Allahabad High Court
Mohd. Junaid And Others vs State Of U.P. Thru. Prin. Secy. ... on 1 May, 2023
Bench: Sangeeta Chandra, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 10
Case :- CRIMINAL MISC. WRIT PETITION No. - 471 of 2023
Petitioner :- Mohd. Junaid And Others
Respondent :- State Of U.P. Thru. Prin. Secy. Home Civil Secrett. Lko. And Others
Counsel for Petitioner :- Aviral Srivastava,Amar Singh
Counsel for Respondent :- G.A.,Laxmi Narayan Gupta,Mohd. Usman Ghani Khan
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 as well as the counsel who is appearing for private respondent also.
This petition has been filed by the petitioners with following prayers:
i) issue a writ, order or direction in the nature of Certiorari quashing the impugned first information report dated 17.11.2022, registered as Case Crime No.0206 of 2022 under Sections 498-A, 323, 504, 506 I.P.C. and 3.4 D.P. Act and 3/4 of Muslim Women (Protection of Rights on Marriage) Act 2019 Police Station Naka, District Lucknow.
ii) issue a writ, order or direction in the nature of Mandamus commanding the opposite party No. 2 & 3 not to harass and arrest the petitioners in pursuance of the impugned F.I.R.
This Court has perused the Mediation Centre report dated 19.04.2023, wherein, it has come out that mediation proceeding between the parties has failed.
Learned counsel appearing on behalf of the petitioners states that all the Sections invoked against the petitioners carried the punishment of less than seven years, therefore, the petitioners are entitled to get 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 :- 1.5.2023
Reena/-
