Court No. - 47

Case :- CRIMINAL MISC. WRIT PETITION No. - 10468 of 2022

Petitioner :- Sunil Kumar

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Neeraj Kumar Pandey

Counsel for Respondent :- G.A.

Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Umesh Chandra Sharma,J.

Heard Shri N.K. Pandey, learned counsel for the petitioner

and learned A.G.A. for the State respondents.

Present writ petition has been preferred for quashing the

FIR dated 16.07.2022 being Case Crime No.80 of 2022

under Sections 2, 9, 39, 44, 48, 49B, 51 of Wild Life

(Protection) Act, and Sections 26, 52, 69 of Indian Forest

Act, at Police Station Chowk, District Varanasi and for a

direction to respondents not to arrest the petitioner

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 41-A Cr.P.C. The petitioner has 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 judgment 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 :- 8.8.2022

RKP

Digitally signed by RAKESH KUMAR

PATEL

Date: 2022.08.08 17:21:40 IST

Reason:

Location: High Court of Judicature at

Allahabad