Mohd. Waseem Raza and Others v. State of U.P. Thru. Prin. Secy. Home Govt. Civil Sectt. Lko. and Others

Court No. - 9 Case :- CRIMINAL MISC. WRIT PETITION No. - 4352 of 2023 Petitioner :- Mohd. Waseem Raza And Others Respondent :- State Of U.P. Thru. Prin. Secy. Home Govt. Civil Sectt. Lko. And Others Counsel for Petitioner :- Saurabh Kumar Counsel for Respondent :- G.A. Hon'ble Manish Mathur,J. Hon'ble Umesh Chandra Sharma,J.

¶1Heard learned counsel for petitioners and learned A.G.A. for opposite party nos.1, 2 and 3.

¶2In view of order being proposed to be passed, notice to opposite party no.4 stands dispensed with.

¶3The petition seeks issuance of a writ in the nature of certiorari to quash F.I.R. dated 24.03.2023 bearing Case Crime No.91 of 2023, under Sections 323, 504, 506, 452, 354 I.P.C., Police Station Kurwar, District Sultanpur.

¶4Learned counsel appearing for the State submits that the offence(s) allegedly committed entail a sentence up to seven years. In such circumstances, the investigating officer shall ensure compliance of provisions of Section 41 and Section 41-A of the Code of Criminal Procedure as provided by Hon'ble Supreme Court of India in Arnesh Kumar Vs. State of Bihar,

(2014) 8 SCC 273.

¶5We have considered the stand of learned counsel for the State. In Arnesh Kumar's case(supra) the following(relevant portion) has been held:-"9. Another provision i.e. Section 41A Cr.PC aimed to avoid unnecessary arrest or threat of arrest looming large on accused requires to be vitalised. Section 41A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009), which is relevant in the context reads as follows: "41A. Notice of appearance before police officer.-

(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice." "The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid." (emphasized by us)

¶6Considering the stand taken by learned counsel for the State in context of judgment rendered by the Hon'ble Supreme Court of India in Arnesh Kumar's case (supra), relevant portion from which has been extracted above, the petition is disposed of. Order Date :- 2.6.2023 Saurabh (Umesh Chandra Sharma,J.) (Manish Mathur,J.) High Court of Judicature at Allahabad, Lucknow Bench