Allahabad High Court
Mohammad Masood Raza vs Santosh Kumar Singh,Station House ... on 2 August, 2019
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 8 Case :- CONTEMPT No. - 2837 of 2018 Applicant :- Mohammad Masood Raza Opposite Party :- Santosh Kumar Singh,Station House Officer,Balrampur & Anr. Counsel for Applicant :- Anurag Shukla Hon'ble Dinesh Kumar Singh,J.
The present contempt petition has been filed for alleged non-compliance/willful disobedience of the judgement and order dated 30.5.2018 passed by this Court in Writ Petition No.16577 (MB) of 2018.
The petitioner in person, who is a registered Advocate, is an accused in a case registered at FIR bearing Case Crime No.119 of 2018, under Sections 323, 504, 506, 452 IPC, Police Station Utraula, District Balrampur. The petitioner approached this Court in a writ petition for quashing of the aforesaid FIR. This Court disposed of the aforesaid writ petition in following terms :-
"Learned counsel appearing for the State states that the offence(s) allegedly committed entail a sentence up to seven years. In such circumstances, the investigating officer shall ensure compliance of provisions of Section 41 and Section 41-A of the Code of Criminal Procedure as provided by Hon'ble Supreme Court of India in Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273.
We have considered the stand of learned counsel for the State. In Arnesh Kumar's case (supra) the following(relevant portion) has been held:-
"9. Another provision i.e. Section 41A Cr.P.C aimed to avoid unnecessary arrest or threat of arrest looming large on accused requires to be vitalised. Section 41A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant in the context reads as follows:
"41A. Notice of appearance before police officer.-
(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice."
The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid."
(emphasized by us) Considering the stand taken by learned counsel for the State in context of judgment rendered by the Hon'ble Supreme Court of India in Arnesh Kumar's case (supra), relevant portion from which has been extracted above, learned counsel for the petitioner(s) states that let this petition be disposed of as not pressed.
Petition is disposed of as not pressed."
The allegations made in the affidavit filed in support of the contempt petition are that the petitioner is an Advocate and public spirited person and raises the issues of the common man and their problems. The petitioner completed his LL.B. in the year 2016. He got enrolled with the Uttar Pradesh Bar council in 2017. He has passed the Bar Council examination in October, 2018, but the certificate of practice is yet to be issued by the Uttar Pradesh Bar Council. A person, who has not been issued certificate of practice till date, has filed petitions in his name and he is representing the other persons. It is further alleged in the present contempt petition that the petitioner was not issued notice as it is mandatory under Section 41A Cr.P.C. before submitting the charge sheet by the police in the aforesaid case and, therefore, there is willful disobedience of the judgement and order passed by this Court.
It is admitted fact that the petitioner has not been arrested before filing the charge sheet. Once the charge sheet has been filed, even if it is assumed that no notice was served, it cannot be said that the judgement and order dated 30.5.2018 passed by this Court has been violated. It is open to the petitioner to take appropriate proceedings against the charge sheet before the competent Court/authority. But this contempt petition is wholly misconceived and thus, the same is dismissed.
Contempt notice issued, stands discharged.
Order Date :- 2.8.2019 Rao/-