Disposed

Shikhar Jain v. State of U.P. and 2 Others

Allahabad HC31 Oct 2023CRLP/16997/2023

Case brief

AI extract

What is this about?

Criminal miscellaneous writ petition assailing the FIR constitution under Sections 379, 506 IPC. High Court held that petitioner's freedom is protected if service of summons is made under Section 41A CrPC, directing investigation to conclude within 60 days.

What did the court decide?

Court directed investigation to conclude within 60 days and petitioner to be summoned under Section 41A CrPC rather than arrested, subject to emergence of credible material.

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

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Neutral Citation No. - 2023:AHC:208353-DB

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Court No. - 67

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Case :- CRIMINAL MISC. WRIT PETITION No. - 16997 of 2023

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Petitioner :- Shikhar Jain Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Vinay Kumar Mishra 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 petitioner and learned A.G.A. for the State. 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 FIR dated 9.10.2023 registered as Case Crime No. 619 of 2023, under Sections 379, 506 IPC, Police Station Ramgarh Tal, District Gorakhpur.

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Learned counsel for the petitioner submits that the allegations made against the petitioner in the F.I.R. are with malafide intention and after exaggerating the incident. The petitioner's counsel has contended that all the offences levelled against the petitioner is punishable up to 7 years or less than 7 years, but the police is hotly chasing the petitioner. Learned counsel for petitioner has relied upon in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 whereby the Hon'ble Apex court has laid down guidelines with regard to arrest of a person, which are being reproduced herein below :

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"Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise 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 authorising 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 authorise 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 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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Authorising 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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In the recent judgment of Md. Asfak Alam vs. The State of Jharkhand and another passed in Criminal Appeal No.2207 of 2023 decided on 31.7.2023, the Hon'ble Apex Court has reiterated the guidelines given in the case of Arnesh Kumar (supra) .

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Taking into account the totality of the facts and circumstances of the case and the in the light of the ratio laid down by Hon'ble Apex Court in the cases of Arnesh Kumar and Md. Asfak Alam (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 aforementioned cases of Hon'ble Supreme Court. 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 .

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Order Date :- 31.10.2023/M. Tarik

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Digitally signed by :- MOHD TARIK High Court of Judicature at Allahabad

Shikhar Jain v. State of U.P. and 2 Others

Case brief

What is this about?

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Shikhar Jain v. State of U.P. and 2 Others

Case brief

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