Allahabad High Court
Gayyur Islam And 2 Others vs State Of U.P. And 2 Others on 28 July, 2022
Bench: Mahesh Chandra Tripathi, Umesh Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- CRIMINAL MISC. WRIT PETITION No. - 8853 of 2022
Petitioner :- Gayyur Islam And 2 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Irshad Ahmad
Counsel for Respondent :- G.A.,Ashutosh
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Umesh Chandra Sharma,J.
Heard learned counsel for the petitioners, Sri G.P. Singh, learned AGA for the State Respondents and Sri Ashutosh, learned counsel for the respondent no. 3.
Present writ petition has been preferred for quashing the FIR dated 24.05.2022 being Case Crime No.0233 of 2022, under Sections 307, 323, 354(Kha), 376, 504, 506, 511 IPC & Section 5/18 of POCSO Act, 2012, P.S. Nakhasa, Distt. Sambhal and for a direction to respondents not to arrest the petitioners pursuant to aforesaid FIR.
When the matter was taken up on 13.07.2022, the Court has proceeded to pass following order:-
"Heard Shri Irshad Ahmad, learned counsel for the petitioners; Shri G.P. Singh, learned A.G.A. for State respondent nos.1 and 2 and Shri Ashutosh, Advocate for respondent no.3.
The relief sought in this petition is for quashing of the impugned FIR dated 24.5.2022 registered as Case Crime No.0233 of 2022 under Sections 307, 323, 354 (Kha), 376, 504, 506, 511 IPC & 5/18 of Protection of Children from Sexual Offence Act, 1021, Police Station Nakhasa, District Sambhal. Further prayer has been made not to arrest the petitioners in the aforesaid case.
Shri Ashutosh, learned counsel for the informant has raised an objection to the effect that the petitioners have already filed an Anticipatory Bail Application before the Court below and the same is pending consideration. Lastly, it was listed on 12.7.2022 and on the said date, it was directed to be listed on 19.7.2022.
Confronted with this situation, learned counsel for the petitioners states that the marriage of petitioner no.1 and respondent no.3 was solemnized on 24.6.2007 according to Hindu rites and rituals. Thereafter, some matrimonial dispute arose and the respondent no.3 left house of the petitioner no.1. Thereafter, she lodged two different FIR against the petitioners. Against the said FIRs, the petitioners filed Criminal Misc. Writ Petition Nos.20233 of 2013 and 20234 of 2013 before this Court wherein this Court had accorded an interim protection in favour of the petitioners on 11.10.2013. Again the respondent no.3 lodged the FIR against the petitioner no.2 registered as Case Crime No.296 of 2016 in which he was released on bail. The impugned FIR has been lodged against the petitioners on 24.5.2022.
On his request, the case is passed over. Put up this matter again as fresh on 25.7.2022. "
Inspite of the aforesaid order, learned A.G.A. fairly states that he could not obtain instructions in the matter on account of massive fire incident in the Office of learned Advocate General and prays that some further time may be accorded so that appropriate instructions may be obtained in the matter.
Learned counsel for the petitioners in support of his submission placed reliance on the case diary wherein during investigation Sections 307/376/511 I.P.C & Section 5/18 of Protection of Children From Sexual Offences Act have been omitted and Section 7/8 of Protection of Children From Sexual Offences Act has been added. Learned counsel for the petitioners further makes statement at bar that protection under Section 41-A Cr.P.C. has already been accorded to other co-accused.
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 :- 28.7.2022
Aditya
