Allahabad High Court
Shirish Kunder vs State Of U.P. Thru. Secy. Deptt. Of ... on 10 April, 2023
Bench: Sangeeta Chandra, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 10
Case :- CRIMINAL MISC. WRIT PETITION No. - 2692 of 2023
Petitioner :- Shirish Kunder
Respondent :- State Of U.P. Thru. Secy. Deptt. Of Home Lko. And 2 Others
Counsel for Petitioner :- Yogeshwar Sharan Srivastava
Counsel for Respondent :- G.A.
Hon'ble Mrs. Sangeeta Chandra,J.
Hon'ble Narendra Kumar Johari,J.
Heard learned counsel for the petitioner, Sri S. N. Tilhari, learned A.G.A. for the State-respondents and perused the record.
This writ petition has been filed by the petitioner with the following prayer:-
i) issue a writ, order or direction in the nature of certiorari quashing the impugned first information report dated 23.03.2017 in Case Crime No.0231 of 2017 under Section 66(A) of the Information Technology (Amendment) Act, 2008 and 505(2) of Indian Penal Code, Police Station Hazratganj, District Lucknow.
ii) issue a writ, order or direction in the nature of certiorari quashing the impugned notice dated 17.03.2023 issued by respondent No.2.
iii) issue a writ order or direction in the nature of mandamus commanding the respondents not to arrest/harass the petitioner in pursuance of the aforesaid first information report.
The learned A.G.A. has handed over a copy of the instructions dated 07.04.2023, sent by In-charge Inspector, Police Station Hazratganj, Police Commissionate, Lucknow, wherein, he has pointed out paragraph-17, which says that Section 66(A) of Information Technology has been adjudicated as ultra vires by the Hon'ble Supreme Court. The investigation is being carried out only under Section 505(2) of I.P.C. and Section 66 of Information Technology Act.
The instructions dated 07.04.2023, are taken on record.
After arguing at some length, learned counsel for the petitioner says that even if the entire contents of the F.I.R. are taken to be proved, the Sections invoked only carried the punishment of less than seven years. He may be given the benefit of the judgment rendered by Hon'ble Supreme Court in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
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 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 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 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 judgement 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 :- 10.4.2023
Reena/-
