Allahabad High Court
Rishikesh Tripathi @ Rishikesh Pati ... vs State Of Up And 3 Others on 31 May, 2024
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:100169-DB
Court No. - 67
Case :- CRIMINAL MISC. WRIT PETITION No. - 9132 of 2024
Petitioner :- Rishikesh Tripathi @ Rishikesh Pati Tripathi And 4 Others
Respondent :- State Of Up And 3 Others
Counsel for Petitioner :- In Person,Vikrant Pandey
Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
Hon'ble Ms. Nand Prabha Shukla,J.
Heard Sri Vikrant Pandey, learned counsel for petitioners and learned A.G.A. for the State. Perused the record.
By means of the present writ petition under Article 226 of the Constitution of India, the petitioners are assailing the legality and validity of FIR dated 25.01.2024, registered as Case Crime No. 43 of 2024, under Sections 147, 323, 504, 506 I.P.C., Police Station Dhoomanganj, District Prayagraj.
There are five petitioners. Sri Rishikesh Tripathi @ Rishikesh Pati Tripathi, a practicing advocate of this Court, his wife Anita Tripathi, his two daughters Shristi Tripathi and Shobha Tripathi @ Saumaya Tripathi and his son Adarsh Tripathi. It is given to understand Shobha @ Saumaya Tripathi and Adarsh Tripathi are provenly minors and they cannot be made accused.
To the utter surprise of the Court, they have also made accused in Case Crime No. 43 of 2024, Police Station Dhoomanganj, District Prayagraj Commissionerate by Smt. Madhuri Dwivedi (respondent no. 4) for the alleged incident which is taken place on 23.1.2024. From the entire reading of the FIR, there is not a whisper regarding the previous animosity or any ill mensrea in the FIR. All of sudden without any rhyme or reason this incident have occurred, but fact remains, that FIR was registered under Sections 147, 323, 504, 506 I.P.C and all are punishable less than 7 years.
It is also from the record that this is a cross case lodged by the petitioners as Case Crime No. 39 of 2024 under Sections 323, 504, 435 IPC, Police Station Dhoomanganj, Prayagraj Commissionerate. The present FIR is counter productive in order to nullify/nutralise the earlier Case Crime No. 39 of 2024.
Learned counsel for the petitioners submits that the allegations made against the petitioners in the F.I.R. are with malafide intention and after exaggerating the incident. The petitioner's counsel has contended that all the offences levelled against the petitioner is punishable up to 7 years or less than 7 years, but the police is hotly chasing the petitioner. Learned counsel for petitioner has relied upon in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 whereby the Hon'ble Apex court has laid down guidelines with regard to arrest of a person, which are being reproduced herein below :
"Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise 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 authorising 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 authorise 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.
Authorising 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 the recent judgment of Md. Asfak Alam vs. The State of Jharkhand and another passed in 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).
Taking into account the totality of the facts and circumstances of the case and the in the light of the ratio laid down by Hon'ble Apex Court in the cases of Arnesh Kumar and Md. Asfak Alam (supra), the freedom of the petitioner is protected, provided if the I.O. of the case gives notice to him as provided under Sections 41 and 41(A) of Cr.P.C. and summon the petitioner in this case, petitioner is obliged to render his fullest cooperation in the investigation.
It is made clear that if some credible material is brought on record during investigation against the petitioner, then only the I.O. of the case after recording its reason may affect the arrest of the petitioner, strictly adhering to the guidelines provided in aforementioned cases of Hon'ble Supreme Court. It is also directed that the I.O. of the case shall gear up the investigation and conclude the same preferably within a period of 60 days from today and submit its report u/s 173(2) Cr.P.C. in the court of concerned Magistrate.
It is incumbent upon the petitioners to participate in the investigation and the Investigating Officer is directed to conclude the investigation within 60 days after strictly adhering the aforementioned process as contemplated in Arnesh Kumar's case.
However, it is made clear that the Court is protecting the interest of petitioners no. 3, 4 and 5 two girls and a minor son and they shall not be arrested till further orders of this Court irrespective of the report u/s 173(2) Cr.P.C.
The petitioners have expressed their certain misgivings and suspicion about the impartiality of the Station House Officer, Dhoomanganj, District Prayagraj.
Under such circumstances, we direct the Commissioner of Police Prayagraj Commissionerate, District Prayagraj to transfer the investigation of the case to some other police station at Allahabad Commissionerate and entrust some new Investigating Officer of C.O. rank to conduct the investigation fairly, impartially and in most professional way within the specified time.
With the aforesaid observations, the instant writ petition stands disposed off.
Order Date :- 31.5.2024
Puspendra
