Pappu and 2 Others Vs State of U.P. Thru. Addl. Chief Secy. /Prin. Secy. Home Lko. and Another

Neutral Citation No. - 2024:AHC-LKO:13838

Court No. - 15

Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 279 of 2024

Applicant :- Pappu And 2 Others Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. /Prin. Secy. Home Lko. And Another Counsel for Applicant :- Ankit Tripathi,Bhupendra Singh Bisht

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Counsel for Opposite Party :- G.A.

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Hon'ble Mohd. Faiz Alam Khan,J.

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Heard learned counsel for the applicants as well as learned AGA for the State and perused the record.

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The instant application has been moved by the applicants- Pappu, Abdul and Jafar , in Case Crime No. 235 of 2023, under Sections 323, 324, 308, 504 and 506 of I.P.C., Police Station- Siddhauli, District- Sitapur, with the prayer to enlarge him on anticipatory bail, as he is apprehending arrest in the above-mentioned case.

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Learned counsel for the accused-applicants while pressing the anticipatory bail application submits that it is a case of false implication. The F.I.R. of this case has been lodged under Sections 323, 324, 452 and 506 of I.P.C. and all the offences, which are being investigated by the Investigating Officer, are punishable with up to 7 years of imprisonment. Similar facility has been granted to co-accused Danish who is on identical footing as of the applicants, by this Court, vide order dated 18.1.2024 passed in CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 90 of 2024. However, the Investigating Officer of this case is trying hard to apprehend the applicant without adhering to the law laid down by hon'ble the Supreme Court in Arnesh Kumar Vs. State of Bihar and another, reported in (2014) 8 SCC 273 and Social Action Forum for Manav Adhikar and Another Vs. Union of India, Ministry of law and Justice and others (2018) 10 SCC 443 .

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Learned A.G.A., on the other hand, opposes the prayer of anticipatory bail of the applicant on the ground that many injured persons have sustained injuries including two ladies and therefore, the applicant is not entitled for any discretion.

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In Arnesh Kumar Vs. State of Bihar and another, reported

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in (2014) 8 SCC 273, Hon'ble the Supreme Court was pleased to observe as under:-

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"7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.

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7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.

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9. ...........The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.

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10. We are of the opinion that if the provisions of Section 41 CrPC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 CrPC for effecting arrest be discouraged and discontinued.

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

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11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;

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11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

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11.3. The police officer shall forward the check list duly filled 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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11.4. 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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11.5. 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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11.6. Notice of appearance in terms of Section 41-A CrPC 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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11.7. 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 the High Court having territorial jurisdiction.

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11.8. 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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12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A IPC 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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Hon'ble Supreme Court in Social Action Forum for Manav Adhikar and Another Vs. Union of India, Ministry of law and Justice and others (2018) 10 SCC 443 , was pleased to observe as under:-

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"..........30. The aforesaid decision, as is perceptible, is in accord with the legislative provision. The directions issued by the Court are in the nature of statutory reminder of a constitutional court to the authorities for proper implementation and not to behave like emperors considering the notion that they can do what they please. In this context, we may refer with profit to a passage from Joginder Kumar v. State of U.P. [Joginder Kumar v.

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State of U.P., (1994) 4 SCC 260 : 1994 SCC (Cri) 1172] : (SCC pp. 26768, para 20)

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"20. ? No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do."

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31. Again, the Court in Joginder Kumar [Joginder Kumar v. State of U.P., (1994) 4 SCC 260 : 1994 SCC (Cri) 1172] , while voicing its concern regarding complaints of human rights pre and after arrest, observed thus : (SCC pp. 263-64, para 9)

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"9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first?the criminal or society, the law violator or the law abider...."

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37. ................. The directions issued in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 : (2014) 3 SCC (Cri) 449 are in consonance with the provisions contained in Section 41 CrPC and Section 41-A CrPC. Similarly, the guidelines stated in Joginder Kumar v. State of U.P., (1994) 4 SCC 260 : 1994 SCC (Cri) 1172 and D.K. Basu v. State of W.B., (1997) 1 SCC 416 : 1997 SCC (Cri) 92 are within the framework of the Code and the power of superintendence of the authorities in the hierarchical system of the investigating agency. The purpose has been to see that the investigating agency does not abuse the power and arrest people at its whim and fancy."

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(Emphasis mine)

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Having regard to all the facts and circumstances of the case, it is reflected that the F.I.R. has been lodged against the applicant under Sections 323, 324, 452 and 506 of I.P.C., and during the course of the investigation, Sections 308 and 504 of I.P.C. have been added and Section 452 I.P.C. has been dropped. Thus, it prime facie appears that the offences, in which the investigation is going on, are the offences punishable with up to seven years of imprisonment. Similar facility has been

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granted to co-accused Danish who is on the identical footing as of the applicants. Thus,the instant anticipatory bail application moved by the applicants- Pappu, Abdul and Jafar is finally disposed of with a direction to the Investigating Officer of the above mentioned case that if the offences, wherein the investigation is being made, are punishable with up to seven years of imprisonment, the Investigating Officer shall comply and adhere to the law laid down by the hon'ble Supreme Court in Arnesh Kumar (supra) and Social Action Forum for Manav Adhikar (supra).

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A copy of this order be immediately sent to the concerned Investigating Officer through the Superintendent of Police, Sitapur.

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Order Date :- 16.2.2024 Muk

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Digitally signed by :- MOHD UMAR KHAN High Court of Judicature at Allahabad, Lucknow Bench

Pappu and 2 Others v. State of U.P. Thru. Addl. Chief Secy. /Prin. Secy. Home Lko. and Another

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Pappu and 2 Others v. State of U.P. Thru. Addl. Chief Secy. /Prin. Secy. Home Lko. and Another

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