Court No. - 47

Case :- CRIMINAL MISC. WRIT PETITION No. - 12711 of 2022

Petitioner :- Mustafa Raza Khan And 3 Others

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Ved Mani Sharma

Counsel for Respondent :- G.A.

Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Gajendra Kumar,J.

Heard learned counsel for the petitioners and learned AGA.

Present writ petition has been preferred for quashing the FIR

dated 5.7.2022 being Case Crime No.348 of 2022 under Section

354, 354Kha, 354 (Gha), 452, 323, 504, 506 IPC and 7/8

POCSO Act, P.S. Kotwali, Distt. Pilibhit and for a direction to

respondents not to arrest the petitioners 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 petitioners have 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 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 :- 9.9.2022

SP/

Digitally signed by SURYA

PRAKASH

Date: 2022.09.09 16:38:16 IST

Reason:

Location: High Court of Judicature at

Allahabad