Pratik Agarwal vs State of Assam

The accused petitioner, Pratik Agarwal was arrested on 21.03.2017, in connection with Jalukbari P.S. Case No. 257/2017 u/s 120B/420/406 IPC

and a bail application was preferred before this Court which was registered as BA No. 311/2017 and this Court by an order dated 27.03.2017, granted

him bail. At the time of preferring the bail petition, the learned counsel for the petitioner has submitted that in fact the accused preferred anÂ

anticipatory bail application in connection with Jalukbari P.S. Case no. 216/2017 u/s 406/420 IPC and he was granted interim bail by the order of the

Court below on 17.03.2017 with a direction to the petitioner to appear before the I.O. Accordingly, on 21.03.2017 at 11 a.m, the accused petitioner

went to the Jalukbari P.S. as per direction of the Court then on the same day at about 2.00 p.m. the petitioner was arrested in connection with the

Jalukbari P.S. Case No. 257/18 without serving any notice u/s 41A of Cr.P.C. It has been assailed that the conduct of the I.O. is not justifiable

because FIR was filed on the same day when the petitioner went to the Police Station in connection with Jalukbari P.S. Case No. 216/2017.

The learned counsel for the petitioner, Mr. G. N. Sahewalla referring to the direction of theHon’ble Supreme Court in Arnesh Kumar Vs. State

of Bihar & Anr. reported in 2014 (8) SCC 273, it has been vehemently contended that the Police Officer cannot arrest a person without serving prior

notice to him under Section 41A Cr.P.C. in an offence punishable up to 7 years. It has been pointed out that notice of appearance in terms of the

Section 41A Cr.P.C. is to be served on the accused within 2 weeks from the date of institution of the case, which may be extended by the S.P. of the

district for reasons to be recorded in writing. The aforesaid provision has not been complied with by the I.O. while arresting the accused petitioner

rendering the Police Officer liable for violation of the mandate of the Arnesh Kumar (supra).

This Court on verification of the documents found the submission of the petitioner is true that on the very day of filing of the FIR in Jalukbari P.S.

Case No. 257/17, the accused petitioner was arrested while according to the learned counsel for the petitioner that the accused petitioner went to the

Police Station to avail the interim bail as granted to him in connection with the Jalukbari P.S. Case No. 216/17. It is discernible from the FIR of

Jalukbari P.S. Case No. 257/17 was filed on 21.03.2017 at 2.00 p.m. and the accused was also arrested on the same very day. The accusation

made in the said FIR is exactly same to the FIR pertaining to Jalukbari P.S. Case No. 216/2017, wherein it has been alleged that the accused person

who is the owner of M/s Pratik Intracomm Pvt. Ltd. along with his mother, Sarita Agarwal by entering into an agreement with the informant

concerned took an amount of Rs. 35,00,000/- for providing flat to the informant in the year 2014 but the no such flat was delivered, so the allegation of

cheating has been raised against the petitioner.

On the basis of aforesaid, this Court directed the concerned I.O. of the case, S.I. Abbubakkar Siddique to explain the reasons for not following the

principle of law and in turn the I.O. filed an affidavit-in-opposition submitting inter alia that the notice u/s 41A Cr.P.C. in connection with Jalukbari

P.S. Case No. 36/16 u/s 420 IPC was served upon the accused on 12.06.2016, but however the accused was found absconding in connection with

Jalukbari P.S. Case No. 216/17 though they attempted to serve the notice u/s 41A Cr.P.C. Further it is submitted that the accused petitioner was

arrested on 21.03.2017 by the Officer-in-Charge of Jalukbari Out Post in connection with Jalukbari P.S. Case No. 257/17 and he was brought to the

Jalukbari Police Station and accordingly he was arrested on 22.03.2017 and produced before the Court. The present I.O. was informed by the O.C.

Jalukbari P.S. that the accused is an absconder in connection with Jalukbari P.S. Case No. 216/17 and if he is not arrested in connection with

Jalukbari P.S. Case No. 257/17 he will again abscond. Accordingly it is submitted while affecting arrest, notice u/s 41A could not be served as

accused was absconding in connection with two other cases.

