The Allahabad High court while explaining the meaning of the amended provisions 41(I)(b) and 41 A Cr.P.C has passed the several directions to stop the routinely and arbitrary arrest of accused involved in offences punishable with up to 7 years imprisonment.
The Applicant has approached the court and prayed to issue a writ order or direction in the nature of certiorari quashing the impugned First Information Report lodged against petitioner under sections 498-A IPC and section ¾ Dowry Prohibition Act, at Police Station Kotwali Nagar, District Etah.
It has submitted by counsel on behalf of the petitioners that the marriage of daughter of respondent (Priynka) was fixed with the petitioner and after Ring ceremony respondent with the ulterior motive, demanded money from the petitioners for solemnizing the marriage with her daughter with petitioner 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.
It has further submitted by 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. 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 cannot arrest the accused.
The Division Bench comprised of Justice Dr. Kaushal Jayendra Thaker and Justice Gautam Chowdhar while explaining the import and meaning of the amended provisions 41(I)(b) and 41 A Cr.P.C has noted that,
“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. 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.”
The court has also directed 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.
The court has also directed to the Sessions District Judges to impress upon the remand Magistrates not to routinely grant remand of accused to police officers seeking remand for accused if the preconditions 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 court has further directed the Registrar General to 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.
Case details:
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.
Bench: Justice Dr. Kaushal Jayendra Thaker and Justice Gautam Chowdhar
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