Offence Punishable with imprisonment for less than 7 years or equal to 7 years
Offence Punishable upto 7 years imprisonment which means when an FIR has been lodged with an offence which is punishable with an imprisonment that may extend to seven years it is imperative that a notice under section 41A Cr PC is to be served . It is notable that in the case of Arnesh Kumar vs State of Bihar (CRIMINAL APPEAL NO. 1277 OF 2014) wherein it was held that before making an arrest for the offences punishable with imprisonment for a term less than or equal to seven years, a notice of appearance in terms of Section 41A Cr.P.C. is to be served.
Guidelines set out in Arnesh Kumar vs State of Bihar
Question of Offence Punishable upto 7 years imprisonment has been dealth with by the Hon’ble Supreme Court in Arnesh Kumar vs State of Bihar CRIMINAL APPEAL NO. 1277 OF 2014 set out certain guidelines for arrest in case of offences punishable less than or equal to 7 years. The brief facts of the case is Arnesh Kumar had the apprehension that he could be arrested in a case under Section 498-A of the Indian Penal Code, 1860 and Section 4 of the Dowry Prohibition Act, 1961. The maximum sentence provided under Section 498-A IPC is imprisonment for a term which may extend to three years and fine whereas the maximum sentence provided under Section 4 of the Dowry Prohibition Act is two
years and with fine. Arnesh Kumar was married to one Sweta Kiran. The Hon’ble Supreme Court has laid down these guidelines as given below to …” ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:
(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
(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;
(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons
to be recorded in writing;
(6) Notice of appearance in terms of Section 41A of Cr.PC 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;
(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for
departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having
territorial jurisdiction.
(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for
departmental action by the appropriate High Court.
We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4
of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
Conclusion
It is noteworthy that this landmark judgment is being followed since it was passed and has reduced unnecessary arrests and therefore less burden on courts.
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