WPCRL/28/2023 of BRAJESH PANDEY ALIAS BRAJESH KUMAR PANDEY Vs STATE OF UTTARAKHAND THROUGH SECRETARY HOME, CIVIL SECRETARIAT, DEHRADUN UTTARAKHAND

IN THE HIGH COURT OF UTTARAKHANDAT NAINITAL

Writ Petition (Criminal) No. 28 of 2023

Brajesh Pandey @ Brajesh Kumar Pandey

………...Petitioners

-Versus-

State of Uttarakhand & Others

….….…...Respondents

Present:

Mr. Yogesh Kumar Sharma, learned counsel for the petitioners.

Ms. Manisha Rana Singh, learned AGA for the State of Uttarakhand.

Date of Hearing and Judgment: 06.01.2023

Sri Sanjaya Kumar Mishra, J.

Upon hearing the learned counsel for the parties, the Court has passed the following judgment:-

By filing this writ application, the petitioners have

prayed for the following reliefs:-

“(1) Issue writ order or direction in the nature of certiorari quashing the impugned first information report i.e. FIR no. 0633, dated 14/10/2022 for the offenses punishable under section(s) 323, 498-A, 504, 506 of IPC and Section(s) 3 and 4 of Dowry Prohibition Act, at Police Station Kashipur, District Udham Singh Nagar (contained as Annexure P.1 to this writ petition).

(2) Issue writ order or direction in the nature mandamus commanding and directing respondent no. 2 not to arrest the petitioners in connection with the impugned first information report i.e. FIR no. 0633, dated 14/10/2022 for the offenses punishable under section(s) 323, 498-A, 504, 506 of IPC and Section(s) 3 and 4 of Dowry Prohibition Act, at Police Station Kashipur, District Udham Singh Nagar (contained as Annexure P.1 to this writ petition).

(3) Issue any or further writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

2. In course of hearing, learned counsel for the petitioners would submit that the entire family of the husband of respondent no.3 has been implicated in this case; only petitioner nos. 2, 5 and 6 are residing in the house where the alleged occurrence took place. Therefore, the learned counsel for the petitioners would further submit that this is case of the quashing of the FIR.

3. However, careful reading of the FIR reveals that, the respondent no. 3 has made allegations against all of them and that whether those allegations are correct or not can only be determined in trial and not in proceeding under Article 226 of the Constitution of India. In proceeding of Article 226 of Constitution of India this Court is not required to hold mini trial, therefore this Court finds that this is not fit case where notice can be issued.

4. However, the learned counsel for the petitioners would further submit that since none of the offences mentioned in the FIR are punishable with terms of exceeding imprisonment for seven years, therefore, provisions of Section 41 for giving reasons for arrest and Section 41A of the Code of Criminal Procedure, 1973 are squarely applicable in this case. The ratio decided by the Hon’ble Supreme Court in the case of “Arnesh Kumar vs. State of Bihar (2014) 8 SCC 273”is also applicable the present case. Therefore, the learned counsel for the

petitioners would further pray that the appropriate order may be passed directing the Investigating Officer to follow the procedure proscribed under Section 41A of the Code.

5. Learned counsel for the State, on the other hand, would submit that in view of the clear directions given by the Hon’ble Supreme Court in Arnesh Kumar followed by the Hon’ble Supreme Court in the case of “Satender Kumar Antil Vs. Central Bureau of Investigation and Another, 2022 SCC OnLine SC 825,

there is no need to issue repeated orders in each and every case. She also assures this Court that every police official in the State of Uttarakhand is following the principles laid down by the Hon’ble Supreme Court in the aforesaid cases.

6. In that view of the matter the writ application is disposed of. We hope and trust that the Investigating Officer shall not make any illegal arrest without complying with the provisions as stated above. In case, any violation of the order of the Hon’ble Supreme Court, appropriate contempt may be initiated against the erring officers.

7. With these observations, the present writ application is disposed of.

(Sanjaya Kumar Mishra, J.)

06.01.2023