Allahabad High Court issues multiple directions for compliance of Safeguards from Arbitrary Arrest

Allahabad High Court issues multiple directions for compliance of Safeguards from Arbitrary Arrest

A Division Bench of the Allahabad High Court on 28th January, 2021, comprising of Justices Dr. Kaushal Jayendra Thaker and Gautam Chowdhary in the case of Vimal Kumar & Others vs. State of Uttar Pradesh. & Others directed the Police authorities 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 Criminal Procedure Code (CrPC).

In the present case, the appellant's (Vimal Kumar and Ors.) family had filed a writ petition who was earlier accused of demanding dowry from their prospective daughter-in-law. The Petitioner-accused had submitted that even though the offences alleged against him were punishable with less than seven years imprisonment, the concerned police officer regularly visited his house under the influence of the Complainant.

It was argued that under the provisions of Sections 204, S41(1)(b), Section 41(1)(b)(ii)(e), Section 41(a) of the CrPC, 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 bench, on examination of the facts, noted 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 but despite this safeguard, in many cases the police is still routinely proceeding to arrest accused persons, even if they are involved in offences punishable with up to seven years imprisonment.

The Court expressing its concern observed that, "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 s not required may not face arrest. But we are pained that this provision has not met his avoid purpose."

"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 bench observed in the facts of this case.

The Court issued the following directions:

1. The State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41-A of CrPC 1973.

2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii).

3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention.

4. The Magistrate while authorizing 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 authorize detention.

5. Notice of appearance in terms of Section 41-A CrPC 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.

The bench therefore directed the Magistrates/Police authorities that when accused alleged with offence punishable up to seven years imprisonment are produced before them, remands may be granted to accused only after the Magistrates 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 CrPC and that there is concrete material in existence to substantiate the ground mentioned for seeking remand.

In addition to this the High Court also 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.

The Court in the aforementioned matrix allowed the writ petitions partly and directed the Registry to send this order to the Director of General Police (DGP), UP; Member Secretary, UP State Legal Service Authority (SLSA); and District Judges in all districts of UP, for compliance and compliance and communication to all the concerned judicial magistrates before whom the accused are produced for remand by the police officers.