Allahabad High Court
Hitler Alias Mohit Kumar Maurya ... vs State Of U.P. Thru. Secy. Home ... on 19 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. - 2995 of 2023
Petitioner :- Hitler Alias Mohit Kumar Maurya And Another
Respondent :- State Of U.P. Thru. Secy. Home Deptt. U.P. Govt. Lko. And Others
Counsel for Petitioner :- Mohd. Salman,Mukhtar Ahamad
Counsel for Respondent :- G.A.
Hon'ble Mrs. Sangeeta Chandra,J.
Hon'ble Narendra Kumar Johari,J.
Heard learned counsel for the petitioners and learned A.G.A. for the State- respondents.
This petition has been filed by the petitioners with the following prayers:
i) issue a writ, order or direction in the nature of certiorari to quash the impugned First Information Report dated 12.01.2023, registered as Case Crime No.0043 of 2023, under Sections 323, 324, 341, 504, 506 I.P.C. Police Station Kotwali Sadar, District Kheri.
ii) issue a writ order or direction in the nature of mandamus commanding the opposite party No.3 not to arrest the petitioners in pursuance of the impugned first information report.
It has been submitted by learned counsel for the petitioners that petitioners have tried to lodge an F.I.R. on 11.01.2023 of incident, which occurred in between the petitioners and opposite party No. 4. When F.I.R. was not lodged, an application was written by the petitioner No. 1 to the Superintendent of Police, Lakhimpur Kheri also. No heed was paid, thereafter, the petitioners filed an application on I.G.R.S. portal with regard to the non-lodging of the F.I.R. only, thereafter, the F.I.R. of the incident which occurred on 11.01.2023, was lodged on 17.01.2023 by the police. In the meantime, informant/ opposite party No. 4 had been able to get the FIR lodge on 12.01.2023 itself. No such incident as has been mentioned in the F.I.R. ever took place.
This Court has perused the F.I.R.. All the offences that have been alleged to have been committed by the petitioners carried the punishment of up to seven years, petitioners are entitled to 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 :- 19.4.2023
Reena/-
