# Yagya Shanker Trivedi & Ors v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1223
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-08-13
- **Case number:** Misc. Bench No.7041 of 2013
- **Bench:** Imtiyaz Murtaza, Vinay Kumar Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yagya-shanker-trivedi-ors-v-state-of-u-p-and-ors-42662
- **Pages:** 3

## Headnote

Constitution of India, Art. 226- Quashing
FIR-stay of arrest-offence under Section
308, 504, 506 IPC-punishable with 7
years
R.I.-considering
amended
provision of Section 41(1)(b)-Police can
arrest
only
after
recording
reasons
subject
to
order
by
Court-with
contingencies contained
in
amended
provision
itself-interference
not
required-AGA to communicate this order
for strict compliance by S.S.P/S.P of
Distt. concerned-petition dismissed.

Held: Para-5
Also
under
the
newly
introduced
provision, section 41 A Cr.P.C. (which
has also been added by Act No. 5 of
2009, effective from 1.11.2010), in all
cases where the arrest of such an
accused is not needed in view of the
provisions of section 41 (1) Cr.P.C., the
police officer concerned is required to
issue a notice directing the accused to
appear before him at a specified place
and time. However if at any time the
accused fails to comply with the terms
of the notice, or fails to identify
himself, or the police officer is of the
opinion that the arrest is required, he
may arrest the said accused after
recording his reasons for the same. The
police powers of arrest will however be
subject to any orders that may have
been passed by the Competent Court.

## Text

3 All] Yagya Shanker Trivedi & Ors. Vs. State of U.P. and Ors.
1223
affirming the order of the competent
authority and, therefore, the appellate
order can also not be allowed to sustained.

12. In view of the aforesaid
discussion, the impugned orders cannot be
allowed to sustain and are liable to be set
aside and the writ petition deserves to be
allowed.

13. The writ petition is allowed and
the impugned order dated 12.02.2007 and
the order of the appellate authority dated
31.07.2009 along with inquiry report
dated 12.02.2004 submitted by the
Enquiry Officer are set aside.

14. The matter is remitted back to the
Director, Krishi Utpadan Mandi Parishad,
U.P. to proceed with inquiry afresh from the
stage of submission of the reply by the
petitioner after fixing date, time and place
and after giving adequate and reasonable
opportunity of being heard to the petitioner
to adduce his defence, proceed to conclude
the inquiry as expeditiously as possible
preferably within a period of three months
from the date of production of a certified
copy of this order.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.08.2013

BEFORE
THE HON'BLE IMTIYAZ MURTAZA, J.
THE HON'BLE VINAY KUMAR MATHUR, J.

Misc. Bench No.7041 of 2013

Yagya Shanker Trivedi & Ors. .Petitioners
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri Surendra Kumar
Sri Nisha Srivastava

Counsel for the Respondents:
Govt. Advocate

Constitution of India, Art. 226- Quashing
FIR-stay of arrest-offence under Section
308, 504, 506 IPC-punishable with 7
years
R.I.-considering
amended
provision of Section 41(1)(b)-Police can
arrest
only
after
recording
reasons
subject
to
order
by
Court-with
contingencies contained
in
amended
provision
itself-interference
not
required-AGA to communicate this order
for strict compliance by S.S.P/S.P of
Distt. concerned-petition dismissed.

Held: Para-5
Also
under
the
newly
introduced
provision, section 41 A Cr.P.C. (which
has also been added by Act No. 5 of
2009, effective from 1.11.2010), in all
cases where the arrest of such an
accused is not needed in view of the
provisions of section 41 (1) Cr.P.C., the
police officer concerned is required to
issue a notice directing the accused to
appear before him at a specified place
and time. However if at any time the
accused fails to comply with the terms
of the notice, or fails to identify
himself, or the police officer is of the
opinion that the arrest is required, he
may arrest the said accused after
recording his reasons for the same. The
police powers of arrest will however be
subject to any orders that may have
been passed by the Competent Court.

(Delivered by Hon'ble Imtiyaz Murtaza, J.)

1. Heard learned counsel for the
petitioners
and
learned
Additional
Government Advocate.

2. This writ petition has been filed for
quashing an F.I.R and staying the arrest of the
petitioners in Case Crime No. 255 of 2013,
under Sections- 308,504,506 I.P.C. at P.S.-
Kotwali Haidergarh, District-Barabanki.
1224 INDIAN LAW REPORTS ALLAHABAD SERIES

3. By the amendment vide Act No. 5
of 2009, which has come into effect from
01.11.2010, it has been provided in
Section 41(1)(b) Cr.P.C. that a person
against whom credible information of
being involved in a cognizable offence
punishable with imprisonment of 7 years
or less is reported to the police officer, the
police officer, can only arrest an accused
if he is satisfied that:

(a) there is probability of the accused
committing another offence,

(b) for proper investigation of the
offence,

(c) to prevent such person from
causing the evidence of the offence to
disappear or his tampering with the
evidence in any manner,

(d) to prevent such person from
making any inducement, threat or promise
to the witnesses to disclose such facts to
the court or to the police,

(e) unless the person is arrested, his
presence in court could not be ensured
and the police officer has to record the
reasons in writing before making such
arrest.

