Allahabad High Court
Vishal Dubey And Another vs State Of U.P. Thru. Prin. Secy. ... 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. - 2281 of 2023
Petitioner :- Vishal Dubey And Another
Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And Others
Counsel for Petitioner :- Sunil Dixit
Counsel for Respondent :- G.A.
Hon'ble Mrs. Sangeeta Chandra,J.
Hon'ble Narendra Kumar Johari,J.
Heard learned counsel for the petitioners, learned A.G.A. and Sri Manoj Kumar Mishra and Utkarsh Mishra, Advocates, who have filed power on behalf of the respondent no.4, which is taken on record.
In pursuance of the order dated 28.03.2023, respondent no.4 is present in person. The respondent no.4 has stated that she does not wish to settle the dispute out of the Court through mediation.
Learned counsel for the respondent no. 4 has stated that the incident took place on 13.01.2023. The respondent no.4 tried to lodge the F.I.R. on 16.01.2023. On the very same day, when her F.I.R. was not lodged, she filed an application to the Senior Superintendent of Police concerned on 16.01.2023 through Registered Post. When no heed was paid, she was forced to approach the Magistrate concerned by way of filing an Application under Section 156(3) of the Cr.P.C. It is only after the Magistrate ordered the Police to register the F.I.R. on 16.02.2023, that the F.I.R. has been lodged by the Police. It has been argued by the learned counsel for the respondent that after the cognizance was taken in the matter by the Judicial Magistrate, the application for cancellation of gift deed was filed on 31.01.2023.
Learned counsel of the petitioners says that the Application under Section 156(3) of the Cr.P.C. was taken up by the Court concerned only on 16.02.2023. The Suit for cancellation of sale deed was filed on 31.01.2023 i.e. much before such order dated 16.02.2023.
Learned counsel for the respondents says that petitioners are so powerful that they manage the Police Station concerned and no F.I.R. could be lodged on 13.01.2023. Even thereafter, the application by way of Registered Post was made to the S.S.P. on 16.01.2023 and after such application was made to the S.S.P., the Suit for cancellation of Gift Deed was filed on 31.01.2023.
Learned counsel for the petitioners says that all the sections invoked against the petitioners carry less then seven years of punishment, 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 U.P. 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 (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
Rahul
