Allahabad High Court
Dr. Kiriti Kanaujia And 3 Others vs State Of U.P. And 2 Others on 4 January, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:1892
Court No. - 91
Case :- CRIMINAL MISC. WRIT PETITION No. - 11480 of 2022
Petitioner :- Dr. Kiriti Kanaujia And 3 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Indrapal,Manik Chandra Yadav
Counsel for Respondent :- G.A.,Suresh Singh
Hon'ble Gajendra Kumar,J.
1. Heard learned counsel for the petitioners and learned AGA for the State-respondents.
2. The instant writ petition has been preferred for quashing the impugned First Information Report dated 26.06.2022 registered as Case Crime No.263 of 2022, under Sections 406, 506, 504, 323, 498-A IPC and Section 3/4 of D.P. Act, Police Station-Shahpur, District-Gorakhpur and for a direction to the respondents not to arrest the petitioner pursuant to aforesaid FIR.
Vide order dated 29.08.2022, the matter was referred to Mediation and Conciliation Centre by a co-ordinate Bench of this Court, which reads as follows:-
"Heard learned counsel for the petitioners and the learned A.G.A.
The petitioners, by means of this writ petition under Article 226 of the Constitution of India, has invoked the inherent jurisdiction of this Court with prayer to quash the impugned First Information Report dated 26.06.2022 registered as Case Crime No.263 of 2022, under Sections 406, 506, 504, 323, 498-A I.P.C. & Section 3/4 of Dowry Prohibition Act, Police Station Shahpur, District Gorakhpur.
It is submitted by learned counsel for the petitioners that the present matter relates to matrimonial dispute, which may be amicably settled by way of mediation and conciliation, therefore, the matter may be referred to the Mediation and Conciliation Centre of this Court.
Issue notice to the opposite party no.3, returnable at an early date. Steps may be taken within a week.
In view of the above, it is directed that petitioners shall deposit a sum of Rs.25,000/- within two weeks from today with the Mediation Centre of this Court out of which Rs.20,000/- shall be paid to the opposite party no.3, on the date fixed, for her appearance before the Mediation Centre and Rs. 5000/- shall be retained by the Mediation Centre as mediation fee.
The matter is remitted to the Mediation Centre with the direction that after deposit of such amount, by the petitioners, it shall issue notice to the parties fixing some date for mediation and shall make all possible efforts to conclude the mediation and conciliation proceedings expeditiously, preferably within a period of three months.
List after expiry of aforesaid period before the appropriate Bench along with the report of Mediation Centre.
Till the next date of listing, no coercive action shall be taken against the petitioners in the above mentioned case.
It is made clear that in case there occurs default by the petitioners either in depositing the amount or in appearing before the Mediation Centre on the date fixed, the interim order shall cease to operate and the Mediation Centre shall immediately communicate with the office which in turn shall list the case within a week before the appropriate Bench for passing orders in the matter."
3. From perusal of report dated 28.01.2023 submitted by the Registrar, AHCMCC, it is evident that mediation session took place on 09.11.2022, 02.12.2022, 06.01.2022 and 27.01.2023, respondent had not put in appearance in the mediation proceedings in spite of notice and repeated indulgence.
4. 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.
5. 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.
6. 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).
7. 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).
8. Accordingly, the instant petition also stands disposed off in view of the judgments cited above.
9. Further, Office is directed to return back the amount of Rs.20,000/- to the petitioner forthwith as it is informed that petitioner, in response to the order 29.08.2022, had already deposited the said amount in favour of the informant/opposite party, which has not been withdrawn by the informant.
Order Date :- 4.1.2024
Ashutosh
