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Consider Framing Guidelines For Issuance Of Notice Of Appearance Before Police Officers U/S 41A CrPC: Jharkhand HC To State Govt

Sparsh Upadhyay
26 Jun 2022 7:54 AM GMT
Jharkhand High Court,

In an important order, the Jharkhand High Court has asked the State of Jharkhand to consider framing appropriate guidelines regarding issuance of notice of appearance before police officers under Section 41A CrPC so that Jharkhand Police may be referred to as a Model Police.

The bench of Justice Sanjay Kumar Dwivedi also referred to the Delhi High Court's 2018 ruling [Amandeep Singh Johar V. State of NCT of Delhi & Anr] wherein guidelines for issuing a notice of appearance before police officers under Section 41A of the Code of Criminal procedure were laid down.

In April 2018, the Bench comprising the then Acting Chief Justice Gita Mittal had noted that the guidelines were being framed to ensure "transparency in the working of the police machinery and ensuring justice to suspect accused persons as well as those required to appear before the police".

Read more about Delhi HC's order and guidelines here: Delhi HC Lays Down Procedure For Issuance Of Notice Of Appearance Before Police Officers U/S 41A Cr.P.C.

The Jharkhand High Court has issued this order in view of the non-compliance of Chapter VI of CrPC by Jharkhand Police with respect to service of summons i.e. 41A CRPC notice.

The Court in the instant case also quashed an FIR filed under section 498A in view of the lack of territorial jurisdiction and expected that Jharkhand police would become model police by adopting the format of notice under section 41A CrPC as prescribed by the Delhi High Court in case of Amandeep Singh Johar.

Noting that in the instant case, petitioners 1 and 2 have been arrested without following the due process of law, the Court asked the State of Jharkhand to come forward with certain guidelines so that in such matters, which is trivial in nature, the innocent people may not be arrested only due to highhandedness of the police

The case in brief

In the instant case, a woman had lodged an FIR under section 498-A IPC against her in-laws and her husband alleging that they used to harass and torture her in connection with a demand for dowry. The woman is presently residing in Germany in the house of her husband.

Pursuant to the lodging of an FIR, in April 2021, the Judicial Magistrate, 1st Class, Jamshedpur issued six non-bailable warrants of arrest. Challenging the same, the in-laws and the husband moved to the High Court seeking a quashing of the FIR.

Essentially, the following three arguments were put forth by the petitioners:

- Without serving of notice under Section 41-A of the Cr.P.C. that too in a case under Section 498-A, the nonbailable warrant of arrest had been issued,

- Jamshedpur court is not having the territorial jurisdiction, as the alleged occurrence has taken place at Kolkata or at Germany and

- The allegations are general and omnibus against the petitioner Nos. 1 to 5.

It was also submitted by them that the petitioner Nos. 1 and 2 (father-in-law and mother-in-law) were arrested by the State Police without the aid of the local police at Kolkata and brought to the Jamshedpur Court without any command of Kolkata police.

The Court was also informed that both of them were not produced before the Court within 24 hours of their arrest and only after filing of the bail application, they were produced after 48 hours, and for this lapse on behalf of the police.

On the point of serving of notice under S. 41-A CrPC, the State submitted that notices were indeed sent under Section 41-A Cr.P.C. upon two addresses (allegedly of the petitioners), i.e. at the Bihar address and also at the old address of Kolkata, but both the addresses were found locked.

Court's observations

At the outset, the Court noted that petitioners Nos. 1 and 2 had changed their flat, that's why Section 41-A Cr.P.C. had not been served upon them, however, the new address was well known to the police.

In this regard, the Court said that it was incumbent upon the police that if the notice under Section 41-A Cr.P.C. was returned, at least it is required to be pasted at a conspicuous place, which has not been done in the case in hand.

Further, referring to the Apex Court's ruling in the case of Arnesh Kumar V State Of Bihar (2014) 8 SCC 273, the Court stressed that time and again the Supreme Court, as well as the High Courts, have issued the guidelines on how to proceed in the case under Section 498-A of the Indian Penal Code.

"Nowadays, the people are being arrested because the police is having the power and without application of mind that too in a case of Section 498-A of the Indian Penal Code, then the role of Article-21 of the Constitution of India comes into play."

Regarding the mode of arrest and delay in producing the petitioners 1 and 2 before the Court, the HC said that the arrest had been made without following the procedure of law and therefore, it left the question of getting compensation from the state in view of the fact that the liberty of two old-aged persons has been taken away.

Further, the Court stressed that a wife, who is ousted from the house and residing along with her parents at that particular place also, can file a case where she is residing [see Rupali Devi v. State of Uttar Pradesh & Ors.], however, in the instant case, since the wife is residing in Germany in her husband's house, therefore, the Court held that Jamshedpur police was having no jurisdiction to lodge the FIR.

"Looking into the written statement and the allegations disclosed therein is either happened at Kolkata or at Germany, thus even assuming that if the allegations are correct, the court at Germany and Kolkata are having the jurisdiction and not at Jamshedpur, in view of the fact that the O.P. No. 2 has not been thrown from the house, rather she is residing in the house of her husband at Germany...," the Court observed.

Further, looking into the facts and allegations as narrated in the FIR, the Court observed that there were general and omnibus allegations against the petitioners, except the husband of the wife.

Therefore, the Court held that no specific and distinct allegation had been made against the petitioner Nos. 1 to 5, further, and therefore, the Court held that on the point of territorial jurisdiction, the case of the husband also succeeds.

Accordingly, the FIR, including the order dated 03.04.2021, passed by the learned Judicial Magistrate, 1st Class, Jamshedpur, whereby six non-bailable warrants of arrest were issued against the petitioners, were quashed.

Case title - Mahesh Kumar Chaudhary and others v. State of Jharkhand and others

Citation: 2022 LiveLaw (Jha) 61

Click Here To Read/Download Order

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