MANU/UP/2596/2017

Equivalent Citation: 2017(5) ALJ 71

IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)

Misc. Bench No. 13511 of 2017
Decided On: 14.06.2017
Appellants: Abdul Hameed and Ors.
Vs.
Respondent: State of U.P. and Ors.
Hon'ble Judges/Coram:
Dr. Devendra Kumar Arora and Dr. Vijay Lakshmi, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Jalaj Kumar Gupta
For Respondents/Defendant: Govt. Adv.
Case Note:
Criminal - Quashing of FIR - Entitlement thereto - Sections 3 and 7 of
Essential Commodities Act, 1955 - Present petition filed seeking quashing
of FIR registered for offences punishable under Section 3 read with 7 of Act
- Whether Petitioner was entitled for quashing of FIR - Held, relying upon
decision of Arnesh Kumar's case wherein it was held that person accused of
offence punishable with imprisonment for term which may be less than
seven years or which may extend to seven years with or without fine could
not be arrested by police officer only on its satisfaction that such person
had committed offence punishable as aforesaid - Petition disposed off as
not pressed. [2]
JUDGMENT
1. The petition seeks issuance of a writ in the nature of certiorari quashing First
Information Report bearing Case Crime No. 88 of 2017, under Section 3/7 of
Essential Commodities Act, Police Station Gosaiganj, District Sultanpur. Learned
counsel appearing for the State states 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
v. State of Bihar MANU/SC/0559/2014 : (2014) 8 SCC 273 : (AIR 2014 SC 2756).
2. We have considered the stand of learned counsel for the State. In Arnesh Kumar's
case (supra) the following (relevant portion) has been held:--
"6. Law Commissions, Police Commissions and this Court in a large number
of judgments emphasized the need to maintain a balance between individual
liberty and societal order while exercising the power of arrest. Police officers
make arrest as they believe that they possess the power to do so. As the
arrest curtails freedom, brings humiliation and casts scars forever, we feel
differently. We believe that no arrest should be made only because the
offence is non-bailable and cognizable and therefore, lawful for the police

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officers to do so. The existence of the power to arrest is one thing, the
justification for the exercise of it is quite another. Apart from power to
arrest. the police officers must be able to justify the reasons thereof. No
arrest can be made in a routine manner on a mere allegation of commission
of an offence made against a person-It would be prudent and wise for a
police officer that no arrest is made without a reasonable satisfaction reached
after some investigation as to the genuineness of the allegation. Despite this
legal position, the Legislature did not find any improvement. Numbers of
arrest have not decreased. Ultimately, the Parliament had to intervene and on
the recommendation of the 177th Report of the Law Commission submitted
in the year 2001, Section 41 of the Code of Criminal Procedure (for short
Cr.P.C), in the present form came to be enacted. It is interesting to note that
such a recommendation was made by the Law Commission in its 152nd and
154th Report submitted as back in the year 1994. The value of the
proportionality permeates the amendment relating to arrest.
7. ..............
7.1 From a plain reading of the aforesaid provision, it is evident that a
person accused of 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 its 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 the case: 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 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. 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 of Cr.P.C.
8 . An accused arrested without warrant by the police has the constitutional
right under Article 22(2) of the Constitution of India and Section 57, Cr.P.C.
to be produced before the Magistrate without unnecessary delay and in no
circumstances beyond 24 hours excluding the time necessary for the journey.

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8.1 During the course of investigation of a case, an accused can be kept in
detention beyond a period of 24 hours only when it is authorised by the
Magistrate in exercise of power under Section 167, Cr.P.C. The power to
authorise detention is a very solemn function. It affects the liberty and
freedom of citizens and needs to be exercised with great care and caution.
Our experience tells us that it is not exercised with the seriousness it
deserves. In many of the cases, detention is authorised in a routine, casual
and cavalier manner.
8.2 Before a Magistrate authorises detention under Section 167, Cr.P.C., he
has to be first satisfied that the arrest made is legal and in accordance with
law and all the constitutional rights of the person arrested is satisfied. If the
arrest effected by the police officer does not satisfy the requirements of
Section 41 of the Code. Magistrate is duty bound not to authorise his further
detention and release the accused. In other words, when an accused is
produced before the Magistrate, the police officer effecting the arrest is
required to furnish to the Magistrate, the facts, reasons and its conclusions
for arrest and the Magistrate in turn is to be satisfied that condition
precedent for arrest under Section 41. Cr.P.C. has been satisfied and it is
only thereafter that he will authorise the detention of an accused.
9 . Another provision i.e. Section 4-A, Cr.P.C. aimed to avoid unnecessary
arrest or threat of arrest looming large on accused requires to be vitalised.
Section 41-A 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:
"41-A. Notice of appearance before police officer.--
(1) The police officer shall, in all cases where the arrest of a
person is not required under the provisions of sub-section
(1) 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 at 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 that 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.
(4) Where such person, at any time, fails to comply with the
terms of the notice or is unwilling to identify himself, the
police officer may, subject to such orders as may have been
passed by a competent Court in this behalf, arrest him for
the offence mentioned in the notice."

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The aforesaid provision makes it clear that in all cases where the arrest of a
person is not required under Section 41(1). Cr.P.C. 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 office is of the opinion that the arrest is necessary. At
this stage also, the condition precedent for arrest as envisaged under Section
41 Cr.P.C. has to be complied and shall be subject to the same scrutiny by
the Magistrate as aforesaid.
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.P.C.;
(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.P.C. 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

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 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."
(Emphasized by us)
3 . Considering the stand taken by learned counsel for the State in context of
judgment rendered by the Hon'ble Supreme Court of India in Arnesh Kumar's case
(MANU/SC/0559/2014 : AIR 2014 SC 2756) (supra), relevant portion from which has
been extracted above, learned counsel for the petitioner(s) states that let this petition
be disposed of as not pressed. Petition is disposed of as not pressed.
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