Allahabad High Court
Ram Shiromani Pandey vs State Of U.P. Thru. Addl. Chief ... on 22 February, 2023
Bench: Rajan Roy, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 4
Case :- CRIMINAL MISC. WRIT PETITION No. - 1360 of 2023
Petitioner :- Ram Shiromani Pandey
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Revenue Civil Sectt. Lko. And Others
Counsel for Petitioner :- Sushil Kumar Singh
Counsel for Respondent :- G.A.
Hon'ble Rajan Roy,J.
Hon'ble Narendra Kumar Johari,J.
On 17.2.2023, we had passed the following order:
"Heard Shri Sushil Kumar Singh, learned counsel for the petitioner and learned A.G.A. for the State.
The petitioner has filed this writ petition seeking a writ of mandamus to opposite parties no. 1 to 4 not to arrest the petitioner in Case Crime No. 63 of 2008, under Sections 419, 420, 467, 468, 471 IPC, Police Station - Kotwali Nagar, District - Sultanpur.
The petitioner has earlier filed a writ petition challenging the F.I.R. in respect of the aforesaid Case Crime No. 63 of 2008 which was registered as Writ Petition No. 414 (M/B) of 2009; Ram Shiromani Pandey Vs. State of U.P. and Ors. which was disposed of on 16.01.2019 in the following terms:-
"Heard learned counsel for the petitioner, learned A.G.A. and perused the F.I.R.
The petitioner Ram Shiromani Pandey shall not be arrested in Case Crime No. 63 of 2008 under Sections 467, 468, 471, 419, 420 I.P.C, P.S. Kotwali Nagar, District Sultanpur, till some credible evidence is collected against him subject to his cooperation in the investigation.
With these observations and directions, the writ petition is disposed of finally."
It is said that twice final reports were filed in Court. Thereafter, the matter was handed over to the CBCID in pursuance to the directions of SC/ST Commission, Lucknow which led to filing of the second writ petition by the petitioner bearing Criminal Misc. Writ Petition No. 23893 of 2020; Ram Shiromani Pandey Vs. State of U.P. and Ors. wherein apart from challenging the order dated 26.02.2019 by which the investigation was handed over to the CBCID by the State Government the order dated 02.04.2019 passed by the Additional Chief Judicial Magistrate for further investigation was also challenged. Apart from this, a writ of mandamus was sought commanding the respondents particularly the Investigating Officer of C.B. No. 32 of 2019 in relation to Case Crime No. 63 of 2008, P.S. Kotwali Nagar, District Sultanpur not to harass the petitioner or use the power of arrest to the petitioner. This prayer was made when the investigation was pending. In fact the petitioner was never arrested. The said writ petition was dismissed as lacking on merit on 21.11.2022 as the Court did not find any error in the orders impugned.
The contention of Shri S.K. Singh, learned counsel for the petitioner is that now CBCID proposes to file a charge sheet and for this purpose it is trying to apprehend the petitioner who is 79 years of age and in this context he has relied upon a judgment of Hon'ble the Supreme Court reported in (2022) 1 SCC 676; Siddharth Vs. State of U.P. and Anr. to contend that the petitioner not having been arrested since 2008 can not be arrested only for the purpose of producing him before the Court below along with the filing of charge sheet.
As regards the subsequent application under Section 482 Cr.P.C. filed by the petitioner bearing No. 682 of 2023 challenging the charge sheet, though, it had not been filed in Court, the said writ petition has been disposed of with liberty to approach the competent Court.
In the case of Siddharth (supra) the Supreme Court has clearly held that Section 170 Cr.P.C. does not impose an obligation on Police to arrest each and every accused at the time of filing of charge sheet and therefore, if the Investigating Officer does not believe that the accused will abscond or disobey summons he/she is not required to be produced in custody. If the petitioner has not been arrested for so long, then, in view of the law on the subject the Police has to think twice before trying to arrest him. It has to keep in mind the law in the case of Siddharth (supra) and other decisions on the subject.
Considering the contention of the petitioner's counsel that it is not obligatory on the police to arrest each and every accused at the time of filing of charge sheet and, therefore, if the Investigating Officer does not believe that the accused will abscond or disobey summons he/she is not required to be produced in custody, therefore, the insistence of the CBCID for arrest of the petitioner so that it may be able to file charge sheet in Court, is against the law declared by Hon'ble the Supreme Court and that recently in 2023 also a request letter of arrest has been sent by the Investigating Officer of CBCID to the Superintendent of Police, Sultanpur as was done earlier on 01.12.2020 which is on records of application under Section 482 Cr.P.C, filed by the petitioner which may be summoned by the Court, therefore, this is a subsequent cause of action which has arisen after completion of investigation and preparation of charge sheet, let the learned A.G.A. seek instructions in the matter as to why arrest of the petitioner, who is aged about 79 years, is being insisted upon, if it is so, only for the purposes of filing of charge sheet in Court i.e. after the investigation has been completed. if he has not been arrested for so long as the F.I.R. was lodged in 2008.
Prima facie, the cause of action is a fresh one on the aforesaid ground.
List/ put up on 22.02.2023 as fresh.
Till the next date if listing, the petitioner shall not be arrested in 63 of 2008, under Sections 419, 420, 467, 468, 471 IPC, Police Station - Kotwali Nagar, District - Sultanpur unless the prerequisites as laid down in the case of Siddharth (supra) are satisfied.
This order shall not be treated as an impediment in filing charge sheet against the petitioner before the competent Court as that is not the intent of this order.
It is further made clear that if charge sheet has not been prepared and investigation is not complete as yet for which the petitioner is being sought to be arrested then this order shall not be an impediment in such arrest of the petitioner."
In response to the order of this Court dated 17.2.2023, learned AGA says that the investigation has been completed, charge sheet has been prepared against the petitioner and only arrest of the petitioner remains.
Once the statement has come from the learned AGA that charge sheet has been prepared then obviously the petitioner would not be arrested unless the pre-requisite conditions as laid down in the judgment of Hon'ble the Supreme Court in the case of Siddharth Vs. State of U.P. and Anr. (2022) 1 SCC 676 are satisfied. It is open for the investigating officer to file the charge sheet in court.
This order shall, however, be subject to any order/process being issued by the trial court, meaning thereby the trial court would not be fettered by this order, which shall operate only till any such order is passed by the trial court which could be of arrest also, but, as per law.
In view of the above statement by learned AGA and observations made hereinablve, nothing survives for adjudication.
Accordingly, the writ petition is disposed of.
(Narendra Kumar Johari, J.) (Rajan Roy, J.)
Order Date :- 22.2.2023
AKK
