Allahabad High Court
Jamuna Prasad vs State Of U.P.Through Prin.Secy.Home ... on 29 April, 2020
Bench: Pankaj Kumar Jaiswal, Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?In Chamber Case :- MISC. BENCH No. - 7949 of 2020 Petitioner :- Jamuna Prasad Respondent :- State Of U.P.Through Prin.Secy.Home Lucknow And Ors. Counsel for Petitioner :- Karunesh Singh Counsel for Respondent :- G.A Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Karunesh Singh Pawar,J.
When the matter was taken up through Video Conferencing, learned Counsel for the petitioner and learned AGA for the State appeared.
Heard Mr. Karunesh Singh, learned counsel for the petitioner and Ms. Nand Prabha Shukla, learned AGA for the respondents State.
The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report No. 0072 of 2019, under Section 3/7 of Essential Commodities Act and Section 5 of Disaster Management Act, Police Station Naseerabad, District Raebareli.
Learned counsel appearing for the State submits that the offence(s) allegedly committed entail a sentence up to seven years. In such circumstances, the investigating officer shall ensure compliance of provisions of Section 41 and Section 41-A of the Code of Criminal Procedure as provided by Hon'ble Supreme Court of India in Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273.
The following relevant portion of the judgment of Arnesh Kumar's case (supra) is reproduced as under :
"9. Another provision i.e. Section 41A Cr.PC aimed to avoid unnecessary arrest or threat of arrest looming large on accused requires to be vitalised. Section 41A as inserted by section 6 of the Code of Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant in the context reads as follows:
41A. XX X X X X The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.
10. X X X X X X
11. Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:
(11.1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
(11.2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
(11.3) 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;
(11.4) 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;
(11.5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
(11.6) Notice of appearance in terms of Section 41-A of Cr.PC 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;
(11.7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
(11.8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is 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."
(Emphasised by us) Learned counsel for the petitioner submits that let the petition be disposed of while giving direction in terms of judgment rendered by Hon'ble Supreme Court of India in Arnesh Kumar's case (supra).
We hereby direct that the investigating officer of the case would comply with the assurance given by learned counsel for the State in terms of judgment rendered by Hon'ble Supreme Court of India in Arnesh Kumar's (supra), relevant portion of which has been extracted above.
With the aforesaid, the petition is disposed of.
(Karunesh Singh Pawar, J.) (Pankaj Kumar Jaiswal, J.) Order Date :- 29.4.2020 Ajit/-