Court No. - 46
Case :- CRIMINAL MISC. WRIT PETITION No. - 5282 of 2019 Petitioner :- Anil Kumar And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shashi Kumar Mishra Counsel for Respondent :- G.A.
Hon'ble Naheed Ara Moonis,J. Hon'ble Virendra Kumar Srivastava,J.
Heard learned counsel for the petitioners and learned AGA for the State.
By means of the present writ petition, the petitioners have invoked extraordinary jurisdiction of this Court with a prayer to quash the first information report dated 22.1.2019 registered as Case Crime No. 0018 of 2019, under Sections 420 and 406 I.P.C., police station Aliganj, District Etah. It has been submitted by the learned counsel for the petitioners that the first information report has been lodged by the respondent no. 3 against the petitioners with the allegations that the petitioners along with other persons have embezzled money from the bank on the basis of fake Aadhaar Card with the help of biometric devices. The petitioners are being unnecessarily harassed by the police on the basis of the first information report. If the offence alleged to have been committed by the petitioners be taken in entirety and charges are found to be proved, the petitioners cannot be awarded sentence of more than 7 years. In this view, the arrest of the petitioners 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 petitioners. The innocence of the petitioners 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 petitioners that they 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 petitioners is to be effectuated in the aforesaid case in which they are 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 Arnesh 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) Cr.P.C. has been filed, the petitioners shall not be entitled to any benefit of this order.
The writ petition stands disposed of.
Order Date :- 26.2.2019 Shahnawaz