Court No. - 44
Case :- CRIMINAL MISC. WRIT PETITION No. - 7996 of 2021 Petitioner :- Pawan Gupta And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Siddarth Jaiswal Counsel for Respondent :- G.A.
Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Mrs. Sadhna Rani (Thakur),J.
By means of the present writ petition, the petitioners herein seek quashing of the first information report dated 23.07.2021 registered as Case Crime No.461 of 2021, under Sections 420, 406, 504, 506 IPC, P.S.- Kanth, District- Shahjahanpur.
The petitioner No.1 is a sole proprietor of M/s Nandani Sales Agency, Gwalior and petitioner No.2 is broker who helps in dealing in sale and purchase of the product by the petitioner No.1. It is stated that the respondent No.4/complainant who is Manager of K.C. Flour Mills, Shahjahanpur had made false allegations of non payment of manufactured products sold to the petitioner No.1 on false and concocted story.
The contention is that the statement in the first information report that the petitioner had not paid dues of approximately ten lacs and odd to the complainant is incorrect. The copies of the bank statement of petitioner No.1 firm has been appended as Annexure No.'2' to the writ petition to assert that the entire payment has been made to the complainant in the year between 2019 to 2021.
Having noted that the commercial transaction between the petitioner No.1 and the complainant/respondent No.4 is not disputed and the question as to whether the payment had been made by the petitioner No.1 through bank transaction can be ascertained during the course of investigation.
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.
Nothing has been indicated in the writ petition which would indicate the stage of the investigation.
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 petitioners are under an apprehension that they 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 petitioners are to be effectuated and the offence, in which they are 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 present writ petition is disposed of.
Order Date :- 30.9.2021 Himanshu