Allahabad High Court
Ashok And Another vs State Of U P And 4 Others on 14 March, 2023
Bench: Vivek Kumar Birla, Surendra Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 45
Case :- CRIMINAL MISC. WRIT PETITION No. - 20 of 2023
Petitioner :- Ashok And Another
Respondent :- State Of U P And 4 Others
Counsel for Petitioner :- Uttar Kumar Goswami
Counsel for Respondent :- G.A.,Shiv Murti Kushwaha
Hon'ble Vivek Kumar Birla,J.
Hon'ble Surendra Singh-I,J.
Heard Sri Uttar Kumar Goswami, learned counsel for the petitioners, Sri Shiv Murti Kushwaha, learned counsel for the respondent no.5 as well as Sri Ratan Singh, learned A.G.A. for the State respondents.
The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 05.10.2022 registered as Case Crime No. 0132 of 2022, under Sections 147, 148, 149, 308, 323, 504 and 506 IPC, P.S.Ahar, District Bulandhshar and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.
At the very outset by drawing attention to the order dated 08.12.2022 passed by this Court in Criminal Misc. Writ Petition No.18952 of 2022 (Pushpendra and 6 Others vs. State of U.P. and 3 Others), learned counsel for the petitioners submits that indulgence has been granted by this Court to six other co-accused persons. It is submitted that the petitioners are also entitled for the same indulgence. The order dated 08.12.2022 is quoted as under:-
"Heard learned counsel for the petitioners and Shri Nitin Kesharwani, learned AGA for the State.
Present writ petition has been preferred for quashing the FIR dated 05.10.2022 being Case Crime No.132 of 2022, under Sections 147, 148, 149, 323, 308, 504, 506 IPC, P.S. Ahar, Distt. Bulandshahr and for a direction to respondents not to arrest the petitioners pursuant to aforesaid FIR.
The submission is that all alleged offences are punishable with imprisonment of seven years, 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 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 recognised 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."
Learned AGA for the State though opposed the present petition but could not dispute the aforesaid facts.
Accordingly, the present petition also stands disposed of in same terms.
Order Date :- 14.3.2023
Nitendra
