Court No. - 46
Case :- CRIMINAL MISC. WRIT PETITION No. - 26036 of 2019 Petitioner :- Vikas Tyagi Pisar And 3 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Pankaj Kumar Tyagi Counsel for Respondent :- G.A.
Hon'ble Naheed Ara Moonis,J. Hon'ble Narendra Kumar Johari,J.
Heard learned counsel for the petitioners, Sri Dhiraj Kumar Pandey, learned counsel for the complainant and the 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 8.12.2019 registered as Case Crime No. 535 of 2019, under Sections 420, 406 and 120-B I.P.C., police station Nakur, district Saharanpur.
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 have duped the complainant by twisting Rs. 19 lacs and odd on the pretext that they will start joint business of rice and tea. The petitioners have not started any business and when the complainant asked for the return of the money, the petitioners have usurped the money and have out rightly refused to return the same.
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 for the complainant has contended that the allegations contained in the first information report cannot be nipped in the bud. The petitioners have extracted the money for starting joint business of export of rice and tea to abroad, therefore, there are sufficient materials 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 :- 19.12.2019 Shahnawaz