It is also submitted that on the similar accusations another FIR was also was filed by the informant J. Hazowali, which has been registered as

Jalukbari P.S. Case No. 280/17 u/s 420. Thus the accused petitioner was found absconding in connection with all the cases mentioned above and he

cheated so many persons by taking large amount of money against the booking of flat in the Basera Residency of Lankeswar owned by the present

petitioner in the name of M/s Pratik Infracom Pvt. Ltd. a real estate company. In fact the I.O. filed two affidavit on the facts narrating all detail about

the conduct of the petitioner that despite of several cases pending against him, he is found to be absconding so the O.C. Jalukbari P.S. has directed

him to arrest the accused petitioner without further service of notice u/s 41A Cr.P.C. It is stated that total four numbers of cases have been registered

against the accused persons including the present one and the residence of the accused persons were found under lock and key and as such notice u/s

41A Cr.P.C. could not be served upon them. However, the I.O. has sought for unconditional apology before this Court for the act done by him as per

the direction of his higher authority.

The learned counsel for the petitioner has also filed a reply to the affidavit-in-opposition filed by the I.O. contending that the I.O. has taken the

resort of falsehood while placing the matter raising allegation of absconding against the petitioner which is not true. It is submitted that although the

accused petitioner was arrested on 21.03.2017 but he was produced before the Court on 22.03.2017. It contends that the petitioner were never served

any notice in connection with other three cases and except the Jalukbari P.S. Case No. 36/16 wherein notice u/s 41A was serve upon them with a

direction to appear before the I.O. on 12.06.2016 and accordingly they appeared before the I.O. The allegation of absconding is a false pretext on the

part of I.O. and particularly on 21.03.2017, the I.O. could have avoided their arrest as they themselves went to the Police Station in connection with

Jalukbari P.S. Case No. 216/17, which proved the malafide intention of the I.O. and he has committed illegality by arresting the petitioner without

serving any notice u/s 41A Cr.P.C. It is also denied that Police Officers at no point of time approached to the petitioner for serving any notice.

I have heard the submission of learned counsel for the petitioner, Mr. Sahewala and the learned counsel, D. Talukdar, appearing on behalf of the

respondent.

From the affidavit of the respondent as well as the affidavit-in-reply filed by the petitioner, it is discernible that there are as many as four cases

have been registered against the accused and his other family members and according to the I.O./the respondent, the petitioner was found absconding

in all the cases filed earlier (except in one case notice was served) and hence the accused petitioner was arrested by the respondent I.O as per

direction of the superior authority. It is also noticed that while producing the accused before the Court, the I.O. has assigning reasons for not serving

the notice u/s 41A Cr.P.C. in the forwarding report that because of absconding of the accused in other connected cases he has been arrested,

otherwise he may abscond again.

The petitioner however, denied the allegation of absconding and thus the whole aspect became very much disputed. As it appears the I.O. of the

case overwhelmed by the several cases filed against the petitioner to arrest him in view of such serious allegations against the petitioner and finally he

was arrested as directed by his superior officer. It cannot be denied that a police officer is to obey the direction of his superior officer while

conducting a case but however one cannot also be excused for not following the mandate of law. A Police Officer is to obey the law in the strict

sense, without being persuaded any sort of element either subjective or objective. A person whatsoever may be criminal, is to be brought under the

law as per due procedure, not as per whims.

In Arnesh Kumar (supra) the Hon’ble Supreme Court has depreciated the conduct of Police Officer for effecting arrest without warrant.

Direction has been issued that Police Officer shall not arrest unnecessarily in all such cases where offence is punishable with imprisonment for a term

which may be less than 7 years or which may be extended to 7 years. However, considering the submission of the learned counsel for both the parties

as well as the prayer of the respondent for unconditional apology and the given background of the case and also considering the conduct of the

respondent while arresting the accused petitioner as per direction of the superior officer, the present petition now closed with a caution to the

petitioner to follow the principle and guideline as pronounced by the decision of Arnesh Kumar (supra) without fail henceforth.