JUDGMENT :

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.

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 sub-section (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 whic