Allahabad High Court
Shantanu Rai vs State Of U.P. Thru. Addl. Chief ... on 19 May, 2023
Bench: Sangeeta Chandra, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:35221-DB
Court No. - 10
Case :- CRIMINAL MISC. WRIT PETITION No. - 3850 of 2023
Petitioner :- Shantanu Rai
Respondent :- State Of U.P. Thru. Addl. Chief Secy./Prin. Secy. Deptt. Of Home And Others
Counsel for Petitioner :- Hemendra Kumar Rai, Rajeev Gupta,Shishir Chandra
Counsel for Respondent :- G.A.
Hon'ble Mrs. Sangeeta Chandra,J.
Hon'ble Narendra Kumar Johari,J.
(1) Heard Shri Anurag Dwivedi, Advocate holding brief of Shri Shishir Chandra, learned counsel for the petitioner and learned A.G.A. who appears on behalf of the State-respondents nos.1, 2 & 3.
(2) Present writ petition has been preferred for quashing the FIR dated 07.03.2023 bearing FIR/ Case Crime No.0130 of 2023, under Sections 505 (1) (b) IPC and Section 66 I.T. (Amendment) Act, 2008 at P.S. Shushant Golf City, District Lucknow, and for a direction to respondents not to arrest the petitioner pursuant to aforesaid FIR.
(3) It has been submitted by the learned counsel for the petitioner that the petitioner has been accused in the aforesaid FIR and the petitioner is being convicted only because he had filed a PIL before this Court with regard to the discovery of 3000 Tonnes of Gold Reserves in District Sonebhadra (U.P.).
(4) It has been submitted after some arguments that although Sections invoked against the petitioner carry of offences punishable upto seven years, therefore, he is entitled for the benefit of the judgment rendered by the Supreme Court in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
(5) Learned A.G.A. has produced before this Court a copy of instructions dated 19.05.2023 sent by the Sub-Inspector of Police Station Shushant Golf City, District Lucknow, wherein it has come out that the Cyber Crime Cell had traced out an E-mail sent by the petitioner through E-mail to him and the notice under Section 41-A was issued to him for recording of his statement before the Police, however, it could not be served upon the petitioner because he was absconding and his father Umesh Kumar was served the notice with the expectation that he will inform the petitioner who would get his statement recorded at the Police Station. It has been further submitted that the father of the petitioner or the petitioner had not been harassed in any manner by the police.
(6) Learned counsel for the petitioner says that he is ready to cooperate with the police in the investigation being carried out in pursuance of the impugned FIR.
(7) The submission is that all alleged offences are punishable with imprisonment upto seven years, therefore the police authorities are bound to follow the procedure laid down under Section 41-A Cr.P.C. The petitioner has been falsely implicated and could not be arrested. Learned counsel for the petitioner 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.
(8) 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).
(9) 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.
(10) Accordingly, the instant petition also stands disposed of in view of the judgments cited above.
Order Date :- 19.5.2023
N.PAL
