Disposed

Kurban v. State of U.P. and 2 Others

Allahabad HC28 Jul 2023CRLP/11769/2023

Case brief

AI extract

What is this about?

Court disposed of a writ petition assailing the FIR by observing that freedom is protected unless credible material emerges. Direction given for notice under CrPC sections and investigation completion within 60 days per Supreme Court guidelines.

What did the court decide?

Writ petition disposed of; petitioner's freedom protected pending investigation with notice and report under Cr.P.C. sections.

Kurban Vs State of U.P. and 2 Others — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:151835-DB

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Court No. - 67

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Case :- CRIMINAL MISC. WRIT PETITION No. - 11769 of 2023

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Petitioner :- Kurban Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Avinash Pandey Counsel for Respondent :- G.A.

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Hon'ble Rahul Chaturvedi,J. Hon'ble Mohd. Azhar Husain Idrisi,J.

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Heard learned counsel for the petitioner, learned A.G.A. for the State and perused the record.

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By means of the present writ petition under Article 226 of the Constitution of India, the petitioner is assailing the legality and validity of the FIR dated 24.05.2023 registered as Case Crime No.218 of 2023 under sections 406, 420, 506 I.P.C. P.S. Kandhala, District Shamli.

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Submission made by learned counsel for the petitioner is that the present FIR is an outcome of dispute between the parties. The offences are punishable under 7 years or less than 7 years.

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The Supreme Court in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 has laid down guidelines for arresting a person, which are being reproduced hereinbelow:-

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"Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

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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.;

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All police officers be provided with a check list containing specified subclauses under Section 41(1)(b)(ii);

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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;

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The Magistrate while authorizing 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 authorize detention;

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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;

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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

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be recorded in writing;

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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.

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Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

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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."

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Taking into account the totality of the fact and circumstances of the case and the in the light of the ratio laid down in the case of Arnesh Kumar (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.

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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 the case of Arnesh Kumar (supra) . 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.

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With the aforesaid observations, the instant writ petition stands disposed off. Order Date :- 28.7.2023 Israr/ MT

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Digitally signed by :- ISRAR AHMAD High Court of Judicature at Allahabad

Kurban v. State of U.P. and 2 Others

Case brief

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Kurban v. State of U.P. and 2 Others

Case brief

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