Allahabad High Court
Abhishek Pal And 2 Others vs State Of U.P. And 2 Others on 22 December, 2022
Bench: Mahesh Chandra Tripathi, Mayank Kumar Jain
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- CRIMINAL MISC. WRIT PETITION No. - 10503 of 2022
Petitioner :- Abhishek Pal And 2 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Manoj Kumar Tripathi,Sumit Kumar Srivastava
Counsel for Respondent :- G.A.,Rajendra Kumar Pandey
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Mayank Kumar Jain,J.
Heard learned counsel for the petitioners and the learned A.G.A. for the State.
Present writ petition was taken up on 10.08.2022 and on the said date, following interim order was accorded in favour of the petitioners:
"Heard learned counsel for the petitioners, learned A.G.A. for the State and Sri Rajendra Kumar Pandey for the informant.
This writ petition has been filed with the prayer to quash the First Information Report, registered as Case Crime No.165 of 2022, under sections 498-A, 323, 504, 354, 354Kha, 294, 506 I.P.C. & Section 3/4 Dowry Prohibition Act, Police Station Mahila Thana, District Ghaziabad.
It is stated that petitioners have been falsely implicated in the First Information Report and there is a genuine matrimonial issue in respect of which mediation ought to be tried first before proceeding with criminal investigation as it has the potential of disturbing the marital life for all times to come. Submission is that the matter be referred to Mediation Centre of this Court.
In the facts of the present case we are of the view that an attempt be made to resolve the differences between the parties by way of mediation. It is, therefore, directed that petitioners shall deposit a sum of Rs. 30,000/- within three weeks from today with the Mediation Centre out of which Rs. 20,000/- shall be paid to the respondent no.3 (wife) for appearance before the Mediation Centre. The remaining amount shall go to mediation centre towards the expenses of mediation.
The matter is remitted to the Mediation Centre with the direction that same may be resolved after giving notices to both the parties.
It is directed that Mediation Centre shall make all endeavours to resolve the dispute amicably, expeditiously, preferably within a period of three months.
List thereafter.
Till the next date of listing, no coercive action shall be taken against the petitioners pursuant to the aforesaid First Information Report.
After depositing the amount, aforesaid, notice shall be issued to the parties. In the event of failure of compliance, the petition shall stand dismissed without reference to the Court."
In response thereof, the parties have appeared before the Allahabad High Court Mediation and Conciliation Centre on 28.09.2022 and 12.10.2022, but the mediation between the parties concerned has failed as per the report of the Mediation & Conciliation Centre dated 12.10.2022, therefore this Court has proceeded to decide the matter on merits.
The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 22.07.2022 registered as Case Crime No. 165 of 2022, under sections 498-A, 323, 504, 354, 354-Kha, 294, 506 IPC and section 3/4 of Dowry Prohibition Act, police station Mahila Thana, district Ghaziabad, and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.
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 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 :- 22.12.2022
Sazia
