# Arvind & Anr v. State of U.P. & Ors

- **Citation:** (2015) 3 ILRA 1269
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-22
- **Case number:** Criminal Misc. Writ Petition No. 19074 of 2015
- **Bench:** V.K. Shukla, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-anr-v-state-of-u-p-ors-43386
- **Pages:** 9

## Headnote

Constitution of India, Art.-226-quashing of
FIR-offence under section 420; 467, 468,
471, 406 IPC-argument that allegation
relates Civil in nature-no offence for
criminal
prosecution
made
out
court
explained difference between civil and
criminal wrong-further apprehension of
harassment and foul investigation-SSP
concern shall look into the matter-petition
dismissed-till credible evidence there or till
submission of charge sheet-arrest stayed.
Held: Para-20
The difference between civil wrong and
criminal wrong turns on two different
objects, for civil wrong, the wrong doer
is not punished rather contrarily the
suffers gets a definite benefit from the
law, whereas for criminal wrong the
main object of law is to punish the
wrong doer. In the present case, there is
prima facie amalgam of both, that the
firm in question has been put to loss and
has been cheated.
Case Law discussed:
1992 (1) SCC 1; 2011 (7) SCC 59; (1996) 5
SCC 591; 2008 (9) SCC 677; [2014 (4) SCC
453]; [1994 (4) SCC 260].

## Text

3 All] Arvind & Anr. Vs. State of U.P. & Ors.
1269
of production of a certified copy of this
order.
16. The writ petition is allowed with
no orders as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2015
BEFORE
THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.
Criminal Misc. Writ Petition No. 19074 of
2015
Arvind & Anr.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Faizan Ahmad, S.F.A. Naqvi, Sri M.M.
Tripathi, Sri N.S. Mishra, Sri P.C. Dwivedi
Counsel for the Respondents:
A.G.A., Sri Anurag Khanna, Sri Sumit
Daga
Constitution of India, Art.-226-quashing of
FIR-offence under section 420; 467, 468,
471, 406 IPC-argument that allegation
relates Civil in nature-no offence for
criminal
prosecution
made
out
court
explained difference between civil and
criminal wrong-further apprehension of
harassment and foul investigation-SSP
concern shall look into the matter-petition
dismissed-till credible evidence there or till
submission of charge sheet-arrest stayed.
Held: Para-20
The difference between civil wrong and
criminal wrong turns on two different
objects, for civil wrong, the wrong doer
is not punished rather contrarily the
suffers gets a definite benefit from the
law, whereas for criminal wrong the
main object of law is to punish the
wrong doer. In the present case, there is
prima facie amalgam of both, that the
firm in question has been put to loss and
has been cheated.
Case Law discussed:
1992 (1) SCC 1; 2011 (7) SCC 59; (1996) 5
SCC 591; 2008 (9) SCC 677; [2014 (4) SCC
453]; [1994 (4) SCC 260].
(Delivered by Hon'ble V.K. Shukla, J.)
1. Petitioners who are two in number
are before this Court with a request to
quash
the
FIR
dated
16.07.2015,
registered as Case Crime No. 362 of
2015, under Sections 420, 467 ,468, 471,
406 IPC, Police Station Parta pur,
District Meerut and for sommanding the
Respondents not to harass the petitioners.
2. Petitioners before this Court are
stating that they are partners of M/s A.M.
Associates,
a
partnership
firm
that
functions in the name and style of M/s
O.S.G. Exim Services Private Limited.
Said firm is engaged in providing and
uploading all the required documents and
information of the export and bank
realization details on the DGFT website
and generate an application for obtaining
the Licenses and acting as a liaison agent.
