Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Gautam Chowdhary, JJ., gave certain directions to be followed by the police officers before making arrests in cases registered under Section 498-A of Penal Code, 1860.
Factual Matrix
The marriage of respondent 4’s daughter was fixed with petitioner 1 and Rupees 6.5 lakhs were given to the petitioners by respondent 4. Petitioners had also demanded a Creta Car and stated that if said demand could not be fulfilled then they would not solemnize the marriage.
Petitioners Counsel submitted that the marriage of daughter of respondent 4 was fixed with the petitioner 1 and after the ring ceremony, respondent 4 with the ulterior motive, demanded money from the petitioners for solemnizing the marriage and stated that if the same was not fulfilled then petitioners would be falsely dragged in a criminal case.
Under provisions of Sections 204, 41(1)(b), 41(1)(b)(ii)(e), 41(a) of the CrPC, police cannot arrest the petitioners without giving notice and without collecting any credible evidence against the petitioners.
Decision
Bench explained the import and meaning of the amended provisions Section 41(I)(b) and 41 A CrPC.
Police still routinely in many cases proceeds to arrest the 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 CrPC.
High Court also referred to the Supreme Court decision in Social Action Forum for Manav Adhikar v. Union of India, Writ Petition (Civil) No. 73 of 2015 with Criminal Appeal No. 1265 of 2017 Writ Petition (Criminal) No. 156 of 2017.
Further, the Court was pained to note that regularly petitions are filed where the offence committed would be for lesser period than 7 years or maximum punishment would be 7 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.
Bench gave 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 CrPC 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
- 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.
[Vimal Kumar v. State of U.P., 2021 SCC OnLine All 83, decided on 28-01-2021]