Pained to note that unnecessary arrests are made: Allahabad High Court directs Magistrates to strictly comply with Section 41, CrPC

The Allahabad High Court on Thursday directed the Uttar Pradesh government and Magistrates in the State to stringently comply with Section 41 of the Code of Criminal Procedure (CrPC), expressing pain over routine and unnecessary arrests made for offences punishable up to 7 years (Vimal Kumar and three Ors v. State of Uttar Pradesh). .A Bench of Justices Kaushal Jayendra Thaker and Gautam Chowdhary was dealing with a case involving allegations of dowry and false implication in criminal cases under the Indian Penal Code (Section 498-A, IPC). .In the course of considering the case, the Court observed that the police were overlooking Section 41 (1)(b) (detailing conditions where an arrest is necessary) and Section 41A (where arrest can be avoided and notice for appearance issued instead).."We have been pained to note that regularly petitions are filed where the offence committed would be for a lesser period then seven years or maximum punishment would be seven 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", the Court said..The Writ Petition, in this case, challenged a First Information Report filed under section 498-A, IPC and Sections 3 and 4 of the Dowry Prohibition Act. .The Court was told that a marriage was fixed between the petitioner and the daughter of the fourth respondent. The FIR stated that the petitoners had demanded a car from the respondents for the solemnisation of the marriage, leading to the filing of a criminal complaint..On the other hand, the petitioners asserted before the Court that it was the woman's family who demanded money from the petitioner's family to solemnise the marriage, failing which the petitioners were threatened with being dragged into a criminal case. .The Court was also told that the police had been constantly visiting the petitioners' house, despite the fact that all the offences alleged were punishable with incarceration below 7 years. .The Court observed:.“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.”.In view of the observations laid down in various cases, the Bench proceeded to emphasise that even where an accused surrenders before a remand court, bail should not be refused mechanically, especially “in short sentence cases punishable with up to 7 years imprisonment, unless the allegations are grave and there is any legal impediment in allowing the bail.”.Deliberating on the true intention behind the criminal law amendment which brought in Section 41-A to 41-D, the Bench has now issued the following directions to the State and concerned Magistrates:The State Government is to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered. Rather, the police should satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41-A of CrPC.All police officers should be provided with a checklist containing specified sub-clauses under Section 41(1)(b)(ii) (on the conditions where the police feels that arrest is necessary);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.The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer, and only after recording its satisfaction, the Magistrate will authorise detention;Notice of appearance in terms of Section 41-A CrPC should 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;.[Read Order]