The Allahabad High Court has stayed the arrest of a CRPF personnel, a native of Gorakhpur, posted in Raipur, Chhattisgarh and has sought a reply from the Central and state government in the matter.
The Division Bench of Justice Mahesh Chandra Tripathi and Justice Subhash Vidyarthi passed this order while hearing a Criminal Misc Bail Application filed by Kailash Nath Upadhyay.
The petition, under Article 226 of Constitution of India, is questioning the validity of the arrest warrant dated June 19, 2021, whereby the Chief Judicial Magistrate-cum-Commandant, 65 Battalion, CRPF, Baradera Camp, Chadrakhuri Road, District Raipur (Chhattisgarh) has charged Force CT/GD Kailash Nath Upadhyay (petitioner) with the offence of wilful absence from June 19, 2021, which is an offence punishable under Section 10 (m) of the Central Reserve Police Force Act, 1949, and directed the Senior Superintendent of Police, District Gorakhpur, UP to arrest the petitioner and to produce him without failure.
S.P. Singh, Additional Solicitor General of India, appearing for the respondents has raised a preliminary objection regarding maintainability of the petition on the ground that the whole cause of action arises at Raipur in the State of Chhattisgarh and Raipur is not under the territorial jurisdiction of the Court. The action of the Commandant, 65 Battalion, CRPF at Raipur is under challenge and therefore, the Court has no territorial jurisdiction.
The contention of the petitioner, that he is resident of Gorakhpur accrues cause of action partially, may not be correct and the writ petition is liable to be dismissed.
In response thereof, Anoop Trivedi, Senior Advocate appearing for the petitioner, has vehemently contended that the petitioner is permanent resident of Village Kesawpurawa, Post Office Sahajanwa, District Gorakhpur. He is working as Constable/GD in 65 Battalion, CRPF at Raipur, Chhattisgarh. He applied for and was duly sanctioned 15 days leave by the Competent Authority for personal reasons.
During the leave period, he fell seriously ill and is under treatment at Patel S.M.H. Hospital and Paramedical College Gotva, Katya, District Basti. The petitioner has communicated the same to the competent authority by registered post on June 21, 2021. By the warrant of arrest dated June 19, 2021 the Commandant has directed the Senior Superintendent of Police, Gorakhpur to arrest the petitioner and to produce him before him.
Senior Counsel appearing for the petitioner further makes submission that the petition is preferred under Article 226 of Constitution of India and as such, the cause for filing the petition was within the territorial jurisdiction of the Court.
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Moreover, the alleged offence is punishable with imprisonment of one year, therefore, the authorities are bound to follow the procedure laid down under Section 41-A CrPC. In this regard, he has placed reliance on the judgement of the Court dated January 28, 2021 in which guidelines have been framed following the judgement of the Apex Court in different cases, relating to offences providing punishment of seven years or less.
The Court noted that, it is apparent from the order-sheet, which is appended along with the Warrant of Arrest dated June 19, 2021 to the petition, that in the mater, the complaint in question was lodged against the petitioner letter dated June 19, 2021 for issue of warrant of arrest under Section 10 (m) of the Act and the Commandant has proceeded to pass the order on the same date i.e. June 19, 2021 on the ground that the petitioner deserted himself from the June 19, 2021 without any permission of competent authority and not yet reported back. He is not likely to report back for duty on his own unless legal procedure, take cognizance of offence committed by him under Section 10 (m) of the Act.
The Court observed that the said action is bad and unsustainable as the impugned warrant of arrest straightaway has been passed under Section 10 (m) of the Act, which provides that every member of the Force, who absents himself without leave, or without sufficient cause overstays leave granted to him, shall be punishable with imprisonment for a term, which may extend to one year, or with fine which may extend to three months’ pay, or with both. Moreover, the Act, 1949 as well as Rules, 1954 provide a full mechanism for charging and arresting the incumbent.
“All the respondents may file a counter affidavit within four weeks. The petitioner will have one week thereafter to file a rejoinder affidavit. Considering the facts and circumstances of the case, as an interim measure, it is provided that till the next date of listing, the petitioner shall not be arrested pursuant to the warrant of arrest dated June 19, 2021 provided he reports to his unit i.e. 65 Battalion, CRPF. at Raipur, Chhattisgarh within ten days. In case the petitioner fails to report to his unit within the time as stipulated above, the interim order shall stand automatically vacated. However, the authority would be at liberty to proceed in the matter strictly as per provisions contained in the Act and Rules, 1955,”
-the court ordered.