Petitioners submit that Sharda Exports
executed power of attorney in the name of
its employees namely Prabhash Chandra
Sharma, the Manager as well as Gurnam
Singh, Senior Executive to be the
authorised signatory for signing of
application, Bank Realisation Certificates,
shipping bills and other documents
required for issuance and obtaining of the
Focus Product Licenses and to make and
to make necessary amendments and
changes in the document. Petitioners are
stating that whatever activity has been
carried out by them, same has been at the
instruction and directives of Prabash
1270
 INDIAN LAW REPORTS ALLAHABAD SERIES
Chandra Sharma, Manager and Gurnam
Singh, Senior Executive and Sharda
Export has proceeded to lodge FIR by
mentioning that petitioner nos. 1 and 2
who are allegedly operating a firm in the
name and style of A.M. Associates in
connivance with Gurnam Singh, sold 56
licences within a period of 5 years i.e.
from 2009-2014 and by such activity
Rs.4.50 Crores has been swindled as said
amount has been distributed amongst the
relative of Gurnam either incash or in
their accounts, whereas said amount was
liable to be deposited in the account of
Sharda Exports, but the same was
misappropriated. In the FIR it has been
mentioned that sum of Rs. 60.35 lacs has
been paid back to the informant by the
petitioners. Petitioners' submission is that
whatever transaction has been undertaken,
same are valid transaction and in case first
informant
has
any
grievance,
his
grievance should be with Gurnam Singh
and as far as petitioners are concern,
unnecessarily in designed manner they
have been arrayed as an accused in the
present case and under threat they have
been forced to make payment of Rs. 60.35
lacs.
3. Supplementary affidavit has been
filed on 14.08.2015 and therein once
again same set of facts have been repeated
that petitioners have nothing to do with
the affair of Gurnam Singh, who is
actually employee of respondent no.4. In
the said affidavit in question, statement of
account have been appended to show that
regularly Sharda Exports made payments
to the petitioners firm and amount was
debited that was paid on behalf of Sharda
Exports relating to fee and miscellaneous
charges etc. It has been further mentioned
therein that Sharda Exports is partnership
firm, changes its character every five
years by just changing sequences of
partners/directors or by adding some new
names by deleting previous names.
Petitioners have proceeded to mention
that no amount had been transferred unauthorizedly, but on the directive of
authorised representative said exercise has
been undertaken.
4. Supplementary affidavit has been
filed on 25.08.2015 appending therein
copy of the account of A.M. Associates
and copy
of the account of Kotak
Mahindra Bank Pvt. Ltd. and in the said
supplementary affidavit, it has been
submitted that there has been various cash
transaction and on the asking for amount
has been deposited.
5. Another supplementary affidavit
has been filed on 28.08.2015 mentioning
therein that 40 licenses have been sold by
the petitioners and details of transaction
has also been sought to be provided for
giving therein net payable amount by the
petitioner is sum of Rs. 3.5 Crores,
whereas amount that has been paid is over
and excess to the same.
