- (1.) HEARD learned Counsel for the petitioner, Sri Pritam Yadav for the Respondent No. 4, and the learned Government Advocate. An FIR has been lodged at Case Crime No. 524 of 2006 under Section 498 -A, 323, 504, 506 and 3/4 of the Dowry Prohibition Act, at P.S. Kerakat, District Jaunpur on 26 -4 -2006 at 3.30 p.m. on the basis of an application to the S.P. dated 25 -4 -2006 by the Respondent No. 4, Smt. Rekha Devi. The allegations in the FIR were that the informant, Smt. Rekha Devi, was married to the petitioner Dileep three years' back. The petitioners, who are the mother -in -law Smt. Sudama Devi, father -in -law Banwasi Lal, Jeth Sandeep, Jethani Sanjai, nanand Shobha Devi and husband Dileep were demanding a Hero Honda motorcycle and Rs. 25,000. Her father and brothers sought time to fulfill the dowry demand but again the petitioners caused physical and mental torture to the informant. A son was even born to Smt. Rekha but that did not alter the behaviour of the petitioners. On 4 -3 -2006 at about 7 p.m. the petitioners badly belaboured the informant, denied her food and drink and locked her in a room. At that time her mother Ramratti Devi arrived there. She was also abused by the petitioners. The jewellery and clothes were snatched from the informant and she was sent with her child to her parental home. On 12 -3 -2006 the petitioner Banawasi Lal and Smt. Sudama arrived at her parental house and threatened to spoil her life as well as the life of her child. On 13 -3 -2006 her Jeth and husband Dileep arrived at her parental home alongwith four or five persons and asked them to quietly give Dileep divorce, or else they threatened to abduct the boy Ritik. They left thereafter after threatening to murder and to falsely implicate Rekha Devi and her parents in some cases of theft etc.
(2.) ON a plain reading of the FIR it cannot be said that no cognizable case is disclosed. No ground, therefore, exists for quashing the FIR. However it has been argued that that the informant is not said to have received any injury, and thus there was no corroboration of the allegations which on their face appeared to be exaggerated. The application to the S.P. was lodged belatedly on 25 -4 -2006 when the incident in question is said to have taken place on 4 -3 -2006, 12 -3 -2006 and 13 -3 -2006 and earlier to 4 -3 -2006 and there is no explanation whatsoever for this delay. Moreover, the entire family consisting of father -in -law, mother -in -law, jeth, jethani and nanad have been falsely implicated in an omnibus manner and it would be an abuse of the process of law if the entire family were sent to jail on such vague uncorroborated allegations. In Kans Raj v. State of Punjab, 2000(2) JIC 353 (SC) : AIR 2000 SC 2324, it has been noted that a tendency has grown to implicate all relations of the husband in dowry matters without even considering the specific and overt allegations against them. In this connection para 5 of the aforesaid law report mentions: "A tendency has, however, developed for roping in all relations of the in -laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused." In view, of these contentions and the legal grounds mentioned hereinafter, we are of the opinion that whilst the investigation may proceed, however the petitioners should not be arrested till the submission of the charge sheet, unless this order is vacated or modified earlier. Legal Basis for directions Section 41 Cr.P.C. Section 41 of the Criminal Procedure Code also provides that “Any police officer may without an order from a Magistrate and without a warrant, arrest any person” against whom a cognizable offence is disclosed (Emphasis added). The word used is 'may' and not 'shall'. This suggests that it is not imperative that an accused must necessarily be arrested in all cases where a cognizable report has been lodged against him and that there is a distinction between the power to effect an arrest, and the actual exercise of that power. Joginder Kumar's case
(3.) THE following lines from Apex Court decision in Joginder Kumar v. State of U.P., 1994 JIC 760(SC) : (1994 [31] ACC 431), may be read with advantage: 'No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lockup of a person can cause incalculable harm to the reputation and self -esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely upon the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and justified. " Absence of provision for anticipatory bail in U.P.;