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Waseem vs State Of U.P. And 2 Others on 28 February, 2020


?Court No. – 42

Case :- CRIMINAL MISC. WRIT PETITION No. – 3176 of 2020

Petitioner :- Waseem

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Afzal Ahmad Khan Durrani

Counsel for Respondent :- G.A.

Hon’ble Mrs. Sunita Agarwal,J.

Hon’ble Dinesh Pathak,J.

We have heard learned counsel for the petitioner and learned A.G.A.

This writ petition under Article 226 of the Constitution of India has been filed by the petitioner for quashing the impugned First Information Report dated 4.2.2020 registered as Case Crime No. 208 of 2020 under Section 406 I.P.C., Police Station Vijay Nagar, District Ghaziabad, as also for the direction to the opposite parties not to arrest him in pursuance of the impugned F.I.R.

It is contended that even if the charges relating to the alleged offence are found to be proved, sentence of more than seven years cannot be awarded and in view of this, technically arrest should not be effectuated by the police personnel.

Learned AGA opposed the petition.

We have gone through the allegations contained in the impugned F.I.R., which, prima facie, discloses commission of cognizable offence and as such, we are not inclined to interfere in the F.I.R.

The fact of the matter is that till date arrest has not been effectuated and the petitioner is under an apprehension that he would be arrested in breach of the provisions as contained in Section 41 (1) (b) read with Section 41-A of the Cr.P.C. Once the statute prescribes procedure it is always expected of the executing authority that they would adhere to the same. In case of any violation of the statutory procedure, complaint can also be made to the Magistrate concerned who may remedy the situation.

In view of the above, it is hereby directed that in the event arrest of petitioner is to be effectuated and the offence, in which he is wanted, would not entail sentence of more than 7 years then the concerned police personnel shall deal with the matter strictly in compliance of the provisions as contained in Section 41 (1) (b) read with Section 41-A of the Cr.P.C.

It is further provided that if the investigation in the matter has been completed and police report under Section 173(2) Cr.P.C. has been filed, the benefit of this order would not be extended and the concerned court shall deal with the matter in accordance with law.

Subject to the above, the writ petition is disposed of.

Order Date :- 28.2.2020/nd



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