The Allahabad High Court on 28th January, 2021 directed the Uttar Pradesh government and Magistrates in the State to stringently comply with Section 41 of the Code of Criminal Procedure (CrPC), expressing pain over routine and unnecessary arrests made for offences punishable up to 7 years (Vimal Kumar and three Ors v. State of Uttar Pradesh).
A Bench of Justices Kaushal Jayendra Thaker and Gautam Chowdhary was dealing with a case involving allegations of dowry and false implication in criminal cases under the Indian Penal Code (Section 498-A, IPC).
In the course of considering the case, the Court observed that the police were overlooking Section 41 (1)(b) (detailing conditions where an arrest is necessary) and Section 41A (where arrest can be avoided and notice for appearance issued instead).
"We have been pained to note that regularly petitions are filed where the offence committed would be for a lesser period then seven years or maximum punishment would be seven years and they routinely bring by way of writ petition scrap of being arrested. The provision of Section 41-A were incorporated of this purpose only that concerned who is not charged with heinous crime does not require and whose custody is not required may not face arrest", the Court said.
The Writ Petition, in this case, challenged a First Information Report filed under section 498-A, IPC and Sections 3 and 4 of the Dowry Prohibition Act.
The Court was told that a marriage was fixed between the petitioner and the daughter of the fourth respondent. The FIR stated that the petitoners had demanded a car from the respondents for the solemnisation of the marriage, leading to the filing of a criminal complaint.
On the other hand, the petitioners asserted before the Court that it was the woman's family who demanded money from the petitioner's family to solemnise the marriage, failing which the petitioners were threatened with being dragged into a criminal case.
The Court was also told that the police had been constantly visiting the petitioners' house, despite the fact that all the offences alleged were punishable with incarceration below 7 years.
The Court observed:
“We think that in many cases the police is still routinely proceeding to arrest accused persons even if they are involved in offences punishable with up to 7 years imprisonment, in contravention of the express terms of Section 41(I)(b) or 41 A Cr.P.C.”
In view of the observations laid down in various cases, the Bench proceeded to emphasise that even where an accused surrenders before a remand court, bail should not be refused mechanically, especially “in short sentence cases punishable with up to 7 years imprisonment, unless the allegations are grave and there is any legal impediment in allowing the bail.”
Deliberating on the true intention behind the criminal law amendment which brought in Section 41-A to 41-D, the Bench has now issued the following directions to the State and concerned Magistrates:
The State Government is to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered. Rather, the police should satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41-A of CrPC.
All police officers should be provided with a checklist containing specified sub-clauses under Section 41(1)(b)(ii) (on the conditions where the police feels that arrest is necessary);
The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention.
The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer, and only after recording its satisfaction, the Magistrate will authorise detention;
Notice of appearance in terms of Section 41-A CrPC should be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
A.F.R.
Court No. - 49
Case :- CRIMINAL MISC. WRIT
PETITION No. - 17732 of 2020
Petitioner :- Vimal Kumar And 3 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ajay Vikram Yadav Counsel for
Respondent :- G.A.
Hon'ble Dr.
Kaushal Jayendra Thaker,J. Hon'ble
Gautam Chowdhary,J.
Per - Hon’ble Gautam Chowdhary, J.
Heard learned counsel for the petitioners and learned A.G.A. for the State.
This writ petition has been filed by the petitioners with the following prayers:
(I) issue a writ
order or direction in the nature
of certiorari quashing the impugned First
Information Report dated 28.11.2020 lodged by respondent No. 4 in case crime
No. 824 of 2020, under sections 498-A IPC and section ¾ Dowry Prohibition Act, Police Station
Kotwali Nagar, District Etah.
(II) issue a writ order or direction in the nature of
mandamus commanding the respondents not to arrest the petitioners in case crime
No. 824 of 2020, under sections 498-A IPC and section
¾ Dowry Prohibition Act, Police
Station Kotwali Nagar, District Etah.
(III) issue any other writ order or direction In the like nature which
this Hon’ble Court may deem fit and proper in the circumstances of the case.
(IV)
award the costs of the writ
petition to the
petitioners.
The brief facts of this case are that the marriage of daughter of respondent no. 4 namely Priyanka was fixed with the petitioner No. 1 by which on 7.6.2020 the Ring ceremony was held and during this period about
6.5 lacs rupees was given by the respondent no. 4 to the petitioners. It is further alleged that on 25.11.2020 all the petitioners demanded a Creta Car and stated if said demand could not be fulfilled then they would not solemnize the marriage.
It is submitted by learned counsel for the petitioners that the marriage of daughter of respondent no. 4 was fixed with the petitioner no. 1 and after Ring ceremony respondent no. 4 with the ulterior motive, demanded money from the petitioners for solemnizing the marriage with her daughter with petitioner no. 1 and stated that if the same was not fulfilled then petitioners would be falsely dragged in a criminal case, present malicious prosecution has been launched by the respondent no. 4.
