# Virendra Kumar Yadav v. State of U.P. & Ors

- **Citation:** (2021) 7 ILRA 802
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-01
- **Case number:** Application U/S 482 Cr.P.C. No. 6193 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-kumar-yadav-v-state-of-u-p-ors-47141
- **Pages:** 5

## Headnote

Code of Criminal Procedure, 1973 -
Section 41-A- Indian Penal Code, 1860 -
Sections 332, 323, 504 & 506 I.P.C All
these are within the perview of Section
41A of Cr.P.C.- The accused shall not be
arrested without following the procedure
as envisaged in Section 41A of Cr.P.C.
Where the punishment for the offences are less
than seven years, the legal requirement is that
when the accused presents himself before the
police officer in terms of the notice u/s 41 of the
Code, he shall not be arrested unless reasons
for the arrest are recorded in writing.

Code of Criminal Procedure, 1973- Section
482, 89 & 320- The applicant is constable
and the allegations against him are all
triable by a Judicial Magistrate. It appears
that the prosecution is going on and the
oscillation of deleting of Section 332 I.P.C.
and adding Section 332 I.P.C. has caused
lots of problem. The learned Judicial
Magistrate would also see that Section 89
of Cr.P.C.. namely alternative redressal
mechanism as well as provisions of
Section 320 Cr.P.C.. may also be invoked
looking
to
the
factual
data,
this
indulgence to the applicant who is a police
constable and the dispute arose due to his
duty is shown. Looking into the factual
scenario which has been canvassed even
in discharge application and it appears
that application that the complainant
himself was at fault who was the superior
officer of the petitioner.

In cases where the offences are triable by the
Magistrate, inviting punishment of less than
seven years and the matter being prima facie
not serious or grave, the Magistrate can decide
the same by compounding the offences and
through the process of alternative redressal
mechanism. ( Para 5,6)

Criminal Application partly allowed. (E-2)

Case law/ Judgements relied upon-

## Text

802 INDIAN LAW REPORTS ALLAHABAD SERIES
of judging the worth of the prayer to quash
proceedings. It is and ought not be regarded
by the Trial Court as any kind of a
comment or evaluation about evidence,
which is yet to surface during trial. The
truth of the prosecution case has to be
established beyond doubt at the trial in
accordance with law. However, this Court
is of opinion that this is not a case, where
the prosecution ought to be scuttled at the
threshold in the exercise of powers under
Section 482 of the Code.

32. In the result, this Application fails
and is dismissed.
----------
(2021)07ILR A802
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.07.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

Application U/S 482 Cr.P.C. No. 6193 of 2021

Virendra Kumar Yadav ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Mohammad Fahad, Sri Devesh Mishra,
Sri Vijay Gautam

Counsel for the Opposite Parties:
A.G.A.

 Code of Criminal Procedure, 1973 -
Section 41-A- Indian Penal Code, 1860 -
Sections 332, 323, 504 & 506 I.P.C All
these are within the perview of Section
41A of Cr.P.C.- The accused shall not be
arrested without following the procedure
as envisaged in Section 41A of Cr.P.C.
Where the punishment for the offences are less
than seven years, the legal requirement is that
when the accused presents himself before the
police officer in terms of the notice u/s 41 of the
Code, he shall not be arrested unless reasons
for the arrest are recorded in writing.

Code of Criminal Procedure, 1973- Section
482, 89 & 320- The applicant is constable
and the allegations against him are all
triable by a Judicial Magistrate. It appears
that the prosecution is going on and the
oscillation of deleting of Section 332 I.P.C.
and adding Section 332 I.P.C. has caused
lots of problem. The learned Judicial
Magistrate would also see that Section 89
of Cr.P.C.. namely alternative redressal
mechanism as well as provisions of
Section 320 Cr.P.C.. may also be invoked
looking
to
the
factual
data,
this
indulgence to the applicant who is a police
constable and the dispute arose due to his
duty is shown. Looking into the factual
scenario which has been canvassed even
in discharge application and it appears
that application that the complainant
himself was at fault who was the superior
officer of the petitioner.

