Sections 41, 41A CrPC Facets Of Article 21; Police Officer Is Duty-Bound To Record Reasons For Arrest In Writing: Allahabad HC

“…a police officer is duty-bound to record the reasons for arrest in writing. The consequence of noncompliance with Section 41 shall certainly inure to the benefit of the person suspected of the offence. On the scope and objective of Section 41 and 41A, it is obvious that they are facets of Article 21 of the Constitution,” the bench of Justice Mahesh Chandra Tripathi and Justice Prakash Padia observed.

It may be noted that as per the Top Court’s judgment in the case of Arnesh Kumar (supra), the arrest should be the exception where the offence is punishable with less than 7 years imprisonment, and notice for appearance under Section 41A CrPC should be served on the accused in such cases instead of arrest. The arrest can be made in exceptional circumstances in such cases, but the reasons have to be recorded in writing.

For context, Section 41A of CrPC provides that in all cases where the arrest of a person is not required under Section 41(1) (When police may arrest without warrant), the Police shall 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.

It further states that where the accused 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.

The case before the HC

Essentially, the Court was dealing with a Criminal Writ petition filed by one Rajkumari seeking to quash the FIR lodged against her under Sections 3/7 Essential Commodity Act, 1955.

It was the contention of her counsel that all alleged offences are punishable with imprisonment of seven years, and therefore, the police authorities are bound to follow the procedure laid down under Section 41-A CrPC.

In this regard, the counsel also referred to the High Court’s 2021 Judgment in the case of Vimal Kumar and 3 others vs. State of UP and 3 others, wherein the Police authorities were directed to desist from making automatic/ routine arrests, especially in dowry cases (498A IPC), and strictly comply with the pre-conditions laid down under Section 41A of CrPC.

The High Court had further directed all Magistrates to report the names of such police officers who they think make arrests in a mechanical or mala fide manner, so that appropriate action may be taken against them.

Taking note of the facts of the case and the arguments advanced by the petitioner’s counsel, the Court opined that the guidelines framed by the High Court in the case of Vimal Kumar and 3 others (supra) were equally applicable to the facts of the instant case.

Consequently, the Court disposed of the Criminal Writ plea in view of the judgments cited above.

Appearances

Counsel for Petitioner: Mahendra Kumar Yadav, Vinod Kumar Yadav

Counsel for Respondent: G.A.

Case title - Rajkumari vs. State Of U.P. And 3 Others [CRIMINAL MISC. WRIT PETITION No. - 7496 of 2023]

Case Citation: 2023 LiveLaw (AB) 203

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