Allahabad High Court
Dr Kartikeya Sharma vs State Of Up And 2 Others on 8 April, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:60469-DB Court No. - 46 Case :- CRIMINAL MISC. WRIT PETITION No. - 782 of 2024 Petitioner :- Dr Kartikeya Sharma Respondent :- State Of Up And 2 Others Counsel for Petitioner :- Pramod Kumar Dwivedi,Surya Bhan Singh Counsel for Respondent :- G.A.,Imran Ullah,Shashwat Shukla Hon'ble Siddharth,J.
Hon'ble Surendra Singh-I,J.
1. Heard Sri Surya Bhan Singh, learned counsel for the petitioner, learned AGA for the State respondents and Sri Imran Ullah, learned counsel for the respondent no. 3.
2. The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 30.11.2023, registered as Case Crime No. 0465 of 2023, under Section- 420 IPC, Police Station- Mahua Khera, District Aligarh and for a direction to the respondents not to arrest the petitioner in pursuance of impugned First Information Report.
3. There is allegation in the FIR that the petitioner, who is admittedly biological father of the child, took the child from the School, even though he has filed a suit under the Guardians and Wards Act for the custody of child which was pending.
4. Learned counsel for the petitioner has relied upon the judgment of Bombay High Court in the case of Shri Ashish Vs. State of Maharashtra and another (Criminal Application No. 552 of 2023, decided on 06.10.2023).
5. Learned counsel for the respondent no. 3 informs that after the arrest of the petitioner, the child was recovered from father and handed over to his biological mother. The proceedings are pending before the Family Court at Aligarh under the Guardians and Wards Act on the order of the Hon'ble Supreme Court for custody of child.
6. This Court finds fact in the case of Shri Ashish (supra) it was the father who forcibly took away his minor son from custody of his wife and implication under Section 361 IPC was made. The Court held the father of child too his natural guardian and quashed the FIR. This case is different since child was taken from School by way of cheating.
7. The Supreme Court in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 has laid down guidelines for arresting a person, which are being reproduced hereinbelow:-
"Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:
All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 Cr.P.C.;
All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);
The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;
The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, he shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine."
8. In the recent judgment in the case of MD. Asfak Alam Vs. The State of Jharkhand and another passed in Criminal Appeal No. (S) 2207 of 2023 decided on 31.07.2023, the Apex Court has reiterated the guidelines given in the case of Arnesh Kumar (supra).
9. Taking into account the totality of the fact and circumstances of the case and the in the light of the ratio laid down in the case of Arnesh Kumar (supra) and reiterated in the case of MD. Asfak Alam (supra), the freedom of the petitioner is protected, provided if the I.O. of the case gives notice to him as provided under Sections 41 and 41(A) of Cr.P.C. and summon the petitioner in this case, petitioner is obliged to render his fullest cooperation in the investigation.
10. It is made clear that if some credible material is brought on record during investigation against the petitioner, then only the I.O. of the case after recording its reason may affect the arrest of the petitioner, strictly adhering to the guidelines provided in the case of Arnesh Kumar (supra) and MD. Asfak Alam (supra). It is also directed that the I.O. of the case shall gear up the investigation and conclude the same preferably within a period of 60 days from today and submit its report u/s 173(2) Cr.P.C. in the court of concerned Magistrate.
11. With the aforesaid observations, the instant writ petition stands disposed off.
Order Date :- 8.4.2024/Pratima (Surendra Singh-I,J.) (Siddharth,J.)