Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 26324 of 2017 Petitioner :- Parvez Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Raees Ahamad Counsel for Respondent :- G.A.
Hon'ble Rajesh Dayal Khare,J. Hon'ble Mahboob Ali,J.
We have heard learned counsel for the petitioners and learned A.G.A.
This writ petition under Article 226 of the Constitution of India has been filed by the petitioners for quashing the impugned First Information Report dated 08.04.2017 registered as Case Crime No.090 of 2017, under Section 379, 411 IPC Section 4/21 Mines and Minerals (Regulation and Development) Act, 1957, Police Station Markundi, district Chitrakoot, so far as it relates to the petitioners and also for direction to the respondent no.3 not to arrest them in pursuance of the impugned F.I.R.
It is contended by learned counsel for the petitioner that under Mines and Mineral (Regulation and Development) Act 1957, only complaint can be filed and no F.I.R., can be lodged, therefore lodging of the F.I.R., is bad in law. It is further contended that if the charges in the said offence are found to be proved even then sentence of more than seven years cannot be awarded and in view of this, mechanically arrest should not be effectuated by the police personnel.
Learned A.G.A. opposed the petition.
We have gone through the allegations contained in the impugned F.I.R., which, prima facie, discloses commission of cognizable offence, 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 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 and the offence, in which he is wanted, will not entail sentence of more than 7 years then in that event 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.
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.
Accordingly, the writ petition stands disposed off.
Order Date :- 28.11.2017 S.Ali