Disposed

Mohammad Ali @ Kamal and 5 Others v. State of U.P. and 3 Others

Allahabad HC11 Nov 2022CRLP/13531/2022

Case brief

AI extract

What is this about?

The Court disposed of a writ petition seeking quashing of an FIR and directions against arrest. Relying on Section 41A Cr.P.C. and the Arnesh Kumar guidelines, it held that arrest is not warranted given the potential sentence, and neither the case nor the petition was disposed of further on merits due to the inapplicability of arrest.

What did the court decide?

The petition stands disposed of. No specific relief like quashing of FIR or stay on arrest was explicitly granted due to disposal.

Mohammad Ali @ Kamal and 5 Others Vs State of U.P. and 3… — Bail and Remand | Allahabad HC (2022)

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Court No. - 47

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Case :- CRIMINAL MISC. WRIT PETITION No. - 13531 of 2022

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Petitioner :- Mohammad Ali @ Kamal And 5 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Jitendra Pratap Singh Counsel for Respondent :- G.A.,Ajeet Singh

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Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Narendra Kumar Johari,J.

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Heard learned counsel for the petitioner and learned A.G.A. for the State and Shri Ajeet Singh, learned counsel for the informant.

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Present writ petition has been preferred for quashing the FIR dated 18.08.2022, being Case Crime No.0258 of 2022, under Sections 498A, 323, 504, 506 IPC and Section 3/4 of D.P. Act, P.S. Kaptanganj, District Kushinagar and for a direction to respondents not to arrest the petitioners pursuant to aforesaid FIR.

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The submission is that all alleged offences are punishable with imprisonment of seven years, therefore the police authorities are bound to follow the procedure laid down under Section 41A Cr.P.C. The petitioners have been wrongly implicated and could not be arrested. Learned counsel for the petitioners has placed reliance on 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.

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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

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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).

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We have gone through the impugned first information report and we are of the opinion that the guidelines framed by this Court in the above noted judgement are equally applicable to the facts of the instant case.

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Accordingly, the instant petition also stands disposed of in view of the judgments cited above.

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Order Date :- 11.11.2022 ML

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Digitally signed by MUNNA LAL Date: 2022.11.14 17:15:45 IST Reason: Location: High Court of Judicature at Allahabad

Mohammad Ali @ Kamal and 5 Others v. State of U.P. and 3 Others

Case brief

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Mohammad Ali @ Kamal and 5 Others v. State of U.P. and 3 Others

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