# Ram Kumar Maurya v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 680
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-06-19
- **Case number:** Civil Misc. Writ Petition No.10332 of 2014
- **Bench:** Sudhir Agarwal, Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kumar-maurya-v-state-of-u-p-ors-42901
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-quashing
FIR/stay of arrest offence under section
2 All] Ram Kumar Maurya Vs. State U.P. & Ors.
681
363/366 IPC-cognizable offence made
out-factum of marriage certificate under
Arya Samaj validation Act 1937-can not
be examined-being realm of evidencepetitioner to show before I.O. Or get
statement recorded before magistrateconsidering detail guide lines for a arrest
has been given by the Apex Court any
violation of same-shall be at risk of
personal
risk
of
officer-petition
dismissed.

Held: Para-3 & 9

## Text

680 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Tested on the anvil of the aforesaid
guidelines, the conclusion is irresistible that
as recovery of stolen property is required to
be made and unknown criminal associates of
Respondent no.2 are required to be traced by
conducting raids or searches at suspected
places or persons and evidence is required to
be collected for the purpose of launching a
successful prosecution of the accused, the
appropriate course to be adopted in this
regard was to order an investigation by the
police in exercise of power under section
156(3) Cr.P.C. The learned Magistrate has
erred in treating the application as a
complaint case under misconception that the
applicant was already aware of all the facts
ignoring her specific allegations about the
valuables stolen and taken away by the
suspected persons including some criminal
associates of respondent no.2. The learned
Magistrate has erred in not considering the
judgment in Gulab Chand Upadhyaya case
(supra), which has been taken note of in
Chandrika Singh case referred by the learned
counsel for the applicant and also in
Sukhwasi case (supra).

16. For the aforesaid reasons, the
order passed by the learned revisional
court is also not sustainable as it has
affirmed the order of the learned
Magistrate with reference to the two
judgments
in
Sukhwasi
case
and
Chandrika Singh case without considering
the matter in the light of the judgment in
Gulab Chand Upadhyaya case (supra),
which has already been referred above.

17. Learned courts below have
failed to appreciate that while power and
discretion was vested in the Magistrate,
the exercise of such powers was to be
guided by the decision in Gulab Chand
Case (Supra). Both the courts below have
ignored this aspect of the matter.

18. As the matter is at a preinvestigation stage, the respondent no.2 is
at best a proforma party, accordingly, no
notice is being issued to him.

19. In view of the above discussion
and considering the facts and circumstances
of the case and the law, as referred above, the
impugned order dated 12.5.2014 passed by
the learned Magistrate is set aside. Learned
Magistrate is directed to reconsider the
matter in the light of the observations made
above and pass a fresh order on the
application of the applicant under section
156(3) Cr.P.C.

20. The application is, accordingly,
allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.06.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE VIJAY LAKSHMI, J.

Civil Misc. Writ Petition No.10332 of 2014

Ram Kumar Maurya ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Dr. S.B. Singh

Counsel for the Respondents:
A.G.A.

Constitution of India, Art.-226-quashing
FIR/stay of arrest offence under section
2 All] Ram Kumar Maurya Vs. State U.P. & Ors.
681
363/366 IPC-cognizable offence made
out-factum of marriage certificate under
Arya Samaj validation Act 1937-can not
be examined-being realm of evidencepetitioner to show before I.O. Or get
statement recorded before magistrateconsidering detail guide lines for a arrest
has been given by the Apex Court any
violation of same-shall be at risk of
personal
risk
of
officer-petition
dismissed.

Held: Para-3 & 9
3. At this stage we cannot examine
correctness of the factum of alleged
marriage particularly when these facts
are in the realm of evidence. It is open to
the petitioner to bring all these facts
before
Investigating
Officer
or
he
himself can appear before Magistrate to
get
his
statement
recorded
therein
whereupon the Magistrate shall pass
appropriate order accordingly. So far as
the report is concerned, a bare reading
of
it
discloses
commission
of
a
cognizable offence and rest are the
things subject to investigation and to be
looked into by court below whenever
this matter is brought before it, in
accordance with law.

