HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 46
Case :- CRIMINAL MISC. WRIT PETITION No. – 26148 of 2019
Petitioner :- Mohd.Husain @ Shanu
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Gaurav Gupta
Counsel for Respondent :- G.A.
Hon’ble Naheed Ara Moonis,J.
Hon’ble Dinesh Pathak,J.
Heard learned counsel for the petitioner and learned AGA for the State.
By means of the present writ petition, the petitioner has invoked extraordinary jurisdiction of this Court with a prayer to quash the first information report dated 9.9.2019 registered as Case Crime No. 472 of 2019, under Section 354 I.P.C. and 67 of SectionInformation Technology (Amendment) Act, 2008, police station Kotwali, district Shahjahanpur.
It has been submitted by the learned counsel for the petitioner that the first information report has been lodged by the respondent no. 3 against the petitioner with the allegations that the petitioner has sent obscene photographs on the mobile of the daughter of the complainant for defaming her image in the society. The petitioner has also showed his hardihood by extending threat of dire consequence. The petitioner is being unnecessarily harassed by the police on the basis of the first information report. If the offence alleged to have been committed by the petitioner be taken in entirety and charges are found to be proved, the petitioner cannot be awarded sentence of more than 7 years. In this view, the arrest of the petitioner should not be effectuated by the police personnel.
Per contra the learned A.G.A. contended that the allegations contained in the first information report cannot be nipped in the bud. There are sufficient material showing the complicity of the petitioner. The innocence of the petitioner cannot be adjudged at this stage.
Considering the submission advanced by the learned counsel for the petitioners we do not find any cogent or convincing reason to quash the first information report, hence the prayer for quashing the first information report is refused.
The fact of the matter is that till date arrest has not been effectuated and this is mere apprehension of the petitioner that he would be arrested in breach of provisions as contained under Section 41 (1) (b) read with Section 41-A of the Cr.P.C. Once there is statutory provision provided for then it is always expected that the said provisions would be adhered to and in case there is any violation of the same, complaint can also be made before the Magistrate concerned to remedy the situation.
In view of the above, it is hereby directed that in case arrest of petitioner is to be effectuated in the aforesaid case in which he is wanted, the concerned police personnel should deal with the matter in compliance of the provisions as contained under Section 41 (1) (b) read with Section 41-A of the Cr.P.C. as per direction of Hon’ble Apex Court in the case of SectionArnesh Kumar vs. State of Bihar and another, 2014 Law Suit (SC) 518.
It is further provided that if the investigation in this matter has been completed and police report under Section 173 (2) SectionCr.P.C. has been filed, the petitioner shall not be entitled to any benefit of this order.
The writ petition stands disposed of.
Order Date :- 20.12.2019