4. The present case is one
punishable with imprisonment upto 7
years. The petitioner should, therefore
have no apprehension that he would be
arrested unless there are conditions
justifying his arrest as mentioned above
and provided under section 41(1)(b)
Cr.P.C.

5. Also under the newly introduced
provision, section 41 A Cr.P.C. (which
has also been added by Act No. 5 of 2009,
effective from 1.11.2010), in all cases
where the arrest of such an accused is not
needed in view of the provisions of
section 41 (1) Cr.P.C., the police officer
concerned is required to issue a notice
directing the accused to appear before him
at a specified place and time. However if
at any time the accused fails to comply
with the terms of the notice, or fails to
identify himself, or the police officer is of
the opinion that the arrest is required, he
may arrest the said accused after
recording his reasons for the same. The
police powers of arrest will however be
subject to any orders that may have been
passed by the Competent Court.

6. Let a copy of this order also be
given to the A.G.A. within three days, for
communication to the SSP/SP of the
district
concerned,
for
ensuring
compliance
of
this
order
and
the
provisions of section 41 (1) and section
41 A Cr.P.C. in the present case, as well
as all other cases punishable upto 7 years
in
his
district
by
directing
the
investigating officers to refrain from
arresting the accused routinely, unless the
exceptional circumstances mentioned in
sections 41(1)(b) or 41A Cr.P.C. exist in
any case, whereupon the arrests may only
be effected after recording the reasons for
the same. The SSP/SP shall also monitor
the genuineness of the reasons given by
the investigating officer in the cases
where he has arrested an accused.

7.

Subject
to
the
aforesaid
observations
no
ground
exists
for
interfering in the matter.

8. The writ petition is accordingly
dismissed.
--------
3 All] Km. Rachana Goswami Vs. State of U.P. and Ors.
1225
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.08.2013

BEFORE
THE HON'BLE RAVINDRA SINGH, J.
THE HON'BLE ARVIND KUMAR TRIPATHI, J.

Criminal Misc. Writ Petition No. 7173 of
2010
Km. Rachana Goswami
 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri S.M. G. Asghar, Sri V.M. Zaidi

Counsel for the Respondents:
A.G.A., Sri Anurag Khanna
Sri N.I. Jafri, Sri V.P. Srivastava
Sri Vipin Kumar

Constitution of India, Art. 226- Change
of Investigation from Civil Police to
C.B.I.-due to interference of Political
Leader-to take the administrative control
of temple-on apprehension-FIR lodged
under section 364 I.P.C.-Police under
influence submitted closure report-being
perplexed
the
Mahant
taken
Jal
Samadhi-whether death was accidental
or suicide-to be investigated by C.B.I.-
without
being
prejudice
with
fact
whether final report by civil police
accepted or not-as same stand quashed.

Held: Para-11
Hence in view of the fact of this case,
irrespective of the fact that final report
has been submitted and the same has
been accepted or not, the C.B.I. is
directed to investigate the matter with
regard to Case
Crime No.264/2010
under
section
302
I.P.C.
PS.Cantt,
Bareilly and to submit the report within a
reasonable time before the court concern
in accordance with law. If final report
submitted by the civil police has already
been accepted the same stands quashed.

(Delivered by Hon'ble Arvind K.Tripathi, J)

1. Heard learned counsel for the
parties and perused the record.

2. The present writ petition has been
filed with the prayer to issue writ of
mandamus commanding the respondents
no.1 & 2 to transfer the investigation of
the Case Crime No.264/10 under section
364 I.P.C. PS. Cant District Bareilly from
local police to some other independent
agency to get fair investigation of the
same according to law.

3. The case of the petitioner is that
she is resident of 339, PS Sadar Bazar,
Police Line, PS. Cant, District Bareilly.
There is temple of petitioner's family
known
as
Dhopeshwar
Mahadev
Birajman Mandir Bhopa, Sadar Bazar
Bareilly.
The
grand
father
of
the
petitioner Late Mahant Gokaran Giri,
aged about 95 years was the Mahant and
Manager of the said temple. In respect of
the properties belonging to the temple
there was a old grant in favour of Hindu
Community and the ancestor of the
petitioner's family were looking after the
management and Puja. The said temple is
situated in Cant area District Bareilly. The
temple consists of building of the temple,
Thakurdwara,
New
Durga
Mandir,
Vaishno Ji Mandir,
Hanumanji Ka
Mandir, Sai Dev Mandir, Ardhnarishwar
and
Gufa,
Dhopeshwar
Nath
Park,
Dhopeshwar Nath Tank. Apart from the
said building/property of the temple
Dhopeshwar Nath Mahadev Temple,
there are six residential houses situated in
Mohalla Sadar Bazar, Cant Bareilly
within the premises of the said temple.
There are ten shops. Out of ten shops, five
shops are in possession of the respondent
no.5 who has put his locks and closed the
same. There is open land adjacent to the
premises of the said temple measuring