6. Counter affidavit has been filed
on 07.09.2015 and therein it has been
mentioned
that
under
the
powers
conferred by Section 5 of the Foreign
Trade (Development & Regulation) Act,
1992 (No. 22 of 1992), the Central
Government periodically notifies the
Foreign Trade Policy, for a period of 5
years. The Foreign Trade Policy for 20092014 (hereafter as ("FTP") came into
effect on 27.08.2009. The Director
General of Foreign Authority is an
authority established under the Ministry
of Commerce & Industry, created under
the above mentioned Act. It has been
further mentioned that in order to promote
3 All] Arvind & Anr. Vs. State of U.P. & Ors.
1271
export and boost the Indian industry, the
Central
Government
runs
various
promotional schemes. Sharda Exports is
eligible for incentive, called the Duty
Credit Slip, under two such schemes,
namely , Vikas Krishi and Gram Udyog
Yojna and Focus Product scheme. The
said Duty Credit Slip, also called Focus
Product License, is issued by the Director
General of Foreign Trade (hereinafter
("DGFT"), after submission of documents
and verification. The license is issued on
the basis of the goods exported and the
value of such exports. The benefit or
advantage which accrues to the License
holder under the Vikas Krishi and Gram
Udyog Yojna and Focus Product Scheme
is that the value/amount mentioned in the
License can be utilized for payment of
import duty, as provided in paragraph
3.17.5 of the FTP. Further, the said
licences can also be utilised to pay
additional Customs Duty, as provided in
paragraph 3.17.6 of the FTP. The said
Licenses are freely transferable, according
to the provisions of FTP in paragraph
3.17.4. It has been further mentioned that
there are two modes in which the Focus
Produce License can be obtained from the
office of DGFT, as prescribed in the
Handbook of Procedures, Vol. 1(a part of
FTP)- first, a self addressed envelope with
affixed stamps to be provided by the
Applicant and second, an identity card is
issued
to
proprietor/partner/director/authorised
employee of the exporter. The complete
process for issuance and obtaining said
License from the office of DGFT is as
follows:
On export, a Commercial Invoice is
generated by Sharda Exports, on the basis
of which the Custom House Agent
(authorised by Central Board of Excise &
Customs) is required to furnished and
upload details on the website of Central
Board of Excise and Customs, after which
a Shipping Bill is generated, in triplicate.
After the produce is exported, a
Export Promotion copy of Shipping Bill is
issued to the exporter by the Department
of Customs.
A Bank Realisation Certificate is
sussed by the banker once export
remittances are received in foreign
currency.
Thereafter,
an
application
for
obtaining the said License is generated
on-line through the DGFT website, after
filing required details of the export and
bank
realization,
and
uploading
of
necessary documents.
The said application is required to be
signed by the authorised signatory after
which a copy of all the above mentioned
documents along with the duly signed
application form and a covering letter, is
required to be submitted in the DGFT
office.
Subsequent
to
verification
of
documents and issuance of the License by
the DGFT, only the authorised personnel
in whose favour an identity card is issued
by the DGFT )as mentioned above) can
collect license from the office of the
DGFT after presenting his identity card.
7. It has been further mentioned that
the license issued by the DGFT contains
the value of the license and the name in
whose favour the said license is issued. It
has also mentioned that A.M Associates
was a liaison agent and its role was to
provide and upload all the required
documents and information of the export
and bank realization details on the DGFT
website and generate an application for
obtaining the Licenses. Sharda Exports
executed a power of Attorney (annexed as
1272
 INDIAN LAW REPORTS ALLAHABAD SERIES
Annexure No. 2 of the writ petition) in
favour
of
Gurnam
Singh,
Senior
Executive and Mr. Prabhash Chandra,
Manager to be the authorised signatory
for
signing
of
Applications,
Bank
Realisation Certificates, Shipping Bills
and other documents required for issuance
and obtaining of the Focus Produce
Licenses,
and
to
make
necessary
amendments and changes in the said
document. The exporter in whose name
the said Focus Produce License is issued
can transfer the license to any person. The
following documents are required to
transfer the said license.
1. Physical/printed Focus Produce
License.
2.
An
invoice,
wherein
the
percentage of face value at which the
license is being sold at , is mentioned by
the transferor, and
3. A Transfer Letter duly signed by
the Director/Partner/Proprietor of the
exporter, in whose favour the license was
issued. ( The signature of such person on
the transfer letter is to be duly attested by
the banker of the transferor)
8. It has been mentioned that in the
present case, after obtaining the Focus
Produce
Licenses,
Gurnam
Singh
fraudulently obtained signature of the
partner of Sharda Exports on blank
transfer letters, which he alongwith the
petitioners, used to commit cheating and
other illegal activities. Further in the
normal course of effecting transfer of
licenses, the License number of the Focus
Produce License being transferred is
typed in the Transfer letter, after which
the said Transfer Letter is printed and
thereafter signed by the Partner. However,
with respect to the 56 illegally sold
licenses, as has been found in the illegally
sold licenses arranged from third parties
that the License number is manually
written by hand, in the transfer letters,
which clearly shows foul play and unfair
dealing. It has been mentioned that after
fraudulently obtaining signatures on the
blank transfer letters, Gurnam Singh
forwarded the same to A.M. Associates.