In cases where the offences are triable by the
Magistrate, inviting punishment of less than
seven years and the matter being prima facie
not serious or grave, the Magistrate can decide
the same by compounding the offences and
through the process of alternative redressal
mechanism. ( Para 5,6)

Criminal Application partly allowed. (E-2)

Case law/ Judgements relied upon-

1. Criminal Misc. Writ Petition No. 17732 of
2020 (Vimal Kumar & 3 ors. Vs St. Of U.P. & 3
ors.) decided on 28.01.2021

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard learned counsel for the
applicant and learned A.G.A. for the State
and perused the record.

2. The present application under
Section 482 Cr.P.C. has been filed by the
7 All. Virendra Kumar Yadav Vs. State of U.P. & Ors.
803
applicant with the prayer to quash the
impugned
Summoning
Order
dated
08.10.2020 passed by the Chief Judicial
Magistrate Gautambudh Nagar, in Criminal
Case No. 24176 of 2018, Case Crime
No.1105 of 2018, under Sections 332, 323,
504 and 506 I.P.C., Police Station- Sector-
20, Noida, District- Gautambudh Nagar.

3. The applicant is constable. He had
filed his discharge application pursuant to
order passed by this Court 05.02.2019
which has been dismissed.

4. Order dated 05.02.2019 reads as
under:-

"Heard learned counsel for the
parties and perused the record.

This application under Section
482 of the Code of Criminal Procedure (for
short 'Code') has been filed on behalf of the
applicant with a prayer to quash the charge
sheet No. 1 dated 18.09.2018 and entire
criminal proceeding against the applicant
before Chief Judicial Magistrate, Gautam
Budh Nagar in Case Crime No. 1105 of
2018, under Sections 332, 323, 504, 506
I.P.C., Police Station-Noida Sector 20,
District-Gautam Budh Nagar (State vs.
Virendra
Singh
Yadav)
as
well
as
cognizance order dated 22.10.2018.

Learned counsel for the applicant
contended that first information report has
been lodged with false allegation only to
harass the applicant.

Per
contra,
learned
A.G.A.
opposed the prayer made and contentions
thereof raised by learned counsel for the
applicant.

All the submissions made at the
bar relate to the disputed questions of fact,
which cannot be adjudicated upon by this
Court in exercise of its extraordinary
jurisdiction under Section 482 of Code.

From the perusal of the material
on record and looking into the facts of the
case, at this stage it cannot be said that no
offence is made out against the applicant.

In view of the above, the prayer
for quashing the impugned charge-sheet,
the impugned cognizance order as well as
the entire proceedings in the aforesaid case
is hereby refused.

However, if applicant claims for
discharge at appropriate stage, the same
shall be decided by trial court by speaking
order.

With the aforesaid observations
/directions, the instant application stands
disposed of."

5. The applicant is a constable and it
is submitted that if he would be arrested in
criminal matter for which he is facing trial
and prosecution, he may suffer immense
loss. As per Section 332 I.P.C. is
concerned, it is punishable for three years
As far as Section 323 I.P.C. is concerned, it
is punishable with one year and fine and all
the both. As far as Sections 504 I.P.C. and
506 I.P.C. is concerned, it is punishable for
two years or with fine. As far as Section
506 I.P.C. is concern, it is punishable for
two years or the fine, Part-II of 506 I.P.C.
is punishable up to seven years and or fine.
All these are within the perview of Section
41A of Cr.P.C. and as per the Division
Bench of this Court in Criminal Misc.
Writ Petition No. 17732 of 2020 (Vimal
Kumar And 3 Others Vs. State Of U.P.
And 3 Others) decided on 28.01.2021 has
considered the provisions of Section 41A
of the Cr.P.C. and held that the accused
shall not be arrested without following the
procedure as envisaged in Section 41A of
804 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C., Wherein the Division Bench has
observed as follows:-

Moreover,
reliance
on
the
judgements dated 04.09.2018 passed by
Apex Court in the case of Social Action
Forum for Manav Adhikar Vs. Union of
India, Ministry of Law and Justice and
others in Writ Petition (Civil) No. 73 of
2015 with Criminal Appeal No. 1265 of
2017 Writ Petition (Criminal) No. 156 of
2017.

