High Court refused to quash First Information Report but directed police to ensure arrest complies with CrPC Sections 41(1)(b) and 41-A, relying on Arnesh Kumar.
Prayer for quashing of FIR rejected; direction given for police to comply with Section 41(1)(b) read with Section 41-A Cr.P.C. during arrest.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 46
Case :- CRIMINAL MISC. WRIT PETITION No. - 9922 of 2019
Petitioner :- Piyush Sharma And 5 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Prashant Shukla,Pankaj Tiwari Counsel for Respondent :- G.A.
Hon'ble Naheed Ara Moonis,J. Hon'ble Anil Kumar-IX,J.
Heard learned counsel for the petitioners, Sri Anurag Khanna, learned counsel assisted by Sri Raghav Dev Garg Advocate, who has file memo of appearance on behalf of respondent no.3 and learned AGA for the State.
This writ petition has been filed by the petitioners with the prayer to quash the first information report dated 05.04.2019 registered in Case Crime No. 0775 of 2019, under Sections 147, 323, 452 and 506 IPC, P.S. Indrapuram, District Ghaziabad.
Learned counsel for the petitioners submitted that the impugned first information report has been lodged by the respondent no. 3 containing absolutely false and concocted allegations against the petitioners with the ulterior intention of harassing them. He further submitted that apart from the bald allegations made in the impugned first information report no evidence is forthcoming even prima facie indicating at the complicity of the petitioners in the commission of the alleged crime and hence the impugned first information report is liable to be quashed. If the offence alleged to have been committed by the petitioners be taken in entirety and charges are found to be proved, the petitioners cannot be awarded sentence of more than 7 years. In this view, the arrest of the petitioners should not be effectuated by the police personnel.
Per contra the learned A.G.A. contended that the allegation contained in the first information report cannot be aborted at this stage. The petitioners will have ample opportunity to rebut the allegations made against them.
Considering the submission advanced by the learned counsel for the petitioners we do not find any cogent or convincing reason to quash the first information report, hence the prayer for quashing the first information report is refused.
The fact of the matter is that till date arrest has not been effectuated and this is mere apprehension of the petitioners that they would be arrested in breach of provisions as contained under Section 41 (1) (b) read with Section 41-A of the Cr.P.C.
Once there is statutory provision provided for then it is always expected that the said provisions would be adhered to and in case there is any violation of the same, complaint can also be made before the Magistrate concerned to remedy the situation.
In view of the above, it is hereby directed that in case arrest of petitioners is to be effectuated in the aforesaid case in which they are wanted, the concerned police personnel should deal with the matter in compliance of the provisions as contained under Section 41 (1) (b) read with Section 41-A of the Cr.P.C. as per direction of Hon'ble Apex Court in the case of Arnesh Kumar vs. State of Bihar and another, 2014 Law Suit (SC) 518.
It is further provided that if the investigation in this matter has been completed and police report under Section 173 (2) Cr.P.C. has been filed, the petitioners shall not be entitled to any benefit of this order.
The writ petition stands disposed of.
Order Date :- 16.4.2019 Meenu
2 issues framed by the court
Whether the first information report under Sections 147, 323, 452 and 506 IPC should be quashed given the lack of prima facie evidence.
Whether petitioners can restrain arrest without a prohibitory order when Section 41(1)(b) rules are alleged to be violated.
Colour shows how this judgement treated each authority
Arnesh Kumar vs. State of Bihar and anotherApplied¶12
Arnesh Kumar vs. State of Bihar and another, 2014 Law Suit (SC) 518
3 provisions across 3 enactments
Piyush Sharma And 5 Others
State Of U.P. And 2 Others
Naheed Ara Moonis
Anil Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