Thereafter, A.M. Associates created a
false invoice (third document required for
transferring Licenses) showing A.M.
Associates as the seller of the License,
thereby fraudulently and illegally having
all the documents required for selling of
the Licenses. It is pertinent to mention
that the wrongful consideration received
by selling of licenses in illegal and
fraudulent manner, was received in the
accounts of A.M. Associates, even though
Sharda Exports were the rightful owners
of the Licenses. After receiving the illegal
consideration, petitioners distributed the
money amongst themselves, by giving
Gurnam Singh's share to him in cash also
via bank transfer to Gurnam Singh
account and in the accounts of Gurnam
Singh's relatives. The details of such
distribution and bank transfer are stated in
detail in the FIR. It is important to
mention that it is an admitted fact that the
petitioners have paid Rs. 60,35.000
(Rupees
Sixty
Lakhs
Thirty
Five
Thousand) to Sharda Exports. It is
submitted that this act of returning the
said amount by the petitioners is an
admission of guilt. There is absolutely no
reason for the petitioners to give such a
big amount of money to Sharda Exports,
other than return the money which they
have illegally and fraudulently taken from
Sharda Exports. On the contrary, in
normal course of business, it is the firm
which has to pay A.M. Associates for its
services. This, it is abundantly certain that
petitioners
have
engaged
in
illegal
3 All] Arvind & Anr. Vs. State of U.P. & Ors.
1273
activities, have returned Rs. 60,35,00/-
out of guilt and for no other reason.
9. Para wise reply has also been
given therein same set of fact has been
repeated, and the averments mentioned in
the writ petition has been disputed.
10. After pleadings mentioned
above, have been exchanged, thereafter,
present writ petition has been taken up for
final hearing/disposal with the consent of
the parties.
11. Sri Madhu Mukul Tripathi,
learned
counsel
for
the
petitioners
contended with vehemence that in the
present case as far as petitioners are
concern, they have not committed any
offence worth name and unnecessarily
petitioners' names have been dragged in
the FIR and based on the same petitioners
have been forced to pay sum of Rs.
60,35,00/- and in case grievance of the
first informant that any amount is due to
be paid to him, then there is alternative
remedy of filing Suit, and lodging of FIR
is misuser of criminal forum and as such
this Court should come to the rescue of
petitioners by protecting their personal
interest.
12. Averments made on behalf of
the petitioners, has been resisted by
learned A.G.A. by contending that FIR
does discloses cognizable offence, as such
there is no occasion for this Court to
entertain the request of petitioners.
13. Sri Anurag Khanna, Senior
Advocate, assisted by Sri Sumit Daga,
Advocate on the other hand contended
that this is glaring case of fraud and
manipulation made by the petitioners'
firm in active collusion with the employee
of the first informant company, and once
clear cut offence is made out from the
reading of the FIR, no interference should
be made.
14. We have proceeded to examine
the pleadings in question along with
contents of FIR and as far as FIR goes it
clearly contains categorical statement of
fact that first informant firm has been
engaged in the business of Carpet
Exports, in the name and style of Sharda
Exports. In the said firm Gurnam Singh
had been performing and discharging his
duty as Senior Executive and said
Gurnam Singh in active collusion with the
petitioners, who are running the firm in
the name and style of A.M. Associates
have illegally proceeded to sell 56
licenses and has swindled Rs. 4,50,00,000
Lacs based on the fictitious document and
said amount has been transferred in the
account of A.M. Associates. Thereafter,
entire amount has been transferred in the
name of Gurnam Singh and his relative,
whereas Gurnam Singh has no authority.
Once such fact has been mentioned in the
FIR then the FIR on its face value does
disclose prima facie cognizable offence.
