Palak Nidhi Nayak vs State Of U P And 2 Others
2022 Latest Caselaw 22078 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 47
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 19380 of 2022
 

 
Petitioner :- Palak Nidhi Nayak
 
Respondent :- State Of U P And 2 Others
 
Counsel for Petitioner :- Ruchita Singh
 
Counsel for Respondent :- G.A.,Shailesh Kumar Yadav
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Mayank Kumar Jain,J.

The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 03.12.2022 registered as Case Crime No.0638 of 2022, under Sections 354-D, 504, 506 I.P.C. and 7/8 of the Protection of Children from Sexual Offences (POCSO) Act 2012, Police Station-Orai, District-Jalaun, and for a direction to the respondents not to arrest the petitioner in pursuance of impugned First Information Report.

Heard learned counsel for the petitioner and Shri S.N. Mishra, learned A.G.A.

On 15.12.2022, at the request of informant's counsel the matter was adjourned. However counsel for the informant was not present when the matter is taken up on 19.12.2022.

Learned counsel for the petitioner submits that he has tried to serve notice to the informant's counsel but he has refused to acknowledge the same. Even today when the matter is taken up he is not present and thus he is avoiding the proceeding. The 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 criminal history of the petitioner is explained in paragraph 15 of the writ petition.

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 judgements 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 :- 20.12.2022

A. Pandey