Court No. - 46
Case :- CRIMINAL MISC. WRIT PETITION No. - 5099 of 2019 Petitioner :- Mahboob Khan And 6 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shabana Nizam 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 22.12.2018 registered as Case Crime No. 0666 of 2018, under Sections 498- A, 323, 504 and 506 I.P.C. and Section 3/4 D.P. Act, police station Mahila Thana, District Prayagraj.
It has been submitted by the learned counsel for the petitioners that the petitioner no. 1 is the husband of the respondent no. 3 and the other petitioners are his family members. The first information report lodged by the respondent no. 3 with absolutely false and vague allegations that she was humiliated and ill treated on account of non full fulfilment of demand of dowry and have been unnecessarily harassed at the behest of the petitioners. It is further submitted by the learned counsel for the petitioners that the entire prosecution story is the outcome of personal grudge of the respondent no. 3. There is nothing on record to substantiate the allegation made against the petitioners rather it reflects the manoeuvring on the part of the respondent no. 3. 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 :- 25.2.2019 Shahnawaz