Prayag Dev Singh @ Nanku Singh and another vs State of U.P.and others

Shri Narayan Shukla and Shiv Charan Sharma, JJ.—Heard Mr. Suresh Chandra Srivastava, learned Counsel for the petitioners as well as the learned Additional Government Advocate on behalf of the opposite parties 1 and 2. Issuance of notice to opposite party No. 3 is hereby dispensed with in the interest of justice.

The petitioner has challenged the First Information Report dated 27th of May, 2008, lodged by the opposite party No. 3 against the petitioners, which has been registered as case crime No. 735 of 2008, under sections 354, 323, 504, 427, 452, 506 IPC & 3(1)(x) S.T./S.T. Act in Police Station Sonwa, district Srawasti mainly on the ground that the same is based on the frivolous and concocted story and it does not disclose any offence to have been committed by the petitioner. Further the petitioners have prayed for granting an interim direction to the opposite parties not to arrest the petitioners on the basis of the aforesaid First Information Report.

We have perused the First Information Report and after perusal of the same we are prima facie satisfied that the First Information Report discloses the offence to have been committed by the petitioners, we are not inclined to interfere in the matter, however, on the matter of arrest we are not oblivious with the fact that often false and frivolous FIRs are lodged and the innocent person has to go to jail which greatly damages his reputation in the society because unfortunately whenever an FIR is lodged the Police immediately goes to arrest the accused. The Full Bench of this Court in the case of Amrawati and another (Smt.) v. State of U.P., 2004 (50) ACC 742 (FB) has held that such an arrest is illegal as it is against the decision of the Supreme Court rendered in the case of Joginder Kumar v. State of U.P. and others. 1994 (31) ACC 431 (SC). This Court in the case of Amrawati (supra) has held that section 157 (1) Cr.P.C. gives a police officer discretion to arrest or not, but this discretion cannot be exercised arbitrarily and it must be exercised in accordance with the principles laid down in Joginder Kumar''s case (supra).

It is quite relevant to reproduce the observations as well as directions issued by the Hon''ble Supreme Court on the matter of arrest in Joginder Kumar''s case (supra), which are as follows:

"20......... 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 lockup of a person can cause incalculable harm to the reputation and selfesteem 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 rights 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."

The aforesaid observations have been made by the Hon''ble Supreme Court for effective enforcement of the fundamental rights guaranteed under Article 21 of the Constitution of India. It is further relevant to reproduce the requirements, which have been directed by the Hon''ble Supreme Court, to be followed for effective enforcement of fundamental rights guaranteed under Articles 21 and 22(1) of the Constitution of India, which are as follows:

"1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.

The police officer shall inform the arrested person when he is brought to the police station of this right.

An entry shall be required to be made in the dairy as to who was informed of the arrest."

The Hon''ble Supreme Court has further observed that it shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with and the above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various police manuals.

The Hon''ble Supreme Court recently in the case of Som Mittal v. Government of Karnataka, 2008 (60) ACC 1021 (SC) by following its decision rendered in the case of Joginder Kumar (supra) has further observed as follows:

"42. Despite this categorical judgment of the Supreme Court it appears that the police is not at all implementing it. What invariably happens is that whenever an FIR of a cognizable offence is lodged the police immediately goes to arrest the accused person. This is clear violation of the aforesaid judgment of the Supreme Court."

In light of the aforesaid observations/directions issued by this Court as well as by the Hon''ble Supreme Court on the matter of arrest the writ petition is finally disposed of with the direction to the police officer concerned to strictly follow and implement the directives issued by this Court as well as by the Hon''ble Supreme Court in its decisions, referred to herein above, on the matter of arrest.