Amit Kumar (In Fir Amit D.S.A. ... vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 10263 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 10
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 2630 of 2023
 
Petitioner :- Amit Kumar (In Fir Amit D.S.A. Punawala Housing Pvt. Ltd.)
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Civil Secrett. Lko. And Others
 
Counsel for Petitioner :- Chandan Srivastava,Yogesh Somvanshi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Hon'ble Narendra Kumar Johari,J.

Heard learned counsel for the petitioner, learned A.G.A. who appears on behalf of the State respondent.

This petition has been filed with the following main prayer :-

"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned First Information Report No.0101/2023, registered under Sections 406, 420, 504 and 506 of IPC on 17.03.2023, with police station Hazratganj, District Lucknow as contained in Annexure No.1 to the writ petition.

(ii) Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case in favour of the petitioner."

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 CrPC. The petitioner has been wrongly implicated and could not be arrested. Learned counsel for the petitioner has placed reliance on the judgment of this Court dated 28.01.2021 in Criminal Misc. Writ Petition No.17732 of 2020 (Vimal Kumar and 3 Others vs. State of U.P. and 3 Others) in which guidelines have been framed following the judgment 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 41 A of the Code and the directions issued in Arnesh Kumar vs. State of Bihar [ (2014) 8 SCC 273]. Any deriliction 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 recognized 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 vs. 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 41 A, 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).

Learned A.G.A., however, has pointed out that he has received instructions from the Investigating Officer in which it has come out that the petitioner was called to the police station for his statement to be recorded by issuing notice under Section 41 A of CrPC. The petitioner promised to report at the police station within two days, however, more than one week has lapsed but the petitioner has not reported at the police station for recording his statement.

Learned counsel for the petitioner has given an undertaking at the Bar that he shall ensure that the petitioner approaches the police station concerned within a week for recording of his statement.

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 judgment are equally applicable to the facts of the instant case.

Accordingly, in view of the undertaking given by the learned counsel for the petitioner the instant petition also stands disposed of in terms of the judgments cited above.

Order Date :- 7.4.2023

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