Allahabad High Court
Amit And 10 Others vs State Of U.P. And 3 Others on 1 February, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:17697-DB
Court No. - 42
Case :- CRIMINAL MISC. WRIT PETITION No. - 19995 of 2022
Petitioner :- Amit And 10 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Arunesh Singh
Counsel for Respondent :- G.A.,Alok Kumar Yadav
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Gajendra Kumar,J.
1. Heard learned counsel for the petitioners and learned AGA for the State.
2. The instant writ petition has been preferred for quashing the impugned First Information Report dated 30.10.2022 registered as Case Crime No.33 of 2022, under Sections 498-A, 323, 504, 506 IPC and Section 3/4 of D.P. Act, P.S. Mahila Thana, District-Mainpuri and for a direction to the respondents not to arrest the petitioner pursuant to aforesaid FIR.
3. Vide order dated 21.12.2022, the matter was referred to the Mediation and Conciliation Centre by a co-ordinate Bench of this Court.
4. From perusal of report dated 25.04.2023 submitted by the Registrar, AHCMCC, it is evident that mediation session took place on 12.02.2023, 05.03.2023, 31.03.2023 and 21.04.2023, but respondent had not put in appearance in the mediation proceedings in spite of repeated indulgence.
5. Learned counsel for the petitioners states that petitioners were inclined to settle the matter through mediation and conciliation centre, but on account of non-cooperation from the side of the informant, the same could not be finalized. It is further submitted that as the offence is less than seven years, the benefit of mandate of Section Section 41 and 41A of the Code may be extended in favour of the petitioners. He has placed reliance on the judgment of Apex Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 as well as 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.
6. Learned counsel for the respondents opposed the prayer for quashing the FIR, which prima facie discloses commission of cognizable offence and therefore, the prayer made to quash the FIR cannot be entertained in view of law laid down by the Apex Court in State of Telangana vs. Habib Abdullah Jellani (2017) 2 SCC 779 and Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and others (2021) SCC Online 315. He has further submitted that the petitioner is habitual offender and six FIRs have been registered against him in different States of India. Truthfulness of allegations and establishment of guilt take place, when the investigation is done or trial proceeds. Probability, reliability or genuineness cannot be looked under Art.226 of the Constitution. The FIR can only be quashed in a writ jurisdiction, if the FIR does not discloses commission of offence and that too prior to framing of charges. As such, it is submitted that no interfere is required in the matter.
7. 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).
8. We have gone through the impugned first information report and we are of the opinion that the respondents must follow the guidelines as enunciated by the Apex Court in Arnesh Kumar's case (supra).
9. Accordingly, the instant petition also stands disposed off in view of the judgments cited above.
Order Date :- 1.2.2024
Ashutosh/S
