Court No. - 10

Case :- CRIMINAL MISC. WRIT PETITION No. - 2034 of

2023

Petitioner :- Samrendra Verma Alias Samrendra Kumar

Verma And Another

Respondent :- State Of U.P. Thru Prin Secy Home Civil

Sectt Lko. And Others

Counsel for Petitioner :- Narvind Kumar Singh

Counsel for Respondent :- G.A.,Ajeet Kumar

Hon'ble Mrs. Sangeeta Chandra,J.

Hon'ble Narendra Kumar Johari,J.

(1) Heard learned counsel for the petitioners and learned

A.G.A. who appears on behalf of the State-respondents.

(2) Present writ petition has been preferred for quashing

the FIR dated 04.03.2023 bearing FIR No.0069 of 2023,

under Sections 354, 504, 506 IPC & Section 7/8

Protection of Children from Sexual Offences Act, 2012,

P.S. Qaiserganj, District Bahraich, and for a direction to

respondents not to arrest the petitioners pursuant to

aforesaid FIR.

(3) 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.

(4) 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).

(5) 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.

(6) Accordingly, the instant petition also stands disposed

of in view of the judgments cited above.

Order Date :- 13.4.2023

N.PAL

Digitally signed by :-

NARESH PAL

High Court of Judicature at Allahabad,

Lucknow Bench