Allahabad High Court
Sunil Bajpai @ Sunil Kumar Bajpai ... vs State Of U.P. Thru. Addl. Chief ... on 12 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. - 2785 of 2023
Petitioner :- Sunil Bajpai @ Sunil Kumar Bajpai And Another
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home, Lko. And Others
Counsel for Petitioner :- Hairdaya Narain Tiwari,Ankit Kumar Pandey,Hari Mangal Singh
Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sangeeta Chandra,J.
Hon'ble Narendra Kumar Johari,J.
Heard learned counsel for the petitioners and Sri S. N. Tilahari, learned A.G.A. for the State- respondents.
This petition has been filed by petitioners with the following prayers:
i) to issue a writ, order or direction in the nature of certiorari quashing the illegal and arbitrary F.I.R. dated 17.03.2023 registered as Case Crime No.0074 of 2023, under Section 2 and 3 of Prevention of Damage to Public Property Act, 1984 and Section 379 of I.P.C., Police Station Thangaon, District Sitapur.
It has been submitted by the learned counsel for the petitioners that petitioners had a lease of Enemy property of several plot numbers a total area ad-measuring 15.5020 hectares situated at village Dhamauda, Pargana Kondari South, Tehsil Mehmoodabad, District Sitapur w.e.f. 01.07.2020 till 30.06.2022. The Custodian of Enemy property illegally terminated the lease agreement dated 20.07.2020 vide order dated 01.11.2021. The petitioner approached this Court in Writ (C) No.1783 of 2022; Sunil Kumar Bajpai vs. Union of India and others, wherein, this Court passed an interim order granting status quo on 01.04.2022. Despite such order of status quo being passed, the impugned F.I.R. has been lodged by the respondents with a malafide and ulterior motive only as revenge for approaching this Court in writ petition as aforesaid.
The learned A.G.A. has pointed out that from the papers filed alongwith the paper-book, that the lease was cancelled by the Custodian of Enemy property on 01.11.2021. The State Government took possession of the property on 25.03.2022. The interim order was granted in the writ petition of the petitioners only on 01.04.2022 by which date the State Government had already taken possession of the property, and in fact, the stay order was operating against the petitioners. However, the petitioners harvested the sugarcane crop sown on the property in question and sold it of for around Rs.16,00,000/- (Sixteen Lacs Only), hence the F.I.R. was lodged.
Learned counsel for the petitioners at this stage says that all the Sections invoked against the petitioners carried the punishment of less than seven years and a benefit of judgement rendered by Hon'ble Supeme Court in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 be given to the petitioners.
Learned counsel for the petitioners 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 :- 12.4.2023
Reena/-
