HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. – 9
Case :- MISC. BENCH No. – 31081 of 2019
Petitioner :- Shadab Ahmad Ors.
Respondent :- State Of U.P. Thru. Secy. Home Lko. Ors.
Counsel for Petitioner :- Surya Bux Singh,Viplava Singh
Counsel for Respondent :- G.A.
Hon’ble Shabihul Hasnain,J.
Hon’ble Virendra Kumar-II,J.
1. The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report No.0109/2019, dated 17.07.2019, under Sections- 498A, 323, 504 and 506 SectionI.P.C. and Section 3/Section4 Dowry Prohibition Act, Police Station Mahila Kotwali, District Hardoi.
2. The Court had summoned the opposite party no.4 for her consent for mediation, as proposed by the petitioners. However, despite notice the opposite party no.4 has not come to this Court, meaning thereby that she is not giving her consent for mediation.
3. We have heard learned counsel for the petitioners and learned counsel for the State and have gone through the contents of the impugned First Information Report.
4. Learned counsel appearing for the State states 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.
5. We 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), SectionCr.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)
6. Considering 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 :- 28.11.2019