Allahabad High Court
Shri Momin Khan vs State Of Up And 3 Others on 22 May, 2024
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:93093-DB
Court No. - 67
Case :- CRIMINAL MISC. WRIT PETITION No. - 8542 of 2024
Petitioner :- Shri Momin Khan
Respondent :- State Of Up And 3 Others
Counsel for Petitioner :- Diwakar Tiwari,Gyanendra Singh
Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
Hon'ble Ms. Nand Prabha Shukla,J.
Heard learned counsel for the petitioner, learned A.G.A. for the State and also perused the record.
By means of the present writ petition under Article 226 of the Constitution of India, the petitioner is assailing the legality and validity of the FIR dated 07.05.2024 registered as Case Crime No. 107 of 2024, under Sections 147, 323, 504, 506 IPC and Sections 3(1)(da), 3(1)(dha) and 3(2)(v-a) of the S.C./S.T. Act, Police Station-Naraini, District-Banda.
Submission made by learned counsel for the petitioner is that the offences are punishable under 7 years or less than 7 years.
The Supreme Court in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 has laid down guidelines for arresting a person, which are being reproduced hereinbelow:-
"Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:
All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 Cr.P.C.;
All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);
The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;
The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine."
In a recent judgment in the case of Md. Asfak Alam vs. The State of Jharkhand and another (Criminal Appeal No. 2207 of 2023), decided on 31.7.2023 the Hon'ble Apex Court has reiterated the guidelines given in the case of Arnesh Kumar (Supra).
While deciding the case of Siddharth Vs. State of Uttar Pradesh and another reported in (2022) 1 Supreme Court Cases 676, the Hon'ble Apex Court has observed that 'we may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the investigating officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused'.
The Hon'ble Apex Court has virtually deviated the practice and emphasizing the value of the personal liberty in context of applying the discretion to grant bail but the Court has cautioned that this liberty to the accused persons to surrender and apply for bail should not be granted in a routine manner. It has been mentioned that the Court should not do so by mechanically rejecting the petition and asking the the accused appellant to surrender before the court of Magistrate. It would amount to rubbing soap to the broom while directing the appellant to surrender and seek regular bail before the trial court and the High Court fell into error in adopting such type of practice and thus such type of order is liable to be set aside.
In the light of the above and reiterating plausible law laid down in the case of Siddharth (Supra) under the same circumstances in the case of Md. Asfak Alam (Supra) the Apex Court has issued certain guidelines keeping in view the guidelines issued in the case of Arnesh Kumar (supra) and Md. Asfak Alam (supra), this Court too embodied the guidelines in toto and directed the police authorities/I.O. to give a notice to the accused persons as provided under Sections 41 and 41(A) of Cr.P.C. and summon the petitioners in the case. The accused-petitioners are under a legal obligation to render their fullest cooperation in the investigation of the case.
It is made clear that if some credible material is brought on record during investigation against the petitioners showing their involvement in the commission of offence, then only the I.O. of the case after recording the reasons for their arrest may affect the arrest of the petitioners. It is also expected from the I.O. that he shall conduct transparent and impartial investigation and conclude the same without wasting of time as per the legal provisions under the Code of Criminal Procedure and submit the police report u/s 173(2) Cr.P.C. before the concerned Magistrate.
With the aforesaid observations, the instant writ petition stands disposed of.
Order Date :- 22.5.2024
Shivani
