Allahabad High Court
Prateek Bajpai vs State Of U.P. Thru. Addl. Chief ... on 22 November, 2022
Bench: Rajesh Singh Chauhan, Vivek Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 9
Case :- CRIMINAL MISC. WRIT PETITION No. - 8721 of 2022
Petitioner :- Prateek Bajpai
Respondent :- State Of U.P. Thru. Addl. Chief Secy./Prin. Secy. Home Deptt. Civil Sectt. U.P. Lko. And Others
Counsel for Petitioner :- Saksham Agarwal,Rakesh Kumar Agarwal
Counsel for Respondent :- G.A.,Savitra Vardhan Singh
Hon'ble Rajesh Singh Chauhan,J.
Hon'ble Vivek Kumar Singh,J.
Heard Sri Saksham Agarwal, learned counsel for the petitioner, learned Additional Government Advocate for the State-respondents and Sri Savitra Vardhan Singh, learned counsel for the Lucknow University (opposite party No.4).
In view of the order proposed to be passed, the notice to opposite party No.5 is hereby dispensed with.
This petition seeks issuance of a writ in the nature of certiorari for quashing the impugned First Information Report (in short F.I.R.) dated 04.11.2022 registered as F.I.R./Case Crime No.0240 of 2022, under Sections 147, 352, 323, 504 & 506 IPC, Police Station-Hasanganj, District-Lucknow North (Annexure No.1), so far as it relates to the present petitioner.
Learned counsel for the petitioner has submitted that for the incident in question the F.I.R. of the petitioner was lodged on 12.10.2022 bearing Case Crime No.0228 of 2022, under Sections 147, 323, 308 & 336 I.P.C., Police Station-Hasanganj, District-Lucknow. As a counter blast, the impugned F.I.R. has been lodged on 04.11.2022, however, the date of incident is same i.e. 12.10.2022.
Learned counsel for the petitioner has drawn attention of this Court towards the judgment and order dated February 28, 2019 passed in P.I.L. CIVIL No.19390 of 2018; Lucknow University Vandalism vs. State of U.P.; issuing direction to the Administration and Police Authorities of the State of U.P. as well as the Authorities of the Universities to maintain the educational atmosphere in the Universities but no proper exercise has been carried out.
Sri Agarwal, learned counsel for the petitioner has further submitted that in the F.I.R. of the petitioner, which is annexed as Annexure No.5 to the writ petition, no proper and fair investigation is being carried out. However, pursuant to the impugned F.I.R. the petitioner is being harassed for no cogent reason. The petitioner is co-operating in the investigation and is still willing to co-operate in the investigation, therefore, the police authorities may be directed to conduct the fair and impartial investigation in both the F.I.Rs.
He has further submitted that till date, no notice under Section 41-A Cr.P.C. has been provided to the petitioner despite the fact that the offence is squarely covered with the dictum of Hon'ble Supreme Court rendered in re: Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 and as such the Investigating Officer be directed to take recourse to the procedure provided under Section 41-A of the Code of Criminal Procedure 1973 ( for short "Code"). In support of his contention, he has placed reliance upon the case of Apex Court in re: Arnesh Kumar (supra).
Be that as it may, since the offence/ sections under which the F.I.R. has been lodged against the petitioner is squarely covered with the dictum of Hon'ble Supreme Court rendered in re: Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, therefore, the benefit of the dictum of Arnesh Kumar (supra) may be extended to him.
In the case of Arnesh Kumar (supra), the Apex Court has held that the police officers should not automatically arrest the accused when the offence with which the accused is charged provides for a maximum punishment of imprisonment which may extend to seven years and fine. It was held that in such cases, the power of arrest should be exercised only when the conditions enumerated in Section 41 of the Code are satisfied. The Court then took into account the provisions of Section 41-A of the Code and held as under:
"The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obligates such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied with and shall be subject to the same scrutiny by the Magistrate as aforesaid."
In view of the prayer made by the learned counsel for the petitioner, this writ petition is finally disposed of with a direction to the Investigating Officer to take action only after complying with the provisions of Section 41-A of the Code, in case the offences under investigation entails fine and maximum imprisonment upto seven years.
Before partying with, we legitimately expect that proper, fair and impartial investigation shall be conducted and concluded in the issue in question, strictly in accordance with law.
[Vivek Kumar Singh,J.] [Rajesh Singh Chauhan,J.]
Order Date :- 22.11.2022
Suresh/
