HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL MISC. WRIT PETITION No. - 19547 of 2025 Court No. - 48 HON'BLE CHANDRA DHARI SINGH, J. HON'BLE LAKSHMI KANT SHUKLA, J. 1. Heard learned counsel for the petitioner, learned A.G.A. for the State and perused the record. 2. The instant writ petition has been filed with the following prayer: I) Issue a writ, order or direction in the nature of certiorari quashing the impugned First Information Report dated 28.08.2024 registered as Case Crime No. 555 of 2024, under sections 191(2), 115(2), 333, 110 BNS, 2023, Police Station Barhalganj, District Gorakhpur. II) Issue a writ, order or direction in the nature of Mandamus, directing the respondents not to arrest the petitioner in pursuance of the First Information Report dated 28.08.2024 registered as Case Crime No. 555 of 2024, under sections 191(2), 115(2), 333, 110 BNS, 2023, Police Station Barhalganj, District Gorakhpur. III) Issue any other writ, order or direction as this Hon'ble Court may deem fit and proper under the circumstances of case. 3. It is submitted by learned counsel for the petitioner that the petitioner has been falsely implicated in the present case due to malafide intention. It is further submitted that no specific role has been assigned to the petitioner. During arguments, learned counsel for the petitioner 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 Versus Counsel for Petitioner(s) : Santosh Kumar Upadhyay, Vinod Kumar Upadhyay Counsel for Respondent(s) : G.A., Sandeep Kumar Chaturvedi Savitri Devi .....Petitioner(s) State Of U.P. And 3 Others .....Respondent(s) 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. 9. Thus, it is mandatory on the part of the investigating officer to record reasons for making arrest as well as for not making arrest in respect of a cognizable offence for which the maximum sentence is up to seven years. 10. However, arrest is not required to be made under Sub-Clause (1) of the amended Section 41 of the Code, the police is bound to issue a notice of appearance to the accused person. Even in such a case, failure to comply with the notice of appearance or unwillingness to identify himself may be grounds for the police to arrest a person to CRLP No. 19547 of 2025 2 whom a notice under Section 41-A of the Code has been issued. 11. The statutory protection under Section 41 and 41-A of the Code is already available, which the police authorities are bound to comply in this case also. 12. Considering the facts and circumstances of the case, the instant writ petition is finally disposed of directing the Investigating Officer to strictly comply with the 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). October 9, 2025 RPD CRLP No. 19547 of 2025 3 (Lakshmi Kant Shukla,J.) (Chandra Dhari Singh,J.) Digitally signed by :- RATAN PRAKASH DWIVEDI High Court of Judicature at Allahabad