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Judgment
This Writ Petition has been filed under Article 226 of Constitution of India seeking declaration that the action of respondent Nos.3 and 4 in attempting to arrest the petitioner in Crime No.146 of 2022 of Abid Road Police Station, Hyderabad, without following the procedure contemplated under Section 41-A of the Code of Criminal Procedure, is arbitrary, illegal and in violation of the guidelines issued by the Hon’ble Apex Court in the case of Arnesh Kumar v. State of Bihar (2014) 8 SCC 273.
The case of the petitioner is that on 21.05.2022, there was an altercation between himself and his employer/ respondent No.5 for non-payment of salaries on time and he left the job. Thereupon his employer/Respondent No.5 foisted a false complaint alleging that he has taken away an amount of Rs.20,00,000/- lying in an envelop in the office, which was culminated into as a case in Crime No.146 of 2022 alleging offence under Section 381 of Indian Penal Code.
Heard Sri Mohd Adnan, learned counsel for the petitioner and the learned Assistant Government Pleader for Home, appearing for the respondents.
Learned counsel for the petitioner submits that the offence alleged against the petitioner is punishable upto 7 years and the police are bound to follow the guidelines laid down by the Hon’ble Apex Court in Arnesh Kumar’s case (supra). However, under the influence of the respondent No.5 the police are making hectic efforts to arrest the petitioner, which would violate his fundamental rights, hence prayed for issuance of directions to the respondent Nos.3 and 4.
Learned Assistant Government Pleader for Home submits that as the alleged offence is punishable upto 7 years, there is no impediment in following the procedure contemplated under Section 41-A of the Cr.P.C and also the guidelines laid down by the Hon’ble Apex Court in Arnesh Kumar’s case (supra). However, the amount to be recovered is huge and the investigation is underway, at this juncture, it cannot be said whether the arrest of the petitioner is required for interrogation or not.
I have perused the record.
The core contention of the petitioner is that he may be arrested by the police, without following the due procedure contemplated under Section 41-A of Cr.P.C. As the investigation is going on, whether the petitioner is likely to be arrested, circumventing the procedure in the provision under Section 41-A of Cr.P.C., would be a surmise. How so ever, for the cognizable offence, with maximum sentence of 7 years, the arrest of the accused shall be made in routine course and restrictions imposed under Section 41-1(B) of Cr.P.C to be followed before making any arrest. Thus, it is mandatory for the police under Section 41(1) of Cr.P.C to record reasons for making arrest as well as reasons for not making such arrest and where arrest is not made under Section 41 (1) of Cr.P.C, the police shall issue the notice of appearance under Section 41-A of Cr.P.C to the petitioner.
As the police is bound to follow the above legal position, there need not be another command. Nevertheless having regard to the apprehension of the petitioner and in the circumstances pleaded, the 2nd and 3rd respondents are directed to strictly adhere to the procedure contemplated under Sections 41 and 41-A of Cr.P.C and the guidelines enunciated in the dictum of the Apex Court in Arnes Kumar’s case, on the merits of the matter, in accordance with law.
With the above directions, the Writ Petition is disposed of. There shall be no order as to costs.
Miscellaneous applications, pending if any, shall stand closed.