Kerala High Court Directs Police To Serve Section 41A CrPC Notice To Shajan Skariah Before Arrest In Cases Against Him

The Kerala High Court on Wednesday directed that Shajan Skaria, editor of YouTube channel Marunadan Malayali, shall not be arrested without first issuing a notice under Section 41A Cr.P.C. or a notice intending to arrest stating a non-bailable offence against him. The Court further directed that such notice shall grant Skaria 10 days' time.

The Court passed the order while considering the plea filed by Skaria seeking directions to be issued to the State Police Chief not to arrest him without granting him sufficient opportunity to explain his stand, or without issuing notice under Section 41A Cr.P.C. The petitioner further sought necessary directions to be issued to the Home Secretary to to issue necessary directions in light of the Apex Court decision in Kumar Antil v. Central Bureau of Investigation & Ors. (2022), wherein it had been held that the accused would be entitled to be in case of any non-compliance of Section 41 and 41A Cr.P.C..

Justice P.V. Kunhikrishnan orally asked today why Skaria was sought to be arrested without issuing notice. 

"Supreme Court also passed an order in this regard...now you're behind this man. Don't arrest him without any notice. He should be given an opportunity to content his case as per law. I will make it clear that if there is any ground to arrest, after complying with Section 41A, you can arrest," the Court orally remarked. 

During the hearing today, the Counsels for the petitioner argued that more than 107 cases have been registered against Skaria on the same set of facts. It was averred that the petitioner was not even aware of the crime numbers and the offences alleged in those cases, and was thus not in a position to approach the competent court to avail the legal remedies. 

However, the Court responded that Skaria had levelled serious allegations against an MLA, without even impleading him in the present matter. It even asked the counsel to advise their client that the four 'Ws of Journalism' ought to be followed. 

The bench was referring to a recent judgment delivered by another Single Bench of the High Court which refused anticipatory bail to Skaria in the criminal case in connection with his statements against MLA Sreenijin. "The four W's of journalism that used to guide journalists in their reporting and helped in ensuring accuracy and completeness of news stories are: Who, What, When and Where. The four W's and sometimes the fifth “Why” used to serve as a framework for journalists to gather information. Videos like the one under consideration makes one wonder whether the W's have been replaced with D's; Defame, Denigrate, Damnify and Destroy," the Single bench had held therein.

The petitioner however responded that they were not pressing the allegations in that case in the present plea. 

The matter was taken up again at 1.45 P.M. at the request of DGP T.A. Shaji who contended that since Skaria has several cases against him, it would not be possible to issue notice in every case. It was submitted that if notice under Section 41A Cr.P.C. is issued, there would arise a problem in arresting the petitioner in appropriate cases. The Court then explained that Skaria would have to be granted only 10 days' time in the notice, and no further time. The DGP added at this juncture that Section 41A notice ought to be issued on case specific basis. 

The Court, on taking note of the peculiar facts of the case, thereby directed the investigating officers to issue notice under Section 41A CrPC or a notice informing that a case is registered alleging non-bailable offences, giving him 10 days time. 

The Court further directed Skaria to hand over the address where he shall be available, as well as his personal email address to the police officer within two days. It was directed, "After issuing notice, and the period in the notice is over, the investigating officer can proceed in accordance with the law," the Court added while disposing the plea. 

The Court also clarified that the present Order would not constitute a precedent, and would not apply to a bail application in another case by the petitioner, that is currently pending. 

Skaria had earlier been granted interim protection from arrest by the Apex Court in the appeal against the High Court's refusal to grant him anticipatory bail in the case pertaining to alleged broadcast of the derogatory news item against MLA Sreenijin.  

The anticipatory bail plea has been moved through Advocates S. Rajeev, V. Vinay, M.S. Aneer, Sarath K.P., Prerith Philip Joseph, and Anil Kumar C.R.

Case Title: Shajan Scariya v. State of Kerala & Anr.

Case Number: W.P.(C) NO. 23279 OF 2023

Citation: 2023 LiveLaw (Ker) 339

Click Here To Read/Download The Judgment