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Allahabad High Court · body

2012 DIGILAW 1180 (ALL)

Shaukin v. State of U. P. and Others

2012-05-15

AMAR SARAN, VIJAY PRAKASH PATHAK

body2012
Vijay Prakash Pathak, J.— Heard learned AGA and Mr Vimlendu Tripathi on behalf of the State-respondents. An affidavit of compliance has been filed on behalf of the Director General of Police. 2. In the affidavit it has been stated that the police officers are strictly complying with the directions dated 11.10.11 and 14.12.11 issued by this Court as well as the circulars issued by the DGP pursuant thereof. However, regarding two districts, namely, Saharanpur, and Bareilly, the DIGs of the ranges have stated that in view of section 41(1)(b) Cr.P.C. when arrests are not effected in offences which are punishable with up to 7 years' imprisonment, the law and order situation, so far as petty matters are concerned, has worsened and the offenders are not afraid of committing crimes and difficulties are being experienced in getting recoveries made from them. Also that complainants are sometimes raising doubts about the fairness of the investigation. 3. A similar response has also been received from the Superintendent of Police, Balrampur, which has been forwarded to this Court through the CJM and the District Judge, Balrampur. 4. We may mention here that the said responses have proceeded on a misunderstanding of section 41(1)(b) Cr.P.C. which only provides that before making arrests in offences punishable with upto 7 years, the police officer has to be satisfied on the basis of a reasonable complaint or credible information or on existence of a reasonable suspicion that the person has committed a cognizable offence; and he is further to be satisfied that the offender's arrest is necessary to prevent him from committing any further offence or for proper investigation of the offence or for preventing him from causing the evidence of the offence to disappear or his tampering with the evidence in any manner or to prevent the 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 unless such person is arrested, his presence in the Court whenever required cannot be ensured. Once the police officer is satisfied as to the aforesaid, he shall record reasons in writing while making the arrest. Once the police officer is satisfied as to the aforesaid, he shall record reasons in writing while making the arrest. As we have already observed in our order dated 11.10.11 that in cases, other than those of the categories mentioned above, where an accused has been implicated in a case punishable with up to 7 years, the arrest of the accused may not be necessary at the initial stage and his attendance may be secured by issuing a notice to him to appear before the police officer as provided under section 41A Cr.P.C. In such cases it would be advisable to arrest the accused only after sufficient evidence of his involvement in the crime has been collected and the charge sheet needs to be submitted. 5. We have further clarified that there may be cases where the accused has not been named in the FIR or at the time when the co-accused were picked up, for example in a case of vehicle theft or recovery of other stolen gods, or where the co-accused has been arrested while committing a crime and he names another accused as also having participated in the crime, whose custodial interrogation may be necessary and the police officer is of the opinion that the disclosure furnishes credible information or gives rise to a reasonable suspicion for inferring that the accused whose arrest is sought could also be involved, or there are chances that such an accused would abscond or not respond to a notice under section 41A Cr.P.C. to appear, looking to the nature of the crime and the background of the particular accused, these may be appropriate cases where immediate arrests may be needed. Likewise where the accused whose arrest is sought appears to be habitually engaged in committing crimes or appears to be participating in some organized crimes, these would also be circumstances where it may be necessary to arrest such accused without delay. Thus we see that no total embargo has been placed on effecting arrests even in cases punishable upto 7 years imprisonment. 6. Thus we see that no total embargo has been placed on effecting arrests even in cases punishable upto 7 years imprisonment. 6. We have also clarified in the aforesaid order that in a case under section 498A IPC, where the wife has been subjected to violence and has gone back to her 'maika' following the violence, it may not be necessary in a particular case to immediately arrest the husband and other family members who have been made accused in the FIR until adequate evidence has been collected, as she is unlikely to encounter violence when she is away from her 'sasural'. In E.C. Act offences again where the licence of the ration card dealer named in the FIR has been suspended, he may not have any opportunity to again indulge in black marketing or to commit a new offence under the E.C. Act. Here too, arrests can be deferred until sufficient evidence for submitting a charge sheet has been collected, and he needs to be produced before the trial court unless the accused has in the meantime secured bail. But where the dealer is trying to obtain affidavits from ration card holders and it appears that he is trying to win over witnesses, then it may be open to the police to arrest him straight away. We have mentioned these examples as illustrations for situations where arrests may or may not be immediately needed and they are by no means exhaustive. 7. Therefore, we have given sufficient illustrations for the guidance of the investigating officers to make arrests only when it is necessary, and to avoid them when the same can legally and justifiably be avoided in the facts and circumstances of a particular case. By following the procedure prescribed under section 41(1)(b) Cr.P.C. and the directions given by this Court in its earlier orders and the DGP's consequential circulars, the concerned police officers can serve the aforesaid objective and follow the mandate of law and at the same time protect the human rights of innocent or poor persons against arbitrary arrests in petty matters. 8. 8. It has been reported that by following the aforesaid, directions the filing of section 482 Cr.P.C. applications and writ petitions, praying for stays of arrests of the applicants has declined, which has reduced the load of pendency in such matters in the High Court enabling it to take up serious matters of bails and appeals in murder and other cases of grave nature. 9. We have so far only received responses from one-third of the district judges pursuant to our last order dated 28.3.12 and we find that in Jaunpur and Pratapgarh and Barabanki remands were even refused in some matters by the concerned Magistrates in some matters because the police had routinely tried to secure the arrests of the accused who were wanted in petty crimes without complying with the provisions of section 41(a)(b), which is a welcome sign. We would like the remaining District Judges to furnish the information as sought in the last order dated 28.3.12 by the next listing. 10. List this case on 21.8.2012 for submission of further affidavits of compliance. 11. Copies of this order be forwarded to the DJs with a direction to submit the compliance report of the earlier and present orders and also to the DGP for communication to all concerned, U.P., Member-Secretary, U.P. Legal Services Authority and DIGs, Saharanpur and Bareilly ranges, and the SP, Balrampur, through DJ and CJM, Balrampur for information and compliance. _