# Ram Bahadur Sahani v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2022) 8 ILRA 435
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-14
- **Case number:** Crl. Misc. Anticipatory Bail Appl. No. 780 of 2022
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-bahadur-sahani-v-state-of-u-p-ors-opp-parties-48787
- **Pages:** 3

## Headnote

G.A., Sri Uma Nath Pandey, Sri Shiv Ram Dubey

A. It is mandatory on the part of Investigating
Officer to record reasons for making arrest as
well as not making arrest in respect of a
cognizable offence for which the maximum
sentence is upto 7 years. Arrest is not required
to be made under sub clause (1) of the
amended section 41 of the code, the Police is
bound to issue a notice of appearance to the
accused person. Even in such a case, failure to
comply with the notice of appearance or
unwillingness to identify himself may be
grounds for the Police to arrest a person to
whom a notice under section 41-A of the Code
has been issued.

Application disposed of. (E-12)

List of Cases cited:-

## Text

8 All. Ram Bahadur Sahani Vs. State of U.P. & Ors.
435

9. After hearing the learned counsel
for the applicant and learned A.G.A., and
after perusing the averments made in the
present anticipatory bail application, this
Court is of the opinion, that learned counsel
for the applicants could not point out any
good ground for grant of bail to the
applicants.

10. Accordingly, the anticipatory bail
application filed on behalf of the applicants
is hereby rejected.
----------
(2022) 8 ILRA 435
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.06.2022

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Crl. Misc. Anticipatory Bail Appl. No. 780 of 2022

Ram Bahadur Sahani ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Mrs. Shaili
Ganguly, Sri
R. Krishnamurti,
Vijaylaxmi Krishnamorthi

Counsel for the Opp. Parties:
G.A., Sri Uma Nath Pandey, Sri Shiv Ram Dubey

A. It is mandatory on the part of Investigating
Officer to record reasons for making arrest as
well as not making arrest in respect of a
cognizable offence for which the maximum
sentence is upto 7 years. Arrest is not required
to be made under sub clause (1) of the
amended section 41 of the code, the Police is
bound to issue a notice of appearance to the
accused person. Even in such a case, failure to
comply with the notice of appearance or
unwillingness to identify himself may be
grounds for the Police to arrest a person to
whom a notice under section 41-A of the Code
has been issued.

Application disposed of. (E-12)

List of Cases cited:-
1. Arnesh Kumar Vs St. of Bihar (2014)8 SCC
273

(Delivered by Hon'ble Shekhar Kumar
Yadav, J.)

1. Heard Mr. R. Krishnamurti,
holding brief of Mrs. Shaili Ganguly,
learned counsel for applicant, learned
Additional Government Advocate for the
State, Mr. Shiv Ram Dubey, holding brief
of Mr. Uma Nath Pandey, learned counsel
for opposite party no.3 and perused the
material available on record.

2. The present anticipatory bail
application under Section 438 Cr.P.C. has
been filed for grant of anticipatory bail as
the accused-applicant is apprehending her
arrest in connection with Case Crime
No.505 of 2021, under Sections 420, 406
IPC,
Police
Station
Kasana,
District
Gautam Budh Nagar.

3. Learned counsel for the applicant
has submitted that the applicant has been
falsely implicated in the present case. Due
to
civil
litigation
pending
between
applicant and complainant, the complainant
has lodged FIR through an application
under Section 156 (3) Cr.P.C. just to create
pressure upon the applicant. The applicant
has
no
criminal
antecedents.
During
arguments,
learned
counsel
for
the
applicant has submitted that since all the
offences are punishable with less than
seven years of imprisonment, therefore,
ratio of law laid down by Supreme Court in
case of Arnesh Kumar Vs. State of Bihar,
(2014) 8 SCC 273 should have been
invoked.
436 INDIAN LAW REPORTS ALLAHABAD SERIES

4. On the other hand, learned AGA
states that the offence allegedly committed
by the applicant entail a sentence up to
seven years. In such circumstances, the
investigating
officer
shall
ensure
compliance of provisions of Section 41 and
Section 41-A of the Code of Criminal
Procedure as provided by Hon'ble Supreme
Court of India in Arnesh Kumar (supra).

5. Section 41 of the Code deals with
the power of the police officer investigating
the commission of a cognizable offence, to
arrest a person without an order from the
Magistrate and without a warrant.

6. Section 41-A of the Code inserted
vide Act 5 of 2009 w.e.f. 1-11-2010, reads
as follows:

"41-A. Notice of appearance before
police officer.-(1) The police officer shall,
in all cases where the arrest of a person is
not required under the provisions of subsection (1) of section 41, 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.

(2) Where such a notice is issued to
any person, it shall be the duty of that
person to comply with the terms of the
notice.

(3) Where such person 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.

(4) Where such person, at any time,
fails to comply with the terms of the notice
or is unwilling to identify himself, the
police officer may, subject to such orders as
may have been passed by a competent
Court in this behalf, arrest him for the
offence mentioned in the notice."

7. A perusal of Section 41 shows that
there is no absolute bar against arresting a
person accused of an offence punishable
with imprisonment for a term which may
be less than seven years or which may
extend up to seven years with or without
fine. Section 41(1)(a), however, provides
that an investigating officer shall not arrest
a person accused of such offences in a
routine manner and the arrest be made,
only
after
following
the
restrictions
imposed under Section 41(1)(b).

8. In Arnesh Kumar (supra), the
Apex Court while dealing with the power
of the police to arrest a person under
Section 41 of the Code, has held that the
said power is to be exercised only after the
conditions enumerated in the said Section
are satisfied. Relevant paragraph of the said
judgment is extracted below:

"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
8 All. Sidhique Kappan Vs. State of U.P.
437
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. The law mandates the
police officer to state 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. 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-clauses (a) to (e) of
clause (1) of Section 41 Cr.P.C."

9. Thus, it is mandatory on the part of
the investigating officer to record reasons
for making arrest as well as for not making
arrest in respect of a cognizable offence for
which the maximum sentence is up to
seven years.

10. However, arrest is not required to
be made under Sub-Clause (1) of the
amended Section 41 of the Code, the police
is bound to issue a notice of appearance to
the accused person. Even in such a case,
failure to comply with the notice of
appearance or unwillingness to identify
himself may be grounds for the police to
arrest a person to whom a notice under
Section 41-A of the Code has been issued.

11. The statutory protection under
Section 41 and 41-A of the Code is already
available, which the police authorities are
bound to comply in this case also.

12. Considering the facts and
circumstances of the case, the present
anticipatory bail application is disposed of
directing the Investigating Officer to
strictly comply with the provisions of
Section 41 and Section 41-A of the Code of
Criminal Procedure as provided by Hon'ble
Supreme Court of India in Arnesh Kumar
(supra).

13. The anticipatory bail application
is finally disposed of with the above noted
directions.
----------
(2022) 8 ILRA 437
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.08.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Crl. Misc. Bail Appl. No. 1612 of 2022

Sidhique Kappan ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Ishan Baghel

Counsel for the Opp. Parties:
G.A.

Unlawful
Activities
(Prevention)
Amendment Act, 2019 - Section 43(D)(5) -