The central legal point established in the judgment is the significance of the provisions of Section 41(1)(b) and Section 41A of the Cr.P.C. in determining the conditions justifying arrest and the requirement for issuing a notice before arrest.

Rakesh Tiwari, Karuna Nand Bajpayee, J.;—

This writ petition has been filed for quashing an FIR and staying the arrest of the petitioner in Case Crime No.296 of 2013, under Section 420 IPC, and Sections 15(2) and 15(3) of Indian Medical Council Act, 1956 and Section 30 of United Provinces Medical Act, 1971, P.S. Hasanpur, District Amroha.

2. Heard learned counsel for the petitioner and learned Additional Government Advocate.

3. It cannot be said that on the allegations in the FIR, no prima facie case is disclosed nor could the petitioner satisfy the Court that this case comes under any of the categories recognized and discussed in the case of State of Haryana versus Bhajan Lal and others, AIR 1992,SC-604 or the full Bench decision of Satya Pal versus State of U.P. and others,2000,Cr.L.J.569 or the full Bench decision of Ajit Singh alias Muraha versus State of U.P. and others,2006 (56) ACC-433, which may justify our interference or pursuade us to quash the FIR.

4. However, by the amendment vide Act No.5 of 2009, which has been notified on 01.11.2010, it has been provided in Section 41(1) (b) Cr.P.C. that a person against whom credible information of being involved in a cognizable offence punishable with imprisonment of 7 years or less is reported to the police officer, the accused can only be arrested if the police officer is satisfied that:

(a) there is probability of the accused committing another offence,

(b) for proper investigation of the offence,

(c) to prevent such person from causing the evidence of the offence to disappear or his tampering with the evidence in any manner,

(d) to prevent such person from making any inducement, threat or promise to the witnesses to disclose such facts to the court or to the police,

(e) unless the person is arrested, his presence in court could not be ensured and the police officer has to record the reasons in writing before making such arrest.

5. The present case is one punishable with imprisonment up to 7 years. The petitioner should, therefore have no apprehension that he would be arrested unless there are conditions justifying his arrest as mentioned above and provided under section 41(1)(b) Cr.P.C.

6. Also under the newly introduced provision, section 41 A Cr.P.C. (which has also been added by Act No. 5 of 2009, effective from 1.11.2010), in all cases where the arrest of such an accused is not needed in view of the provisions of section 41 (1) Cr.P.C., the police officer concerned is required to issue a notice directing the accused to appear before him at a specified place and time. However if at any time the accused fails to comply with the terms of the notice, or fails to identify himself, or the police officer is of the opinion that the arrest is required, he may arrest the said accused after recording his reasons for the same. The police powers of arrest will be subject to any orders that may have been passed by the Competent Court.

7. In case the police officer arrests the accused the Magistrate before whom the accused is produced for an order of remand, shall examine the reasons mentioned in the case diary for arresting the accused for satisfying himself that the arrest has been made in accordance with the exceptional circumstances indicated in sections 41(1) (b) and 41 A Cr.P.C described hereinabove. In case the Magistrate is of the opinion that the arrest has not been made in a bona fide manner, or the grounds for arrest mentioned do not conform with the criteria set out in sections 41(1)(b) or 41 A, the Magistrate may refuse to remand the accused to custody and may release the accused on personal bond with or without sureties after taking an undertaking from the accused to appear before the investigating officer or the Court when required.

8. Such refusal of remand and the consequent release of the accused will not deter the I.O. to arrest him again as and when required strictly in accordance with law.

9. The DGP, U.P. has also issued a circular dated 3.10.11 directing all subordinate pol

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