9. So far as police is concerned, suffice it
to mention that arrest is a mode and
manner
for
aid
and
assistance
of
investigating agency after a report has
been received regarding an offence,
whether cognizable or non cognizable. In
every case, the arrest is not must. It is
the statutory discretion of investigating
officer which has to be exercised fairly
and objectively. Use of power of arrest is
not an arbitrary statutory discretion of
investigating officer or the police but
must be founded on valid considerations.
Some guidelines in this regard have been
established by Apex Court in Joginder
Kumar Vs. State of U.P. 1994(4) SCC
260, D.K. Basu Versus State of West
Bengal; 1997 (1) SCC 416, K.K. Jerath
Vs. Union Territory, Chandigarh and
others, JT 1998(2) SC 658 and Lal
Kamlendra Pratap Singh Vs. State of
U.P.; 2009(3) ADJ 322 etc. Any arbitrary
and indiscreet act of arrest, without any
proper reason, would be at the personal
risk of the officer concerned, for which,
he may have to account for. The act of
arrest during investigation must precede
with the endeavour of officer concerned
for making proper investigation and not
just to penalise an accused or any other
person.

Case Law discussed:
1994(4) SCC 260; 1997(1) SCC 416; JT
1998(2) SC 658; 2009(3) ADJ 322.

(Delivered by Hon'ble Sudhir Agarwal, J)

1. This writ petition has been filed
under Article 226 of Constitution of India
with the prayer for issuance of writ, order or
direction in the nature of certiorari quashing
the F.I.R. dated 2.6.2014 registered as Case
Crime No. 159 of 2014, under Section 363
and 366 I.P.C., Police Station Aurai, District
Sant Ravidas Nagar (Bhadohi) and also for
issuance of a writ, order or direction in the
nature
of
mandamus
directing
the
respondents for not taking any coercive
action against the petitioner pursuant to the
aforesaid report.

2. After some arguments, learned
counsel for the petitioner could not dispute
that the allegations contained in the report, if
taken to be correct on the fact of it, at this
stage do disclose commission of cognizable
offence but it is contended that the girl Pooja
has already solemnized marriage with Amit
Verma at Arya Samaj, Krishna Nagar, Prayag.
To verify solemnization of marriage, photo
copy of certificate issued by the aforesaid
Arya Samaj, Krishna Nagar, Prayag under
Arya Marriage Validation Act, 1937 read with
Hindu Marriage Act, 1955 has been filed.
Thus, it is contended that as a matter of fact,
no offence has been committed under Section
363 and 366 I.P.C. and the petitioner, in any
682 INDIAN LAW REPORTS ALLAHABAD SERIES
case, has no role in the matter. Therefore, the
aforesaid report is nothing but a sheer
harassment for something which is factually
not correct. It is further contended that the
petitioner has nothing to do in the matter in as
much as he is only Manager in an educational
institution namely Learner's Academy School,
Khamahriya, Sant Ravidas Nagar where both,
Pooja Jaiswal and Amit Verma, were working
as teachers and having developed intimacy
amongst them, they solemnized marriage
without consent of the informant, for this
reason alone, the report has been lodged
naming the petitioner therein. When it was
pointed out to the learned counsel for
petitioner that, whatever he has argued, if is
correct, it is always open to the girl and Amit
Verma to appear before the Magistrate
concerned and get their statements recorded
so that appropriate order may be passed by the
court, the learned counsel has said that he has
no information regarding whereabouts of two
persons namely Pooja Jaiswal and Amit
Verma, hence cannot ensure their presence for
recording their statements before Magistrate.

3. At this stage we cannot examine
correctness of the factum of alleged marriage
particularly when these facts are in the realm
of evidence. It is open to the petitioner to
bring all these facts before Investigating
Officer or he himself can appear before
Magistrate to get his statement recorded
therein whereupon the Magistrate shall pass
appropriate order accordingly. So far as the
report is concerned, a bare reading of it
discloses commission of a cognizable
offence and rest are the things subject to
investigation and to be looked into by court
below whenever this matter is brought before
it, in accordance with law.