It is next submitted by learned counsel for the petitioner that all the offences are punishable with incarceration below 7 years but the police of concerned police station is regularly visiting the house of petitioners under the influence of respondents No. 4. It is further submitted that under the provisions of Sections 204, S41(1)(b), S.41(1)(b)(ii)(e), S.41(a) of the Cr.P.C. police cannot arrest the petitioners without giving notice and without and without collecting any credible evidence against the petitioners the police can not arrest the accused.
Learned counsel for the petitioners has invited our attention
to the provisions embodied in sections 204, S41(1)(b), S.41(1)(b)(ii)(e),
S.41(a) of the Cr.P.C. the judgment
of this Court in 2011 0 Supreme (All) 2785 (Shaukin Vs. State Of U.P. and Others) has been relied and has placed
reliance on Social Action
Forum for Manav Adhikar
and another Vs. Union of India, Ministry of law and Justice and others passed
in Writ Petition (Civil)
No. 73 of 2015.
We proceed to explain the import and meaning of the amended provisions 41(I)(b) and 41 A Cr.P.C., and to give some illustrations where accused could be arrested straightaway on the lodging of the FIR, and other illustrations where immediate arrests may not be
needed, because we think that in many cases the police is still routinely proceeding to rrest accused persons even if they are involved in offences punishable with up to 7 years imprisonment, in contravention of the express terms of Section 41(I)(b) or 41 A Cr.P.C.
7. It would be useful to extract the material provisions, Section 41(I)
(b) or 41 A, which have been introduced by Act No. 5 of 2009, with effect from 1.11.2010 an also section 170(I) of the Code of Criminal Procedure, here:
41. When police may arrest without warrant.--(I) Any police officer may without an order from a Magistrate and without a warrant, arrest any person------------
(a)---------------------
(b)
against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable suspicion exists that
he has committed a cognizable offence punishable with imprisonment for a term
which may be less than seven years or which may extend to seven years whether
with or without fine, if the following conditions are satisfied, namely:
(I) the police
office has reason to believe on the basis of
such complaint, information, or suspicion that such person has committed
the said offence;
(ii) the police office is satisfied that such arrest is necessary----
(a) to prevent such person from
committing any further offence; or
(b) for proper investigation of
the offence; or
(C) to prevent such person from causing the evidence of te offence to disappear or tampering with such evidence in any manner: or
(d) to prevent
such person from making any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade him from disclosing
such facts to the Court or to the police officer: or
(e) as unless
such person is arrested, his presence in the Court whenever required cannot be ensured,
and the police officer shall record while making such arrest, his reasons in writing.
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section record the reasons in writing for not making the arrest.
41 A. Notice of appearance before police officer.-- (I) The police officer shall in all cases, where the arrest of a person is not required under the provisions of sub-section (I) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or a such other place as may be specified in the notice.
(2)
Where such a notice is issued to any person, it shall
be the duty of the person to comply with the terms of the notice.
(3) Where such
person complies and continues to comply with the notice, he shall not be
arrested in respect of the offence referred to in the notice unless, for
reasons to be recorded, the police officer is of the opinion that he ought to
be arrested.
Moreover, reliance on the judgements dated 04.09.2018 passed
by Apex Court in the case of Social Action Forum
for Manav Adhikar Vs. Union of India,
Ministry of Law and Justice
and others in Writ Petition (Civil) No. 73 of 2015 with
Criminal Appeal No. 1265 of 2017 Writ Petition
(Criminal) No. 156 of 2017.
In which Hon’ble Supreme Court has also issued directions:
20. We, therefore, direct the Magistrates/ Police authorities that
when accused alleged with offence punishable up to 7 years imprisonment are
produced before them remands may be granted to accused only after the Magistrate satisfies himself that the application for remand
by the police officer has been made in a bona fide manner and the reasons for seeking remand mentioned in the case diary are in accordance with the requirements of Section 41(I) (b) and 41 A Cr.P.C., and there is concrete material in existence to substantiate the ground mentioned for seeking remand. Even where the accused himself surrenders or where investigation has been completed and the Magistrate needs to take the accused in judicial custody as provided under Section 170(I) and Section 41(I)(b)(ii)(e) Cr.P.C. prolonged imprisonment at this initial stage, where the accused has not been adjudged guilty may not be called for, and the Magistrate and Sessions Courts are to consider the bails expeditiously and not to mechanically refuse the same, especially in short sentence cases punishable with upto 7 years imprisonment unless the allegations are grave and there is any legal impediment in allowing the bail, as laid down in Lal Kamlendra Prap Singh Vs. State of U.P. (2009) 4 SCC 437, and Sheoraj Singh @ Chuttan Vs. State of U.P. and others, 2009(65) ACC 781. The facility of releasing the accused on interim bail pending consideration of their regular bails may also be accorded by the Magistrates and Sessions Judges to appropriate cases.
