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Court No. - 37

Case :- APPLICATION U/S 482 No. - 6235 of 2021

Applicant :- Musarrat Ali And Another

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Prashant Kumar Singh

Counsel for Opposite Party :- G.A.

Hon'ble Dr. Kaushal Jayendra Thaker,J.

1.

This application under Section 482 Cr.P.C. has been filed with a

prayer to quash the entire criminal proceedings as well as charge sheet

dated 6.2.2020 arising out of Case No.6760 of 2020 ( State Versus

Faiji Ali and others) arising out of Case Crime No.0011 of 2020,

under Sections 498A, 323, 504 of IPC and Section 3/4 Dowry

Prohibition Act, Police Station Anvarganj, District Kanpur Nagar

pending in the Court of M.M. Ist, District Kanpur Nagar.

2.

We are facing Covid-19 pandemic.

3.

Instead of keeping this petition pending or summoning the

private respondent, practical solution would be that the applicants

may approach the Court below as almost allegations against them are

covered by Section 41A Cr.P.C namely arrest may not be warranted.

4.

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. are concerned, they ispunishable for two years or with fine.

As far as Section 506 I.P.C. is concernd, it is punishable for two years

or fine. Part-II of 506 I.P.C. is punishable up to seven years and or

fine. All these are within the purview of Section 41A of Cr.P.C. 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

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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 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

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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