Allahabad High Court
Shobharam Maurya vs State Of U.P. Thru. Prin. Secy. Home ... on 2 November, 2022
Bench: Rajesh Singh Chauhan, Vivek Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ? Court No. - 9 Case :- CRIMINAL MISC. WRIT PETITION No. - 7618 of 2022 Petitioner :- Shobharam Maurya Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko.And Others Counsel for Petitioner :- Kamal Kishor Tiwari Counsel for Respondent :- G.A. Hon'ble Rajesh Singh Chauhan,J.
Hon'ble Vivek Kumar Singh,J.
Heard learned counsel for the petitioners and learned A.G.A. for the State.
By means of this petition, petitioner has sought quashing of the First Information Report dated 02.09.2022 bearing Case Crime No.0184 of 2022, under Section135-1(a) Indian Electricity Act (Amendment) 2003. registered at Police Station-Ante Power Theft, District Shrawasti.
This Court on 14.10.2022 passed the following order:-
"Heard.
The petitioner seeks issuance of a writ in the nature of certiorari quashing First Information Report dated 02.09.2022 bearing Case Crime No. 0184 of 2022, under Section 135-1(a) Indian Electricity Act (Amendment), 2003, registered at Police Station - Anti Power Theft, District - Shrawasti.
The contention of the petitioner's Counsel is that due to drafting error, it has been incorrectly mentioned in Paragraph 6 that the petitioner's electricity connection has been discontinued, in fact, the case of the petitioner is that his electricity connection bearing no. 761500225691 with a sanctioned load of 1 KW has never been disconnected and he is regularly paying his electricity bill. He invites the attention of this Court to Annexure - 4. He says that the subject matter of the FIR is some electricity connection pertaining to commercial premises with which the petitioner has no concern. The petitioner is aged 80 years old and he does not have any shop in the aforesaid commercial premises but his name has been falsely mentioned in the FIR.
Let learned A.G.A. seek instructions in the matter.
List/Put up this case on 02.11.2022 as fresh.
In view of the above submissions, until further orders, the petitioner shall not be arrested on basis of the impugned First Information Report dated 02.09.2022 bearing Case Crime No. 0184 of 2022, under Section 135-1(a) Indian Electricity Act (Amendment), 2003, registered at Police Station - Anti Power Theft, District - Shrawasti unless there is sufficient and credible evidence available against the petitioner indicating the commission of criminal offence as alleged in the impugned FIR. The Investigating Officer shall continue the investigation and take it to its logical conclusion. The petitioner shall cooperate in the investigation and get his statement recorded before the Investigating Officer as and when called. If he does not do so then it can be made a ground for seeking a vacation of this interim order."
By means of the aforesaid order, the liberty of the petitioner has been protected.
Learned counsel for the petitioner has submitted that the offence allegedly committed entails a fine and a maximum imprisonment of seven years and as such the Investigating Officer be directed to take recourse to the procedure provided under Section 41-A of the Code of Criminal Procedure 1973 ("Code"). In support of his contention. He has placed reliance upon the case of "Arnesh Kumar v. State of Bihar" reported in (2014) 8 SCC 273.
In Arnesh Kumar (supra), the Apex Court has held that the police officers should not automatically arrest the accused when the offence with which the accused is charged provides for a maximum punishment of imprisonment which may extend to seven years and fine. It was held that in such cases, the power of arrest, should be exercised only when the conditions enumerated in Section 41 of the Code are satisfied. The Court then took into account the provisions of Section 41-A of the Code and held as under:
"The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obligates 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 officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied with and shall be subject to the same scrutiny by the Magistrate as aforesaid."
(emphasis supplied) In view of the prayer made by the counsel for the petitioner, this writ petition is finally disposed of with a direction to the investigating officer to take action only after complying with the provisions of Section 41-A of the Act, in case the offences under investigation entails a fine and a maximum imprisonment of seven years.
Order Date :- 2.11.2022 Arti/-
[Vivek Kumar Singh, J.] [Rajesh Singh Chauhan, J.]