The Lucknow Bench of the Allahabad High Court, while giving an important decision in a dowry harassment case, said that the accused cannot be directly arrested in a case punishable up to seven years.
The Division Bench of Justice Rajesh Singh Chauhan and Justice Vivek Kumar Singh heard the petition filed by Mukesh Yadav and Others.
By means of this petition, petitioners have sought quashing of the First Information Report dated 12.09.2022 bearing Case under Section 498-A, 323, 504, 506 IPC and Section 3/4 of the Dowry Prohibition Act, registered at Police Station Gosaiganj, District Lucknow.
The Counsel for the petitioners submitted that the offence allegedly committed entails a fine and a maximum imprisonment of seven years and as such the Investigating Officer be directed to take recourse to the procedure provided under Section 41A of the Code of Criminal Procedure 1973.
The Court noted that,
Counsel for the petitioners relied upon the case of “Arnesh Kumar v State of Bihar” reported in (2014) 8 SCC 273.
In Arnesh Kumar (supra), the Apex Court has held that the police officers should not automatically arrest the accused when the offence with which the accused is charged provides for a maximum punishment of imprisonment which may extend to seven years and fine. It was held that in such cases, the power of arrest should be exercised only when the conditions enumerated in Section 41 of the Code are satisfied.
The Court then took into account the provisions of Section 41-A of the Code and held as under:
“The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obligates 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 officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied with and shall be subject to the same scrutiny by the Magistrate as aforesaid.”
In view of the prayer made by the counsel for the petitioners, the Court disposed of the writ petition with a direction to the investigating officer to take action only after complying with the provisions of Section 41-A of the Act, in case the offences under investigation entails a fine and maximum imprisonment of seven years.