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Case Number

Criminal Misc. Writ Petition No. - 30 of 2022

Disposition

Attorney(S)

: - Anil Kumar, Dr. Pramod Kumar Maurya
: - G.A.

Judges

Rakesh Srivastava
Shekhar Kumar Yadav, JJ.

Acts

Section 41 of the Code,
sub-section (5) of section 356;
provisions of sub-section (1) of section 41,
provisions of Section 41 and 41-A of the Code
Sections 498A, 323, 504, 506 IPC, and Section 3/4 D.P. Act, Police Station
Section 41 and 41-A of the Code
Section 41-A of the Code
Section 41-A of the Code of Criminal Procedure 1973 (Code). 4. Section 41 of the Code
sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.

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Smart Summary

Structured Summary of the Court Opinion

Factual and Procedural Background

The petitioners filed a writ petition seeking a writ of certiorari to quash the First Information Report dated 29.09.2021 and to stay the arrest of the petitioner in Case Crime No. 609 of 2021, registered under Sections 498A, 323, 504, 506 IPC and Sections 3/4 of the D.P. Act at Police Station Thakurganj, District West Lucknow. Counsel for the petitioners and the Additional Government Advocate appeared and made submissions. The court examined the FIR and the statutory framework under Sections 41 and 41-A of the Code of Criminal Procedure, 1973 ("Code"), and referred to the Supreme Court decision in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273.

Legal Issues Presented

Whether the FIR dated 29.09.2021 in Case Crime No. 609 of 2021 discloses a cognizable offence and therefore could be quashed.
Whether the petitioner should be prevented from being arrested routinely and whether the Investigating Officer should be directed to follow the procedure under Section 41-A CrPC (i.e., issuance of notice of appearance) instead of making an immediate arrest.
What legal and procedural safeguards under Section 41 and Section 41-A CrPC apply to arrest in offences punishable with imprisonment up to seven years and how they should be implemented by the police in the present case.

Arguments of the Parties

Petitioners' Arguments

The offence alleged in the FIR carries a maximum imprisonment of seven years (and involves a fine), and therefore the petitioner sought protection from routine arrest and requested that the investigating officer be directed to follow the procedure under Section 41-A CrPC (notice of appearance) rather than effecting immediate arrest.

State-Respondents' / Additional Government Advocate's Position

On instructions, the Additional Government Advocate stated that the investigating officer would scrupulously comply with the provisions of Sections 41 and 41-A CrPC in the investigation of the case.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273	The power of the police to arrest under Section 41 CrPC must be exercised only after the conditions enumerated in that provision are satisfied; before arrest in cases where maximum sentence is up to seven years, the police must be satisfied that arrest is necessary for one or more specified purposes and must record reasons in writing for making or not making an arrest.	The court relied on Arnesh Kumar to hold that the investigating officer must record reasons in writing when deciding to make an arrest or not for offences where the maximum sentence is up to seven years, and must follow the restrictions and safeguards embodied in Sections 41 and 41-A CrPC. The precedent guided the court's conclusion that arrest cannot be routine and must satisfy the statutory requirements.

Court's Reasoning and Analysis

The court proceeded through the following analytical steps, based strictly on the material in the opinion:

Examination of the FIR: The court reviewed the First Information Report and found that the allegations therein prima facie disclose the commission of a cognizable offence; consequently, the FIR could not be quashed at this stage and the writ petition lacked merit on that ground.
Interpretation of Section 41 CrPC: The court set out the text of Section 41 and observed that there is no absolute bar to arresting a person accused of an offence punishable with imprisonment up to seven years. However, Section 41(1)(b) restricts routine arrests in such cases and prescribes conditions which must be satisfied before an arrest is made.
Role of Section 41(1)(b) conditions: The court emphasized that an investigating officer must be satisfied not only that there is reason to believe the accused committed the offence, but also that arrest is necessary for one or more specified purposes (e.g., to prevent further offences, for proper investigation, to prevent tampering with evidence, to prevent inducement/threats to witnesses, or to ensure presence in court), and must record the reasons in writing when making an arrest.
Reliance on Arnesh Kumar: The court referred to Arnesh Kumar (2014) which held that the power of arrest under Section 41 must be exercised only after the conditions in that section are satisfied and that the police must record reasons in writing both when arrest is made and when arrest is not made. The opinion quoted paragraphs 7.1–7.3 of Arnesh Kumar to underline the need for answering the question "why arrest?" and to require written reasons.
Application to Section 41-A: The court explained the operation of Section 41-A CrPC (notice of appearance), noting that where arrest is not required under Section 41(1), the police must issue a notice directing the person to appear; compliance with the notice bars arrest unless reasons are recorded; failure to comply or refusal to identify oneself authorizes arrest under Section 41-A(4).
Assurance from the State: The Additional Government Advocate, on instructions, stated that Sections 41 and 41-A CrPC would be scrupulously complied with by the investigating officer in this case. The court took this assurance into account in directing compliance with statutory protections.
Conclusion from analysis: Given the prima facie cognizable nature of the allegations, the court concluded that the FIR could not be quashed and that statutory safeguards in Sections 41 and 41-A must be followed by the police, including recording reasons for arrests or for not arresting, and issuing notices where appropriate.

Holding and Implications

DISPOSED OF / Writ Petition dismissed

Direct consequences and implications (as set out by the court in the opinion):

The writ petition was disposed of and the FIR dated 29.09.2021 was not quashed.
The court directed that the statutory protections under Sections 41 and 41-A CrPC are applicable and that the investigating officer is bound to comply with those provisions in this case. This includes:
- Recording reasons in writing when deciding to arrest an accused for an offence where the maximum sentence is up to seven years;
- Recording reasons in writing when deciding not to arrest;
- Issuing a notice of appearance under Section 41-A where arrest is not required under Section 41(1), and proceeding to arrest only if the person fails to comply with that notice or refuses to identify themselves, subject to any court orders.
The court relied on existing precedent (Arnesh Kumar) for these procedural safeguards and did not purport to lay down a new precedent; its decision applied those established principles to the facts before it.

This summary is limited to and strictly based on the contents of the provided opinion. No information beyond the opinion has been added or inferred.

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Gaurav Singh And Others v. State Of U.P. Through Principal Secretary And Others

1. Heard Sri Anil Kumar, learned counsel for the petitioners and Sri S.P. Singh, learned Additional Government Advocate appearing on behalf of the State-respondents.

2. This petition has been filed seeking a writ of certiorari for quashing the FIR dated 29.09.2021 and staying the arrest of the petitioner in Case Crime No. 609 of 2021, under Sections 498A, 323, 504, 506 IPC, and Section 3/4 D.P. Act, Police Station Thakurganj, District West Lucknow.

3. 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 petitioner 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”).

4. 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. Section 41 of the Code as it stands now reads as under:

“41. When police may arrest without warrant.?(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person?

(a) who commits, in the presence of a police officer, a cognizable offence;

(b) 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 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, if the following conditions are satisfied, namely : ?

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary?

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:

Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.

(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or

(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.”

Section 41-A of the Code inserted vide Act 5 of 2009 w.e.f. 1-11-2010, 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.”

5. 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).

6. 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.

7. Paragraphs 7.1 and 7.2 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)

8. 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.

9. 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.

10. 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.

11. 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.

12. With the aforesaid observation, the Writ Petition stands disposed of.

Gaurav Singh And Others v. State Of U.P. Through Principal Secretary And Others

Structured Summary of the Court Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

State-Respondents' / Additional Government Advocate's Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gaurav Singh And Others v. State Of U.P. Through Principal Secretary And Others

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