/4 D.P. Act, Police Station- Debai, District Bulandshahr and for a direction to respondents not to arrest the petitioner pursuant to aforesaid FIR.

It appears from the record in question 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. The petitioners have been wrongly implicated and could not be arrested. Reliance has been placed upon 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 recognized 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 judgement is 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 :- 25.8.2022

A.N. Mishra