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2017 DIGILAW 360 (ALL)

Ramesh Kumar v. State of U. P. Thru. Prin. Secy. Home

2017-01-27

NARAYAN SHUKLA, SHEO KUMAR SINGH-I

body2017
JUDGMENT Heard Ms.Manjusha, learned counsel for the petitioner as well as learned Additional Government Advocate. The petitioner has challenged the first information Report registered as Case Crime No.0023/2017, under Section 3/7 of E.C. Act, Police Station Kheri, district Kheri. The learned counsel for the petitioner has submitted that the offence alleged are punishable with the punishment which is less than seven years or which may extend up to seven years with or without fine. therefore, in view of the provisions of Section 41 of the Code of Criminal Procedure 1973, the petitioner can be arrested by the police officer only on his satisfaction that such a person has committed offence punishable as aforesaid. In support of her submission she has placed a decision of the Hon'ble Supreme court rendered in the case of Arnesh Kumar versus State of Bihar and another, reported in (2014) 3 SCC (Cri.) 449, in which the Hon'ble Supreme Court has held that a Police Officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. We quote the relevant paragraph 7.1., 7.2 and 7.3. "7.1.From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A Police Officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. 7.2.The law mandates the police officer to sate the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest. 7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clause (a) to (e) of clause (1) of Section 41 Cr.P.C." In view of the law laid down by the Hon'ble Supreme Court as well as the provisions of Section 41 of the Code of Criminal Procedure, we hereby provide that the police concerned shall follow the dictum of the Hon'ble Supreme Court before taking any step of arrest of the petitioner in connection with case crime No.0023/2017, under Section 3/7 of E.C.Act, Police Station Kheri, district Kheri. With the aforesaid observations the writ petition stands disposed of finally.