15. The other side of the story
narrated by petitioners is that Sharda
Exports had proceeded to issue "Transfer
of
Debiting
Credit
Entitlement
Certificate" and Focus Product License,
authorising the petitioners. In the said
certificate in question clear cut mention
was made that said certificate has not
been transferred to anybody else and same
will be property of said transferee and
Sharda Exports will have no right
whatsoever on the above, it is irrevocable
confirmation certifications is also there,
that full and final compensation has been
received and Sharda Export will have no
1274
 INDIAN LAW REPORTS ALLAHABAD SERIES
lien over the same. Submission of the
petitioners is that once said documents
has been issued and said documents have
been acted upon, then to say that any
offence is committed, is too for fetched.
16. From the side of first informant,
it has been sought to be contended that
after such Transfer of Debiting Credit
Entitlement Certificate and Focus Product
License is prepared, and in case it is to be
transferred, then it has to be preceded by
invoice certificate, wherein full details
would be given such as License number,
value of licence and part of registration
etc. and thereafter, consignee is entitled to
get the same en-cashed. Here in the
present case no invoice certificate has
been issued in favour of any consignee to
get aforementioned 56 licences, rather it
is reflected from the record in question
that
A.M.
Associates proceeded to
prepare debit note and based on the same
transfer in question have been acted upon.
17. As far as appending of signature
on
documents
namely
Transfer
of
Debiting Credit Entitlement Certificate
and Focus Product License are concern,
same has been accepted, but an attempt
has been made to dis-own the same by
contending that Gurnam Singh has
fraudulently obtained transfer letter of 56
licences. Thus, this much fact is admitted
that on 56 licenses that has been so
issued, there is signature of partner that
has been got obtained by Gurnam Singh
and as to whether said Gurnam Singh has
practised fraud, certainly same has to be
subject matter of investigation.
18. Once such is the factual situation
that is so emerging from the reading of
FIR that transfer letter bears signature of
partner of Sharda Exports, and it has also
been stated that blank transfer letters were
got signed, and they have been misused
by Gurnam Singh in active collusion of
petitioners, as the name of parties in
whose favour transfer has been effected
upon has been filled subsequently, by
hand, and said transfer letter could have
gone out of Sharda Export alongwith
invoice, and here admittedly no invoice
note had been
issued,
rather
said
certificate in question along with debit
note of A.M. Associates has been
transferred in favour of other company.
Consequently, once the first informant is
accepting this fact that said transfer
certificate bears signature of member of
partner of Sharda Exports, but as it has
been alleged that Gurnam Singh has
succeeded in getting signature on blank
transfer letter and said document has been
passed on by Gurnam Singh to the
petitioners and thereafter under covering
debt note, same has been transferred. In
view of this, once element of cheating,
misappropriation and diversion of fund
has been attributed to Gurnam Singh then
the matter has to be investigated and what
has been the actual role played by the
petitioners would also be reflected once
free/fair/transparent
investigation
is
carried out.
19. Once such is the factual situation
i.e. so emerging from the reading of FIR
that 56 licenses have been sold and this
much is also clear that said amount has
not reached in the account of company
and defence of petitioners is that said
amount has been transferred in the
account as has been asked for by Gurnam
Singh, who has been dealing with the
petitioners, then as to whether there has
been any dis-honesty and petitioners have
been acting bonafide or not, certainly has
to be matter of investigation.
3 All] Arvind & Anr. Vs. State of U.P. & Ors.
1275
20. The case in hand has prima facie
criminal taint, and does not fall in any of
the category enumerated in the case of
State of Haryana Vs. Bhajan Lal 1992 (1)
SCC 1, for exercising authority to quash
the FIR in quesdtion For recovery of the
amount Suit can always be filed, and case
in hand cannot be said to be dealing with
pure civil wrong, as has been in the case of
Joseph Salvaraj A Vs. State of Gujrat
2011(7) SCC 59, wherein appellant failed
to pay sum of Rs. 10 Lacs as promised and
suit for recovery of money had already
been filed. Here monetary loss has been
allegedly caused to the firm, for recovering
the said amount suit is the remedy. The
difference between civil wrong and
criminal wrong turns on two different
objects, for civil wrong, the wrong doer is
not punished rather contrarily the suffers
gets a definite benefit from the law,
whereas for criminal wrong the main
object of law is to punish the wrong doer.