In which Hon'ble Supreme Court
has also issued directions:

"20. We, therefore, direct the
Magistrates/ Police authorities that when
accused alleged with offence punishable up
to 7 years imprisonment are produced
before them remands may be granted to
accused only after the Magistrate 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 Cr.P.C., and
there is concrete material in existence to
substantiate the ground mentioned for
seeking remand. Even where the accused
himself surrenders or where investigation
has been completed and the Magistrate
needs to take the accused in judicial
custody as provided under Section 170(I)
and
Section
41(I)(b)(ii)(e)
Cr.P.C.
prolonged imprisonment at this initial
stage, where the accused has not been
adjudged guilty may not be called for, and
the Magistrate and Sessions Courts are to
consider the bails expeditiously and not to
mechanically refuse the same, especially in
short sentence cases punishable with upto 7
years imprisonment unless the allegations
are
grave
and
there
is
any
legal
impediment in allowing the bail, as laid
down in Lal Kamlendra Prap Singh Vs.
State of U.P. (2009) 4 SCC 437, and
Sheoraj Singh @ Chuttan Vs. State of
U.P. and others, 2009(65) ACC 781. The
facility of releasing the accused on interim
bail pending consideration of their regular
bails may also be accorded by the
Magistrates
and
Sessions
Judges
to
appropriate cases.

21.The
Magistrate
may
also
furnish information to the Registrar of the
High Court through the District Judge, in
case he is satisfied that a particular police
officer has been persistently arresting
accused in cases punishable with upto 7
year terms, in a mechanical or mala fide
and dishonest manner, in contravention of
the requirements of sections 41(1)(b) and
41 A, and thereafter the matter may be
placed by the Registrar in this case, so that
appropriate directions may be issued to the
DGP to take action against such errant
police officer for his persistent default or
this
Court
may
initiate
contempt
proceedings against the defaulting police
officer.

22.The Sessions District Judges
should also be directed to impress upon the
remand Magistrates not to routinely grant
remand of accused to police officers
seeking remand for accused if the preconditions for granting the remands
mentioned in sections 41(1)(b) and 41 A
Cr.P.C.
are
not
disclosed
in
cases
punishable with 7 year terms, or where the
police officer appears to be seeking remand
for an accused in a mala fide manner in the
absence of concrete material. The issue of
compliance with sections 41(1)(b) and 41 A
Cr.P.C and the directions of this Court in
this regard may also be discussed in the
monthly meetings of the District Judges
with the administration and the superior
police officials.

23.We are also of the view that
the Registrar General may issue a circular
7 All. Virendra Kumar Yadav Vs. State of U.P. & Ors.
805
within a period of one month with
directions to the Sessions Courts and
Magistrates to monitor and oversee the
applications for remand sought by the
arresting police officers and to comply with
the other directions mentioned herein
above.

25. As already indicated above
we are of the view that by routinely
mentioning in the case diary that a
particular condition referred to in sections
41(1)(b) or 41 A Cr.P.C. has been met for
seeking police remand, would not provide
adequate reason for effecting the arrest.
The DGP is also directed to circulate the
present order to all subordinate police
officers.

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 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 is not required
may not face arrest. But we are pained that
this provision has not met his avoid
purpose.

27.Let a copy of this order be sent
to the DGP, U.P., Member Secretary, U.P.
SLSA and District Judges in all districts of
U.P. for compliance and communication to
all the concerned judicial magistrates before
whom the accused are produced for remand
by the police officers within ten days.

