SHRINIVASH PAUL Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Heard Mr. Samdarsh Nirankari holding the brief of Mr. M.L. Saket, learned counsel for the petitioner and Mr. Avinash Singh, learned Panel Lawyer, appearing for the State/respondent No. 1 & 2.

(2.) The instant writ petition has been filed by the petitioner being aggrieved by the order dtd. 26/10/2018 passed by the City Magistrate, Jagdalpur, District Bastar (C.G.) in Misc. Appeal Case No. 634/2018 for offence under Sec. 41(2) / 110 of Code of Criminal Procedure, whereby, looking to the petitioner being habitual offender and history sheeter, it was ordered to put the petitioner behind the bar. The petitioner prays for quashing the proceeding initiated under Sec. 110, 116 and 41(2) of Cr.P.C. by learned Magistrate in Case No. 634/2018 and to take strict action against Mr. A. Kujur, Incharge, Police Station Kotwali, District Bastar (C.G.)

(3.) Learned counsel for the petitioner submitted that the petitioner has been illegally arrested under Sec. 41(2) of Cr.P.C. by Mr. A. Kujur, Thana Incharge, Police Station Kotwali, Jagdalpur, whereas arrest made under Sec. 41(2) was amended by legislature and was came in effect from 1/11/2010 before amendment arrest under Ss. 110 and 116 can be made under the said Sec. but after amendment the power under Sec. 41(2) was removed, therefore, whole proceedings is illegal. He further submits that it is necessary to issue show cause notice against the person before initiating any proceedings and after the defence it was found that prima facie case is made out after investigation order should be passed. He further submits that the petitioner is a disable person and been harassed by the police person on false previous cases and does not fall in the category of habitual offender and threat to society and may disturb the peace. He further submits that habit of making complaint to the police about the offence is the reason mentioned by the police officer in his istagasha cannot be made ground for such proceedings.