The High Court considered a writ petition to quash an FIR and direct non-arrest in a case involving offences punishable by seven years. Relying on this Court's guidelines derived from Arnesh Kumar, the Court held that the provisions apply and disposed of the petition.
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. - 47
Case :- CRIMINAL MISC. WRIT PETITION No. - 19014 of 2022
Petitioner :- Gopal And 3 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ruhi Yadav Counsel for Respondent :- G.A.
Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Narendra Kumar Johari,J.
Heard Ms. Ruhi Yadav, learned counsel for the petitioners and learned AGA.
Present writ petition has been preferred for quashing the FIR dated 29.10.2022 being Case Crime No.0598 of 2022 under Sectin 452, 323, 504 and 325 IPC, P.S. Sikandararau, Distt. Hathras and for a direction to respondents not to arrest the petitioners 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 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.
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 :- 9.12.2022 SP/
Digitally signed by SURYA PRAKASH Date: 2022.12.19 16:03:47 IST Reason: Location: High Court of Judicature at Allahabad
2 issues framed by the court
Whether the petition for quashing the FIR and directing non-arrest should be allowed based on guidelines for offences punishable up to seven years.
Whether the impugned FIR and arrest directions are covered under the bail-as-rule jurisprudence (Section 41A Cr.P.C.).
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)
Arnesh Kumar v. State of BiharRelied on¶78
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
Gopal And 3 Others
State Of U.P. And 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