In order to ensure what we have
observed above, we give the following
directions:

11.1. 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 Cr.P.C.
1973.

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

11.3. 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;

11.4.
The
Magistrate
while
authorising 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 authorise detention;

11.6. 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;

While parting we appreciated the
efforts made by learned counsel for the
petitioners namely Sri Ajay Vikram Yadav
who has seriously urged to us that as scribe
are not facing what said to case under the
dowry prohibition Act as there is still no
marriage, but apprehend to arrest. That the
police
authorities
would
convey
our
guidelines not only in this matter but in all
the investigations which are to be taken.

A copy be circulated by learned
Registrar General to the Law Secretary
who shall impress upon all the police
stations officers about the same.

We would like to draw the
attention of the police authorities of the
806 INDIAN LAW REPORTS ALLAHABAD SERIES
State to our order dated 18.01.2021 and the
provisions of section 41-A of the Cr.P.C.
Despite there being warning from the Apex
Court in the matter reported in Writ
Petition (Civil) No. 73 of 2015 Social
Action Forum for Manav Adhikar and
another Vs. Union of India, Ministry of
law and Justice and others (Supra) and in
the matter of Anand Tiwari Vs. State of
U.P. and others passed in Crl. Misc. Writ
Petition No. 17641 of 2020 and Arnesh
Kumar Vs. State of Bihar, (2014) 8 SCC
273 has directed the police authorities to
try the balance between individual liberty
and social order. "

6. The fact that the applicant is
constable and the allegations against him
are all triable by a Judicial Magistrate. It
appears that the prosecution is going on and
the oscillation of deleting of Section 332
I.P.C. and adding Section 332 I.P.C. has
caused lots of problem. The learned
Judicial Magistrate would also see that
Section 89 of Cr.P.C.. namely alternative
redressal mechanism as well as provisions
of Section 320 Cr.P.C.. may also be
invoked looking to the factual data, this
indulgence to the applicant who is a police
constable and the dispute arose due to his
duty is shown. Looking into the factual
scenario which has been canvassed even in
discharge application and it appears that
application that the complainant himself
was at fault who was the superior officer of
the petitioner.

7. This petition is partly allowed. The
petitioner shall not be coercively dealt with
as per the aforesaid observations.
----------

(2021)07ILR A806
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.02.2021
BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Single No. 8632 of 2010
connected with others cases

Rajveer Sharma ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
B.K. Singh, Brijesh Kumar Singh

Counsel for the Respondent:
C.S.C.

A.
Service
Law
-
Pension
-
U.P.
Cooperative Federal Authority (Business)
Regulations,
1976
-
Subordinate
Cooperative Service Rules, 1979 - Rule
4(d), 4(p) - The definition of Rules 4(d)
and 4(p) clearly indicates the intendment
of the legislature. Definition of "Cooperative
Supervisor" in Rule 4(d) is the clear intendment
of
the
legislature
that
the
Co-operative
Supervisor shall be under the employment of
the co-operative institutions; whereas in Rule
4(p), "village-level workers" have been brought
under the employment of the Community
Development Department in the State of Uttar
Pradesh. Therefore, wherever the legislature
intended to do so, they have done it expressly.
Therefore, this Court is of the opinion that the
post
of
Co-operative
Supervisor
was
completely kept out of the purview of the
Government department. (Para 71)

B. In the Co-operative Regulations there is
no provision for pensionary benefits. The
intention of the legislature is clear that
Cooperative
Supervisors
can
come
to
government service only through the procedure
established by the Rules and Regulations, as
government
servants.
They
are
recruited
according to the procedure provided in (a) and
(b) of Part III of the Rules.

It
has
been
noticed
that
Co-operative
Supervisors were under the control of the Cooperative Federation Authority and in Cooperative Regulations there is no provision for