Rajasthan High Court - Jaipur
Mohinuddin Qureshi @ Munna Khan vs State Of Raj And Ors on 3 December, 2019
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Writ Petition No. 441/2017
Mohinuddin Qureshi @ Munna Khan S/o Ramjan Khan, R/o
House No.14, Kidwai Nagar, Police Station Jyoti Nagar, Jaipur,
Raj.
----Petitioner
Versus
1. The State Of Rajasthan Through Secretary Of Home
Affairs, Secretariat, Jaipur.
2. Commissioner Of Police, Jaipur Metropolitan City, Jaipur,
Raj.
3. Station House Officer, Police Station Jyoti Nagar, Jaipur,
Raj.
----Respondents
For Petitioner(s) : Mr. Anil Kumar Upman with Mr. F.C. Saini Mr. Mohit Sharma Mr. Arpit Dotasra For Respondent(s) : Mr. Arvind Bhadu, PP Mr. Suresh Kumar SI, SP Office Jaipur HON'BLE MR. JUSTICE PANKAJ BHANDARI Order 03/12/2019
1. Petitioner has preferred this criminal writ petition with a prayer for seeking to transfer the matter for further investigation in FIR No.217/2016 registered at Police Station Jyoti Nagar, District Jaipur to other investigating agency like CBI. The other prayer is for quashing of FIR.
2. It is contended by counsel for the petitioner that warrants issued under Section 37 of the Police Act were obtained by the police against the accused-petitioner. Petitioner challenged the same and vide order dated 03.06.2016 Additional Chief (Downloaded on 10/12/2019 at 10:47:11 PM) (2 of 5) [CRLW-441/2017] Metropolitan Magistrate No.8, Jaipur Metropolitan, cancelled the warrants under Section 37 of the Police Act. Police was directed to comply with Section 41 of Cr.P.C. It is also contended that no notices under Section 41-A of Cr.P.C. was served upon the petitioner and without obtaining any warrants of arrest at 9.35 pm on 27.06.2016, two persons entered as courier boys into the house of petitioner followed by police constables who forcefully took away the petitioner in police jeep. Son of the petitioner informed the police personnel that warrants under Section 37 of the Police Act have been cancelled by the court but no heed was paid to his request.
3. It is contended by counsel for the petitioner that a false case has been registered by the police that petitioner and his sons gave beating to the police and created hindrance in performance of their duties. It is also contended that the entire event was captured in the CCTV installed at the residence of the petitioner, the same was played before the Court from which it is revealed that petitioner and his sons did not attack the police personnel rather petitioner was forcibly taken away in police jeep.
4. Investigating Officer Suresh Kumar, SI, SP Office, Jaipur, who had made the arrest was directed to produce Rojnamacha Register. In the Rojnamacha Register there is no entry after 03.06.2016 with regard to any attempt made by the police for serving notices under Section 41-A of Cr.P.C.
5. It is contended by counsel for the petitioner that the Apex Court in "Rini Johar & Anr. Vs State of Madhya Pradesh & Ors., (2016) 11 SCC, 703" relying upon D.K. Basu vs State of West Bengal,(1997) 1 SCC 416 has issued guidelines that are to be followed by the police in cases of arrest. Apex Court has (Downloaded on 10/12/2019 at 10:47:11 PM) (3 of 5) [CRLW-441/2017] observed that arrest in violation of due procedure, seriously jeoparadise the dignity of arrested person.
6. It is informed by the counsel for the petitioner that the matter went up to the Human Rights Commission and Human Rights Commission has awarded Rs.25,000/- to the petitioner for custodial violence which took place with the petitioner while he was in custody. Human Rights Commission has further directed that inquiry be initiated against the police personnel.
7. Counsel for the petitioner has also placed reliance on "Ramesh Kumari vs State(NCT of Delhi) & Ors., (2006) 2 SCC 677" wherein in the interest of justice Supreme Court handed over the matter to the CBI for investigation.
8. Learned Public Prosecutor has opposed the prayer for referring the matter to CBI. It is contended that matter has been investigated by CID(CB) and they have come to the conclusion that offence is made out.
9. I have given my thoughtful consideration to the arguments advanced before me. Admittedly, warrants of arrest under Section 37 of the Police Act was cancelled on 03.06.2016 and police was directed to comply with provisions of Section 41 of Cr.P.C. Police has not complied with provisions of Section 41 of Cr.P.C. and without obtaining any warrants of arrest at 9.35 pm, in civil dress posing as courier boys entered into the house of petitioner, thus, flouting guidelines given in D.K. Basu vs State(supra). The arrest memo does not bear signatures of any witness of the locality or relative of the petitioner. From the CCTV footage shown before the Court, it is revealed that neither the petitioner nor his son inflicted any injury to the police personnel. Petitioner was hastily pushed in the jeep and there is no footage that petitioner tried to escape (Downloaded on 10/12/2019 at 10:47:11 PM) (4 of 5) [CRLW-441/2017] from custody or his sons tried to facilitate his escape. No injury whatsoever was caused by the petitioner or his sons to the police personnel.
10. CID(CB) which happens to be topmost Investigating Agency of the State has also tried to shield the police personnel and has over-looked the CCTV footage as also the fact that police personnel exceeded their powers in making arrest at 9.35 pm without obtaining warrant of arrest and without serving the notices under Section 41-A of Cr.P.C.
11. The matter pertains to liberty of a citizen who was arrested without following the due process of law after warrants under Section 37 of the Police Act was cancelled by the court and to cover up their mis-deeds, police has registered a case against the petitioner and his sons. Hence, the matter requires to be referred to CBI for thorough investigation.
12. Continuation of proceedings in a case where police personnel have in utter disregard to the law laid down by the Apex Court and in utter disregard to the orders passed by the Court below, without serving notice under Section 41-A of Cr.P.C. has entered into house of the petitioner at 9.35 pm to arrest him in civil dress posing as courier boys, which is in violation of the judgment of the Apex Court in Rini Johar & Anr. Vs State of Madhya Pradesh & Ors.(supra). Continuation of FIR would tantamount to abuse of process of law as admittedly petitioner and his son did not inflict any injuries to the police personnel, hence, FIR No.217/2016 is quashed.
13. Complainant is free to lodge complaint before CBI. Since allegation is against police personnel of lodging false FIR, this (Downloaded on 10/12/2019 at 10:47:11 PM) (5 of 5) [CRLW-441/2017] court directs the CBI to initiate inquiry if a complaint is lodged before them within a period of 30 days.
14. Criminal writ petition is accordingly, allowed.
15. Stay application stands disposed.
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