21.
The Magistrate may also furnish information to the
Registrar of the High Court through the District Judge, in case he is satisfied
that a particular police officer has been persistently arresting accused in
cases punishable with upto 7 year terms, in a mechanical or mala fide and
dishonest manner, in contravention
of the requirements of sections 41(1)(b) and 41 A, and thereafter the matter
may be placed by the Registrar in this case, so that appropriate directions may
be issued to the DGP to take action against such errant police officer for his
persistent default or this Court may initiate contempt proceedings against the
defaulting police officer.
22.
The Sessions District Judges should also be directed
to impress upon the remand Magistrates not to routinely grant remand of accused
to police officers seeking remand for accused if the pre- conditions for
granting the remands mentioned in sections 41(1)(b) and 41 A Cr.P.C. are
not disclosed in cases punishable with 7 year terms, or where the police
officer appears to be seeking remand for an accused in a mala fide manner in
the absence of concrete material. The issue of compliance with sections 41(1)(b) and 41 A Cr.P.C and
the directions of this Court in this regard may also be discussed in the
monthly meetings of the District Judges with the administration and the
superior police officials.
23.
We are also of
the view that the Registrar General may issue a circular within a period of one
month with directions to the Sessions Courts and Magistrates to monitor and
oversee the applications for remand sought by the arresting police officers and
to comply with the other directions mentioned herein above.
25.As already indicated above we are of the view that by routinely mentioning in the case diary that a particular condition referred to in sections 41(1)(b) or 41 A Cr.P.C. has been met for seeking police remand, would not provide adequate reason for effecting the arrest. The DGP is also directed to circulate the present order to all subordinate police officers.
We have been pained to note that regularly petitions are filed where the offence committed would be for a lesser period then seven years or maximum punishment would be seven years and they routinely bring by way of writ petition scrap of being arrested. The provision of Section 41-A were incorporated of this purpose only that concerned who is not charged with heinous crime does not require and whose custody is not required may not face arrest. But we are pained that this provision has not met his avoid purpose.
27.Let a copy of this order be sent to the DGP, U.P., Member Secretary, U.P. SLSA and District Judges in all districts of U.P. for compliance and communication to all the concerned judicial magistrates before whom the accused are produced for remand by the police officers within ten days.
In order to ensure what we have observed above, we give the following directions:
The State Governments to instruct its police officers
not to automatically arrest when a case under Section 498-A IPC is registered
but to satisfy themselves about the necessity for arrest under the parameters
laid down above flowing from Section 41-A of Cr.P.C.
1973.
All police officers be provided with a check list
containing specified sub-clauses under Section
41(1)(b)(ii);
The police officer shall forward the check list duly
filled and furnish the reasons and materials which necessitated the arrest,
while forwarding/producing the accused before the Magistrate for further
detention;
The Magistrate while authorising detention of the
accused shall peruse the report furnished by the police officer in terms
aforesaid and only after recording its satisfaction, the Magistrate will
authorise detention;
11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
While parting we appreciated the efforts made by learned counsel for the petitioners namely Sri Ajay Vikram Yadav who has seriously urged to us that as scribe are not facing what said to case under the dowry prohibition Act as there is still no marriage, but apprehend to arrest. That the police authorities would convey our guidelines not only in this matter but in all the investigations which are to be taken.
A copy be circulated by learned Registrar General to the Law Secretary who shall impress upon all the police stations officers about the same.
We would like to draw the attention of
the police authorities of the State to our order dated 18.01.2021 and the
provisions of section 41-A of the Cr.P.C. Despite
there being warning from the Apex Court in the matter reported in Writ Petition
(Civil) No. 73 of 2015 Social Action Forum for Manav Adhikar
and another Vs. Union of India,
Ministry of law and Justice
and others (Supra)
and in the matter of Anand
Tiwari Vs. State of U.P. and others
passed in Crl. Misc. Writ Petition
No. 17641 of 2020 and Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273 has directed the police authorities
to try the balance between individual liberty and social order.
As the matter is still at the investigating stage and the
section alleges 498-A IPC and section ¾ D.P.
Act which is levelled against all the family members, our recent approach
passed in Crl. Misc. Writ Petition No. 64 of 2021 in Mr. Usha Anuragi
and others Vs. State of
U.P. and others will also be looked into by the court below if the accused applies for bail/ anticipatory bail for such matters if they have imminent danger from the police who may not be adhering to section 41-A Cr.P.C.
Arnesh Kumar Vs. State of Bihar, (2014)
8 SCC 273 (Supra) is
a land mark judgment which has to be followed by police authorities along with
the order passed in Writ Petition (Civil) No. 73 of 2015 Social
Action Forum for
Manav Adhikar and
another Vs. Union of India, Ministry
of law and Justice and others (Supra)
In that view of the matter, this writ petition is partly allowed.
Dated-28.01.2021. RPD/
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