Allahabad High Court
Sheel Prakash Gupta vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 1 April, 2022
Author: Rakesh Srivastava
Bench: Rakesh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 9 Case :- CRIMINAL MISC. WRIT PETITION No. - 1678 of 2022 Petitioner :- Sheel Prakash Gupta Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home, Lko. And Others Counsel for Petitioner :- Vivek Kumar Srivastava Counsel for Respondent :- G.A. Hon'ble Rakesh Srivastava,J.
Hon'ble Ajai Kumar Srivastava-I,J.
The First Information Report (FIR) dated 10.03.2022 registered as Case Crime No. 0182 of 2022, under Section 147, 353, 341, 188 IPC and under Section 7 of the Criminal Law Amendment Act, 2013 at Police Station Kotwali City, District Hardoi is under challenge in the present writ petition. The petitioner has also sought for stay of his arrest in the said case.
Heard Shri Vivek Kumar Srivastava, learned counsel for the petitioner and Sri Ganesh Gupta, learned Additional Government Advocate appearing for the State-respondents.
We have gone through the First Information Report. The allegations made therein prima facie disclose commission of a cognizable offence and as such, the same cannot be quashed. The writ petition lacks merit and is liable to be dismissed.
At this stage, learned counsel for the petitioners has submitted that the offence allegedly committed entails a fine and a maximum imprisonment of seven years. As such, he prays that instead of arresting the petitioner in a routine manner, the investigating officer be directed to take recourse to the procedure provided under Section 41-A of the Code of Criminal Procedure 1973 ("Code").
Section 41 of the Code deals with the power of the police officer investigating the commission of a cognizable offence, to arrest a person without an order from the Magistrate and without a warrant.
A perusal of Section 41 shows that there is no absolute bar against arresting a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend up to seven years with or without fine. Section 41(1)(a), however, provides that an investigating officer shall not arrest a person accused of such offences in a routine manner and the arrest be made, only after following the restrictions imposed under Section 41(1)(b).
In Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, the Apex Court, while dealing with the power of the police to arrest a person under Section 41 of the Code, has held that the said power is to be exercised only after the conditions enumerated in the said Section are satisfied.
Paragraphs 7.1, 7.2 and 7.3 of the said report being relevant are extracted below:
"7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of thecase; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.
7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest.
7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC."
(emphasis supplied) Thus, it is mandatory on the part of the investigating officer to record reasons for making an arrest as well as for not making an arrest in respect of a cognizable offence for which the maximum sentence is up to seven years.
Where, however, arrest is not required to be made under Sub-Clause (1) of the amended Section 41 of the Code, the police is bound to issue a notice of appearance to the accused person. Even in such a case, failure to comply with the notice of appearance or unwillingness to identify himself may be grounds for the police to arrest a person to whom a notice under Section 41-A of the Code has been issued.
Learned Additional Government Advocate, on the basis of instructions, states that the provisions of Section 41 and 41-A of the Code would be scrupulously complied with by the investigating officer.
The statutory protection under Section 41 and 41-A of the Code is already available, which the police authorities are bound to comply in this case also.
With the aforesaid observation, the Writ Petition stands disposed of.
Order Date :- 1.4.2022 Anurag (Ajai Kumar Srivastava-I,J.) (Rakesh Srivastava,J.)