This court disposed of a writ petition seeking quashing of an FIR and prevention of arrest under Sections 363 and 506 IPC. Relying on guidelines from Vimal Kumar and Arnesh Kumar, the bench applied the principle that bail is the rule for such offences, resolving the petition without substantive finding on facts.
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Court No. - 47
Case :- CRIMINAL MISC. WRIT PETITION No. - 16973 of 2022
Petitioner :- Akhilesh Nishad Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Pramod Kumar Srivastava,Manoj Kumar Srivastava Counsel for Respondent :- G.A.
Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Narendra Kumar Johari,J.
Heard learned counsel for the petitioner and learned A.G.A. for the State.
Present writ petition has been preferred for quashing the FIR dated 04.10.2022, being Case Crime No. 431 of 2022, under Sections 363, 506 IPC, P.S. Karwi Kotwali Nagar, District Chitrakoot and for a direction to respondents not to arrest the petitioner pursuant to aforesaid FIR.
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 petitioner has been wrongly implicated and could not be arrested. Learned counsel for the petitioner 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.
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).
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.
Accordingly, the instant petition also stands disposed of in view of the judgments cited above.
Order Date :- 18.11.2022 ML
Digitally signed by MUNNA LAL Date: 2022.11.21 09:39:57 IST Reason: Location: High Court of Judicature at Allahabad
2 issues framed by the court
Whether the writ petition for quashing the FIR and preventing arrest should be disposed of in light of established guidelines regarding arrests for offences with seven years imprisonment.
Whether the criteria set in Vimal Kumar and Arnesh Kumar cases are applicable to the facts of the instant case.
Colour shows how this judgement treated each authority
Vimal Kumar and 3 others vs. State of UP and 3 othersRelied on¶7
Criminal Misc. Writ Petition No.17732 of 2020 (Vimal Kumar and 3 others vs. State of UP and 3 others) dated 28.01.2021
Arnesh Kumar v. State of BiharRelied on¶8
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 · Who else cites this
Nikesh Tarachand Shah v. Union of IndiaReferred¶8
Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1 · Who else cites this
Akhilesh Nishad
State Of U.P.
3 Others
Mahesh Chandra Tripathi
Narendra Kumar Johari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