4. Learned counsel for the petitioner
then contended that this Court should
consider and pass an order protecting
petitioner from arrest by police in view of
the amendment made in Section 41(2) of
the Criminal Procedure Code by Act No.
5 of 2009 which has come into force on
1.11.2010.

5. We have gone through the
aforesaid provision very carefully and
find no application thereof to the case in
hand. Section 41(2) Cr.P.C. as it was
before amendment reads as under :

"Section 41(2) : Any officer in
charge of a police station may, in like
manner, arrest or cause to be arrested any
person, belonging to one or more of the
categories of persons specified in section
109 or section 110."

6. After amendment sub-section 2
has been substituted. The substituted
provision reads as under :

"41(2) - Subject to the provisions of
Section 42, no person concerned in a noncognizable offence or against whom a
complaint has been made or credible
information
has
been
received
or
reasonable suspicion exists of his having
so concerned shall be arrested except
under a warrant or order of a Magistrate."

7. In fact amendment has also been
made by substitution of Clauses (a) and
(b) of Section 41(1) by Act No. 5 of 2009 but
it is not necessary to refer the same in detail
at this stage. Suffice it to mention that
Section 41 lays down guidance to a police
officer when he may arrest a person without
warrant. Sub-section 2 is applicable to a
2 All] Jaiveer Singh Vs. State U.P. & Ors.
683
situation when the offence is non-cognizable.
It has no application in the case in hand.

8. Even otherwise, at this stage, this
Court is not examining legality or otherwise
of arrest made by police, since neither any
one has been arrested nor this writ petition as
such has been filed with a complaint that
police or investigating officer has committed
violation of any provision pertaining to arrest
of any person or the petitioner himself. The
main relief in the writ petition is for quashing
of first information report which, admittedly
having disclosed commission of cognizable
offence is not liable to be interfered with at
this stage.

9. So far as police is concerned, suffice
it to mention that arrest is a mode and
manner
for
aid
and
assistance
of
investigating agency after a report has been
received regarding an offence, whether
cognizable or non cognizable. In every case,
the arrest is not must. It is the statutory
discretion of investigating officer which has
to be exercised fairly and objectively. Use of
power of arrest is not an arbitrary statutory
discretion of investigating officer or the
police but must be founded on valid
considerations. Some guidelines in this
regard have been established by Apex Court
in Joginder Kumar Vs. State of U.P. 1994(4)
SCC 260, D.K. Basu Versus State of West
Bengal; 1997 (1) SCC 416, K.K. Jerath Vs.
Union Territory, Chandigarh and others, JT
1998(2) SC 658 and Lal Kamlendra Pratap
Singh Vs. State of U.P.; 2009(3) ADJ 322
etc. Any arbitrary and indiscreet act of arrest,
without any proper reason, would be at the
personal risk of the officer concerned, for
which, he may have to account for. The act
of arrest during investigation must precede
with the endeavour of officer concerned for
making proper investigation and not just to
penalise an accused or any other person.

10. If on account of caprices of the
officer concerned, any such matter is brought
to this Court, showing an arbitrary exercise
of power of arrest on the part of officer
concerned, such matter may be dealt with by
this Court with iron hands but mere
possibility or apprehension of arrest would
not justify a blanket order from this Court,
restraining
police
from
exercising
its
statutory discretionary power which has been
conferred on it by the statute in aid and
assistance for investigation etc. Reliance has
also been placed at the bar on a Constitution
Bench decision in Lalita Kumari Vs.
Government of Uttar Pradesh and others;
(2014) 2 SCC 1. To our view, this decision
lends no support to the petitioner in the case
in hand for the question raised herein.

11. No interference is called for.

12. The writ petition is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.06.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.

Criminal Misc. Writ Petition No.10426 of
2014

Jaiveer Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amit Kumar Gaur