Allahabad High Court
Vivek Kumar @ Vivek Kumar Shukla ... vs State Of U.P. And 4 Others on 11 August, 2022
Bench: Mahesh Chandra Tripathi, Umesh Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- CRIMINAL MISC. WRIT PETITION No. - 10610 of 2022
Petitioner :- Vivek Kumar @ Vivek Kumar Shukla And 2 Others
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Abhay Raj Yadav
Counsel for Respondent :- G.A.
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Umesh Chandra Sharma,J.
Heard learned counsel for the petitioners and learned AGA.
Present writ petition has been preferred for quashing the FIR dated 28.7.2022 being Case Crime No.32 of 2022 under Sections 498-A, 323, 504, 506 IPC and Sections 3 & 4 of Dowry Prohibition Act, P.S. Mahila Thana, Distt. Banda and for a direction to respondents not to arrest the petitioners pursuant to aforesaid FIR.
Learned counsel for the petitioners submits that earlier also the informant had lodged an FIR dated 22.7.2020 being Case Crime No.10 of 2020 under Section 498-A, 323, 504, 506 IPC and Section 3, 4 of Dowry Prohibition Act, P.S. Mahila Thana, Distt. Banda implicated the petitioners and other family members. In the said proceeding all the family members were acquitted/ exonerated by the trial court by judgment and order dated 18.3.2021, which has been brought on record as Annexure No.A-2 to the writ petition. It is contended that, thereafter, respondent no.5 (wife) has joined the first petitioner. Now again present FIR has been lodged totally on false allegations implicating all the family members.
Further submission is 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. Learned counsel for the petitioners 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 judgement 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 :- 11.8.2022
SP/
