Allahabad High Court
Pankaj Kesarwani vs State Of U.P. on 5 February, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:19495-DB
Court No. - 42
Case :- CRIMINAL MISC. WRIT PETITION No. - 345 of 2024
Petitioner :- Pankaj Kesarwani
Respondent :- State of U.P.
Counsel for Petitioner :- Shaym Dhar Yadav,Dhirendra Kumar Srivastava
Counsel for Respondent :- G.A.
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Gajendra Kumar,J.
1. Heard learned counsel for the petitioner and learned AGA for the State.
2. The instant writ petition has been preferred for quashing the impugned First Information Report dated 26.11.2023 registered as Case Crime No.119 of 2023, under Sections 420 IPC and Section 72/84-C of Information Technology Act, P.S. Karma, District Sonbhadra and for a direction to the respondents not to arrest the petitioners pursuant to aforesaid FIR.
3. Learned counsel for the petitioner submits that the petitioner is innocent and has not committed any offence. The petitioner has been falsely implicated in the present case by the complainant with ulterior purpose, which also makes the entire prosecution case highly fictitious and doubtful. There is no motive or reason for the petitioner to indulge himself in the alleged offence. He has lastly submitted that even the alleged offences are punishable with imprisonment of seven years, therefore, the police authorities must follow the procedure laid down under Section 41-A Cr.P.C. 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.
4. 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. 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.
5. 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).
6. 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).
7. Accordingly, the instant petition also stands disposed off in view of the judgments cited above.
Order Date :- 5.2.2024
Sanjeet
