Neutral Citation No. - 2023:AHC-LKO:38793-DB

Court No. - 10

Case :- CRIMINAL MISC. WRIT PETITION No. - 4151 of 2023

Petitioner :- Ashutosh Pandey And Another

Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Others

Counsel for Petitioner :- Ashutosh Kumar Singh,Rakesh Kumar

Singh,Sudhir Kumar Mishra

Counsel for Respondent :- G.A.

Hon'ble Mrs. Sangeeta Chandra,J.

Hon'ble Narendra Kumar Johari,J.

Heard learned counsel for the petitioner and

learned AGA who appears on behalf of the State-

respondents.

Present writ petition has been preferred for

quashing the FIR dated 22.05.2023 being Case

Crime No.0116 of 2023, under Sections - 354, 323,

504 IPC and 9/10 POCSO Act, registered at police

station - Ahirauli, Distt. Ambedkar Nagar and for a

direction to respondents not to arrest the

petitioner pursuant to the aforesaid FIR.

The submission is that all alleged offences are

punishable with imprisonment up to 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

petitioner 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 recognized 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 judgement 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 :- 30.5.2023

mks

Digitally signed by :-

MANISH SAXENA

High Court of Judicature at Allahabad,

Lucknow Bench