- many husbands do NOT prepare a quash petition appropriately and run for quash
- the Hon High court notices that a cognizable offence is clearly mentioned in the case and so cannot be quashed. The probability of that offence NOT happening or absurdity of the allegations is NOT brought out ( unfortunately !! )
- however the Hon court clearly affirms that since 498a entails a punishment of less than 7 years, if any arrest is made in a case filed under Sec 498a , it shall be in accordance with sec 41 A CRPC
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. – 40
Case :- CRIMINAL MISC. WRIT PETITION No. – 13239 of 2016
Petitioner :- Mujib & 7 Others
Respondent :- State Of U.P. & 2 Others
Counsel for Petitioner :- Nirbhay Singh
Counsel for Respondent :- G.A.
Hon’ble Bala Krishna Narayana,J.
Hon’ble Ravindra Nath Kakkar,J.
Heard learned counsel for the petitioners and learned AGA for the State.
Petitioners have approached this Court with a request to quash the FIR registered as Case Crime No. 14 of 2016, under Sections 498A, 323, 504, 506 I.P.C. and section 3/4 Dowry Prohibition Act, PS. Mahila Thana, district-Firozabad.
This Court has the occasion to peruse the FIR and the FIR in question does discloses a cognizable offence, in view of this, there is no occasion for this Court to quash the FIR, as has been prayed on behalf of petitioners, as such, prayer made on the said score is refused by this Court.
Learned counsel for the petitioners next contended that the offence in question as has been alleged to have been committed by the petitioners is under Sections 498A, 323, 504, 506 I.P.C. and section 3/4 Dowry Prohibition Act and the said offence even if the charges are found to be proved sentence of more than 7 years can not be awarded and, in view of this, mechanically arrest should not be effectuated by the police personnel.
The fact of the matter is that till date arrest has not been effectuated and this is mere apprehension of the petitioners that they would be arrested in breach of provisions as contained under Section 41 (1) (b) read with Section 41-A of the Cr.P.C. Once there is statutory provision provided for then it is always expected that the said provisions would be adhered to and in case there is any violation of the same, complaint can also be made before the Magistrate concerned to remedy the situation.
In view of the above, it is hereby directed that in case arrest of petitioner is to be effectuated and the offence, in which he is wanted, will not entail sentence of more than 7 years then in that event concerned police personnel should deal with the matter in compliance of the provisions as contained under Section 41 (1) (b) read with Section 41-A of the Cr.P.C.
It is further provided that if the investigation in this matter has been completed and police report under Section 173(2) Cr.P.C. has been filed, the petitioners shall not be entitled to any benefit of this order.
Writ petition stands disposed of.
Order Date :- 3.6.2016
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