By the Court.—Heard learned counsel for the petitioner and the learned AGA.

2. This petition has been filed to quash the FIR lodged at 10 p.m. on 10.3.2009 by S.I. Mool Krishna Gautam, under Section 307, IPC at Case Crime No. 64 of 2009, P.S. Chandaus and to stay the petitioner’s arrest meanwhile.

3. The allegations in the FIR were that at about 8.20 p.m. on 10.3.2009 the police team headed by the informant accosted three miscreants at the Pisawa bus stand, in Aligarh who were suspected to be carrying illicit fire arms. The usual story of firing being resorted on the police, but the police personnel escaping injury was narrated. One miscreant Narendra who was alleged to have been arrested with a country made pistol and a live cartridge is said to have disclosed the name of the petitioner and one other person as his companions who had fled from the spot. It was also mentioned in paragraph 13 of the writ petition that the petitioner does not have any criminal antecedents.

4. On a plain reading of the FIR it cannot be said that prima facie no cognizable offence is disclosed or that there are any legal fetters on the conduct of the investigation, hence no ground exists for quashing the FIR.

5. As on the facts of the present case, the final relief of quashing of the FIR cannot be granted, the ancillary relief of stay of arrest during investigation can also not be granted (vide the Constitution Bench decisions in State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12 (para 6) and “Under Article 143 of the Constitution of India; In the matter of,” AIR 1965 SC 745 (para 137).

6. However in the recent decision of the Supreme Court reported in 2009 (3) ADJ 322 (SC), Lal Kamlendra Pratap Singh v. State of U.P., which has been directed to be circulated in the High Court and in subordinate Courts in U.P. it has been observed that in appropriate cases the Courts concerned may consider releasing an accused on interim bail, pending consideration of his regular bail, and that arrest was not a must in each case when an FIR of a cognizable offence was lodged.

7. The Full Bench of the Allahabad High Court in Amarawati v. State of U.P., 2005 Cri LJ 755, has been specifically approved in Lal Kamlendra Pratap Singh’s case. In this regard the Full Bench has held in Amarawati :

1. Even if a cognizable offence is disclosed in the FIR or complaint the arrest of the accused is not a must, rather the police officer should be guided by the decision of the Supreme Court in Joginder Kumar v. State of U.P., 1994 Cr LJ 1981, before deciding whether to make an arrest or not.

2. The High Court should ordinarily not direct any Subordinate Court to decide the bail application the same day, as that would be interfering with the judicial discretion of the Court hearing the bail application. However, as stated above, when the bail application is under Section 437, Cr.P.C. ordinarily the Magistrate should himself decide the bail application the same day, and if he decides in a rare and exceptional case not to decide it on the same day, he must record his reasons in writing. As regards the application under Section 439, Cr.P.C. it is in the discretion of the learned Sessions Judge considering the facts and circumstances whether to decide the bail application the same day or not, and it is also in his discretion to grant interim bail the same day subject to the final decision on the bail application later.

8. In the light of the aforesaid observations of the Apex Court in Lal Kamlendra Pratap Singh v. State of U.P. and the observations of the Full Bench of this Court in Amarawati it is provided that if a surrender application is moved before the competent Magistrate within 3 weeks, a date may be fixed for appearance of the petitioner in about a week thereafter. It is expected that after the petitioner applies for bail before the Magistrate concerned, the police officer concerned will refrain from taking him in custody without orders of the Magistrate. In the mea