In the present case, there is prima facie
amalgam of both, that the firm in question
has been put to loss and has been cheated.
Apex Court in the case of CBI Vs.
Duncans Agro Industries Ltd. (1996) 5
SCC 591 and Nikhil Merchant Vs. CBI
2008(9) SCC 677 came to hold "that in a
given case, a civil proceeding and a
criminal
proceeding
can
proceed
simultaneously. Bank is entitled to recover
the amount of loan given to the debtor. If
in connection with obtaining the said loan,
criminal offences have been committed by
the person accused thereof including the
officials of the Bank, criminal proceedings
indisputably be maintainable". Once such
is the factual situation i.e. so emerging
from the reading of FIR, then to say that no
offence is made out, cannot be accepted, in
view of this, request made for quashing of
FIR is turned down and certainly matter
has to be investigated.
21. Petitioners' counsel has also
expressed apprehension, that local police
has not been acting fairly, as they have
been illegally detained w.e.f. 11.11.2014
to 14.11.2014 and were forced to pay Rs.
60.35 lacs. Petitioners have stated that
they
have
already
requested
for
free/fair/transparent investigation.
22. Accordingly, in the facts of the case,
we proceed to ask Senior Superintendent of
Police,
District
Meerut,
for
ensuring
free/fair/impartial investigation, to nominate a
officer of the rank of Dy. S.P. to supervise the
on going investigation, so that truth comes on
surface and the role played by petitioners in
the transaction in questioned is also clear.
23. Learned counsel for the
petitioners next contended that in the facts
of the case as criminal forum is being
misused the arrest of petitioners be stayed
by this Court.
24. Apex Court in the case of Hema
Mishra Vs. State of U.P. and others [2014
(4) SCC 453] has considered the matter
and has clearly ruled therein that once
request for quashing of the FIR is turned
down then second prayer for according
interim order of staying arrest should not
be accorded. In view of this, request that
has been so made on behalf of petitioners
to stay the arrest cannot be accepted by
this Court.
25.

Petitioners'
counsel
next
contended that petitioners would be
mechanically arrested in the present case
even without there being any credible
evidence, connecting them with the crime
in question.
26. Apex Court in the case of
Joginder Kumar Vs. State of U.P. [1994
1276
 INDIAN LAW REPORTS ALLAHABAD SERIES
(4) SCC 260] has mentioned that law of
arrest is one of balancing individual
rights, liberties and individual rights on
one
hand
and
individual
duties,
obligations and responsibilities on other
hand. The existence of power is one thing
and justification for exercise thereof is
another. Arrest cannot be made in routine
manner.
Para
20
of the aforesaid
judgment is quoted below:
"No arrest can be made because it is
lawful for the police officer to do so. The
existence of the power to arrest is one
thing. The justification for the exercise of
it is quite another. The police officer must
be able to justify the arrest apart from his
power to do so. Arrest and detention in
police lock-up of a person can cause
incalculable harm to the reputation and
self-esteem of a person. No arrest can be
made in a routine manner on a mere
allegation of commission of an offence
made against a person. It would be
prudent for a police officer in the interest
of protection of the constitutional rights of
a citizen and perhaps in his own interest
that no arrest should be made without a
reasonable satisfaction reached after some
investigation as to the genuineness and
bona fides of a complaint and a
reasonable belief both as to the person's
complicity and even so as to the need to
effect arrest. Denying a person of his
liberty
is
a
serious
matter.
The
recommendations
of
the
Police
Commission
merely
reflect
the
constitutional
concomitants
of
the
fundamental right to personal liberty and
freedom. A person is not liable to arrest
merely on the suspicion of complicity in
an
offence.
There
must
be
some
reasonable justification in the opinion of
the officer effecting the arrest that such
arrest is necessary and justified. Except in
heinous offences, an arrest must be
avoided if a police officer issues notice to
person to attend the Station House and not
to leave the Station without permission
would do."
