Lucknow: Lucknow bench of the Allahabad High Court has given a judgement over the SC/ST Act saying that no arrest can be made without giving a notice if the punishment as per the relevant section was less than seven years.
The judgement, which was given on September 10 by the Lucknow bench, said the aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time.
"Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid," the court of Justice Ajay Lamba and Sanjay Harkauli said.
They said that Supreme Court has also given such instructions in the past. The court gave their judgement on a petition moved by one Rajesh Mishra of Gonda, who had pleaded before the court that he should not be arrested before completion of the investigation against them. One Shivraji Devi had filed a case under SC/ST Act against Mishra that he had attacked her family on August 18 last over some old rivalry and made casteist remark on her daughter.
The petitioner has also demanded quashing of the FIR which was filed under Sections 323, 452, 504, 506 Indian Penal Code and Sections 3(1)(Da) and 3(1)(Dha) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,at Khodarey police station in Gonda.
The judges said that counsel appearing on behalf of the state government has admitted that the offences allegedly committed 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 Supreme Court of India in Arnesh Kumar Vs State of Bihar, (2014) 8 SCC 273," they said. The judgement gives a new twist to the ongoing tussle over the SC/ST Act amended by Parliament. UNI