The Allahabad High Court has stayed the arrest of minor children of an advocate resident of Kalindipuram District Prayagraj.
The Division Bench of Justice Rahul Chaturvedi and Justice Nand Prabha Shukla passed this order while hearing a petition filed by Rishikesh Tripathi @ Rishikesh Pati Tripathi and 4 Others.
By means of the petition under Article 226 of the Constitution of India, the petitioners are assailing the legality and validity of FIR dated 25.01.2024, registered as Case under Sections 147, 323, 504, 506 I.P.C, Police Station Dhoomanganj, District Prayagraj.
There are five petitioners. The petitioner no 1/Rishikesh Tripathi @ Rishikesh Pati Tripathi, a practicing advocate of the Court.
The Court noted that there the petitioner children are minors and they cannot be accused.
To the utter surprise of the Court, they have also made accused in Case, Police Station Dhoomanganj, District Prayagraj Commissionerate by Smt Madhuri Dwivedi (respondent no 4) for the alleged incident which took place on 23.1.2024.
The Court observed that,
From the entire reading of the FIR, there is not a whisper regarding the previous animosity or any ill mens rea in the FIR. All of sudden without any rhyme or reason this incident has occurred, but fact remains, that FIR was registered under Sections 147, 323, 504, 506 I.P.C and all are punishable less than 7 years.
It is also from the record that this is a cross case lodged by the petitioners as Case Crime under Sections 323, 504, 435 IPC, Police Station Dhoomanganj, Prayagraj Commissionerate. The FIR is counter productive in order to nullify/neutralize the earlier Case.
Counsel for the petitioners submitted that the allegations made against the petitioners in the F.I.R are with malafide intention and after exaggerating the incident.
The petitioner’s counsel has contended that all the offences levelled against the petitioner is punishable up to 7 years or less than 7 years, but the police is hotly chasing the petitioner.
The Court observed that taking into account the totality of the facts and circumstances of the case and the in the light of the ratio laid down by the Apex Court in the cases of Arnesh Kumar and Md Asfak Alam (supra), the freedom of the petitioner is protected, the court provided if the I.O of the case gives notice to him as provided under Sections 41 and 41(A) of Cr.P.C and summon the petitioner in the case, petitioner is obliged to render his fullest cooperation in the investigation.
The Court clarified that if some credible material is brought on record during investigation against the petitioner, then only the I.O of the case after recording its reason may affect the arrest of the petitioner, strictly adhering to the guidelines provided in aforementioned cases of the Supreme Court.
The Court directed that the I.O of the case shall gear up the investigation and conclude the same preferably within a period of 60 days from today and submit its report u/s 173(2) Cr.P.C. in the court of concerned Magistrate.
It is incumbent upon the petitioners to participate in the investigation and the Court further directed the Investigating Officer to conclude the investigation within 60 days after strictly adhering to the aforementioned process as contemplated in Arnesh Kumar’s case.
“However, it is made clear that the Court is protecting the interest of petitioners no 3, 4 and 5 two girls and a minor son and they shall not be arrested till further orders of this Court irrespective of the report u/s 173(2) CrPC.
The petitioners have expressed their certain misgivings and suspicion about the impartiality of the Station House Officer, Dhoomanganj, District Prayagraj.
Under such circumstances, we direct the Commissioner of Police Prayagraj Commissionerate, District Prayagraj to transfer the investigation of the case to some other police station at Allahabad Commissionerate and entrust some new Investigating Officer of C.O rank to conduct the investigation fairly, impartially and in most professional way within the specified time”, the order reads.
With the aforesaid observations, the Court disposed of the petition.