Ambrish Patel and 3 Others v. State of U.P. and 2 Others

Court No. - 67 Case :- CRIMINAL MISC. WRIT PETITION No. - 17167 of 2023 Petitioner :- Ambrish Patel And 3 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Deepak Kumar Tripathi Counsel for Respondent :- G.A.,Atul Kumar Hon'ble Rahul Chaturvedi,J. Hon'ble Mohd. Azhar Husain Idrisi,J.

¶1Heard Sri Deepak Kumar Tripathi, learned counsel for petitioners, Sri Deepak Kumar Tripathi, learned counsel for opposite party no. 3 and learned A.G.A. for the State. Perused the record.

¶2By means of the present writ petition under Article 226 of the Constitution of India, the petitioners are assailing the legality and validity of FIR dated 16.8.2022 registered as Case Crime No. 278 of 2022, under Sections 420, 120-B IPC, Police Station Sant Kabir Nagar.

¶3Learned counsel for the petitioners submits that the allegations made against the petitioners in the F.I.R. are with malafide intention and after exaggerating the incident. The petitioners' counsel has contended that all the offences levelled against the petitioners is punishable up to 7 years or less than 7 years, but the police is hotly chasing the petitioner. Learned counsel for petitioners has relied upon in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 whereby the Hon'ble Apex court has laid down guidelines with regard to arrest of a person, which are being reproduced herein below : "Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction: All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 Cr.P.C.; All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii); The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention; The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing; Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction. Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine."

¶4In the recent judgment of Md. Asfak Alam vs. The State of Jharkhand and another passed in Criminal Appeal No.2207 of 2023 decided on 31.7.2023, the Hon'ble Apex Court has reiterated the guidelines given in the case of Arnesh Kumar (supra).

¶5Taking into account the totality of the facts and circumstances of the case and the in the light of the ratio laid down by Hon'ble Apex Court in the cases of Arnesh Kumar and Md. Asfak Alam (supra), the freedom of the petitioners is protected, provided if the I.O. of the case gives notice to them as provided under Sections 41 and 41(A) of Cr.P.C. and summon the petitioners in this case, petitioners are obliged to render their fullest cooperation in the investigation.

¶6It is made clear that if some credible material is brought on record during investigation against the petitioners, then only the I.O. of the case after recording its reason may affect the arrest of the petitioners, strictly adhering to the guidelines provided in aforementioned cases of Hon'ble Supreme Court. It is also directed that the I.O. of the case shall gear up the investigation and conclude the same preferably within a period of 60 days from today and submit its report u/s 173(2) Cr.P.C. in the court of concerned Magistrate.

¶7With the aforesaid observations, the instant writ petition stands disposed off. Order Date :- 2.11.2023 M. Tarik High Court of Judicature at Allahabad