Allahabad High Court
Dr. Onkar Rai vs State Of U.P. And 2 Others on 6 August, 2022
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 47 Case :- CRIMINAL MISC. WRIT PETITION No. - 9600 of 2022 Petitioner :- Dr. Onkar Rai Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Vivek Singh Shrinet Counsel for Respondent :- G.A. Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Umesh Chandra Sharma,J.
Heard learned counsel for the petitioner and learned AGA for the State-respondents.
Present writ petition has been preferred for quashing the impugned FIR dated 5.5.2022 registered as Case Crime No. 0307 of 2022, under Sections 304A, 504, 506, 166B IPC, P.S. Cantt, Distt. Gorakhpur and for a direction to respondents not to arrest the petitioner pursuant to aforesaid FIR.
Learned counsel for the petitioner vehemently contended that the petitioner is a well known Doctor in the field of Medicine practicing since 2008 and there was never any allegation of negligence on his part. Allegations in the impugned FIR are totally false and baseless. The real fact and complaint of the petitioner was already explained to the concerned police station by letter dated 6.5.2022, which has been brought on record as Annexure No. 2 to the writ petition. In support his submissions, he has placed reliance upon orders of The Apex Court in Jacob Mathew v. State of Punjab 2005 LawSuit(SC) 1045 and Dr. Suresh Gupta vs. Govt. of N.C.T. of Delhi & Anr. (Appeal (Crl.) No. 778 of 2004). Further submission is that all alleged offences are punishable with imprisonment of seven years, therefore, the police authorities are bound to follow the procedure laid down under Section 41-A Cr.P.C. He has placed reliance on the judgement of this Court dated 28.01.2021 in Criminal Misc. Writ Petition No.17732 of 2020 (Vimal Kumar and 3 others vs. State of UP and 3 others) in which guidelines have been framed following the judgement of the Apex Court in different cases, relating to offences providing punishment of seven years or less.
The investigating agencies and their officers are duty bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action. The principle that bail is the rule and jail is the exception has been well recognised through the repetitive pronouncements of the Apex Court, which is on the touchstone of Article 21 of the Constitution of India (Ref. Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1. This provision mandates the police officer to record his reasons in writing while making the arrest. Thus, a police officer is duty-bound to record the reasons for arrest in writing. The consequence of non-compliance with Section 41 shall certainly inure to the benefit of the person suspected of the offence. On the scope and objective of Section 41 and 41A, it is obvious that they are facets of Article 21 of the Constitution. The same has been elaborately dealt with in paragraphs 7.1 to 12 of the judgment in Arnesh Kumar's case (supra).
We have gone through the impugned first information report and we are of the opinion that the guidelines framed by this Court in the above noted judgement are equally applicable to the facts of the instant case.
Accordingly, the instant petition also stands disposed of in view of the judgments cited above Order Date :- 6.8.2022 A.K.Srivastava