27. Registration of FIR under
Section 154 Cr.P.C. and arrest of accused
person under Section 41 are two entirely
different
concepts.
Apex
Court
in
Criminal Writ Petition No. 68 of 2008
Lalita Kumar vs. Government of U.P.
decided on 12.11.2013 has clearly ruled
that it is not correct to say that just
because FIR is registered, the accused
person can be arrested immediately. In the
said judgment itself, as to why legislature
has consciously used the expression
information in Section 154(1) of the Code
as against the expression used in Section
41(1)(a) and (g) where the expression
used for arresting person without warrant
is "reasonable complaint" or "credible
information" has been dealt with as the
expression under Section 154(1) of Code
is not qualified by the prefix "reasonable"
or "credible". In the matter of arrest
various safeguards have been provided
and once again Joginder Kumar (Supra)
has been reiterated in paragraph 99.
28. Authority to arrest without
warrant has been conferred with the
police officer under Chapter V Section 41
of the Code of Criminal Procedure, and it
is for the police officer to decide as to
what action is required to be taken while
effectuating arrest and certainly this
decision has to be taken on the basis of
material/information.
In
cognizable
offences where maximum sentence is 7
years, arrest is not to be made in routine
manner, and provisions of Section 41 (1)
(b) and 41-A has to be complied with, and
in
cases
when
there
is
credible
3 All]
 Akash Sharma Vs. State of U.P. & Ors.
1277
information of committing cognizable
offence punishment with imprisonment of
term for more than 7 years whether or
without fine or with death sentence and
the police officer has reason to believe
that such person has committed the said
offence
arrest
can
be
effectuated
straightway. In reference of the offence
committed, information received, it is the
police officer, who has to decide as to
what offence has been committed by the
accused and as to whether arrest is
warranted in the facts of the case, and as
to what criteria is to be adhered to. In case
any infringement of law is there in
effectuating
arrest,
the
Magistrate
concerned, before whom accused is
produced for remand, can remedy the
grievance, so raised by the arrested
person, at the point of time of according
remand under Section 167 Cr.P.C.
29. Consequently, keeping in view
the peculiar facts and circumstances of the
case and the factum alleged that no
credible evidence worth name is available
against petitioners, we proceed to pass an
order that investigation may go on and
petitioners shall extend full cooperation in
the investigation and shall not hamper
with the investigation, but pursuant to
impugned
FIR
dated
16.07.2015,
registered as Case Crime No. 362 of
2015, under Sections 420, 467, 468, 471,
406 IPC, Police Station Partapur, District
Meerut, petitioners may not be arrested
till credible evidence is collected or till
submission of police report under Section
173 (2) Cr.P.C., whichever is earlier.
30. With these observations, writ
petition is disposed of.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.09.2015
BEFORE
THE HON'BLE PANKAJ MITHAL, J.
Writ-C No. 20863 of 2015
Akash Sharma
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Jeet Bahadur Singh
Counsel for the Respondents:
C.S.C.
U.P. Intermediate-Education Act 1921,
Chapter-III-Regulation-7-Rectification
of date of birth-petitioner appeared in
High
School
examination
2007-in
certificates cum mark sheet date of birth
recorded 01.01.90-while school record
show 01.01.93-rejected on time barred
ground-held-illegal-limitation is provided
for candidate-and not for authorities
concern-by exercising inherent powersuch clerical mistake ought to have
corrected-order impugned base upon
without application of mind-quashed.
Held: Para-19
The Regional Secretary of the Board has
simply rejected the application of the
petitioner on the ground of limitation
without application of mind to the facts
and circumstances of the case. Thus, he
failed in discharge the pious obligation
to rectify the mistake occurring in the
public record which are supposed to
maintain correctly.
Case Law discussed:
(1998) 7 SCC 123
(Delivered by Hon'ble Pankaj Mithal, J.)
1. Heard learned counsel for the
petitioner and learned Standing Counsel
for the respondents no. 1 and 2.