A single-Judge bench of the Kerala High Court recently directed the District Police Chief to initiate an enquiry into the conduct of an Investigating Officer, who arrested an accused in a sexual harassment case, in contravention of a Full Court's direction against arrest unless the same is inevitable during the COVID-19 pandemic.
On March 25, 2020, the Full Bench of the Kerala High Court comprising of Chief Justice S Manikumar, Justice CK Abdul Rahim and Justice CT Ravikumar had ordered, "right of personal liberty guaranteed under Article 21 of the Constitution of India should not, at any rate, be infringed by arresting an accused, except in matters where arrest is inevitable." The court had also ordered that the persons who are involved in offences, in which the maximum punishment is below 7 years should be released on bail.
The above directions were issued in view of the Supreme Court's order dated March 23, In Re : Contagion of Covid 19 Virus In Prisons, with a view to minimize the number of inmates inside prisons during the pandemic crisis.
In the present case however, the bench of Justice PV Kunhikrishnan noted that the arrestee had been taken into custody despite being accused of a bailable offence under Section 354 A of IPC and other offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO), where the maximum punishment was that upto 7 years.
In view of these circumstances the bench remarked,
"In total violation of the directions of the Full Bench of this Court and the directions of the Apex Court, the investigating officer in this case arrested the petitioner."
The court stated that the IO could not take the defence that he was not aware of the said direction of the Full Bench as the same had been widely publicized by the concerned authorities of the court.
"It is also to be noted that the decision of the Full Bench is published in all media and the investigating officer alone cannot say that, he was not aware about the decision of the Full Bench of this Court," the bench said while directing institution of an enquiry against the IO.
The court ordered,
"In such circumstances, according to me, an enquiry is necessary against the Arresting Officer in this case. I am not making any further observations against the Arresting Officer because he is not heard at the time of hearing the bail application. But a senior officer should conduct an enquiry and the enquiry report should be submitted before this Court. Otherwise, there will not be any respect to the decision of the Full Bench of this Court."
The court has now directed the District Police Chief, Palakkad to conduct an enquiry regarding the conduct of the Police Officer, who arrested the petitioner in this case, when a general direction issued by the Full Bench regarding arrest of the citizen was in force.
The court also noted that the arrest was effected when an Anticipatory Bail Application under Section 438 CrPC was pending before the High Court.
The court has directed the DPC to conduct the enquiry either himself or through a Senior Police Officer, and to submit an action taken report before the Registrar General of the High Court, within 30 days.
Further, the court allowed the bail application of the Petitioner-accused on noting that Section 354A of IPC is bailable and the applicability of the remaining offences that the accused was charged with viz., Section 7, 8,9 and 10 of the POCSO Act, were a matter of further investigation.
It thus directed that the Petitioner-accused be released on bail on executing a self-bond ensuring that he will appear before the Court concerned as and when required. Further, he shall report before the Station House Officer of the Jurisdictional Police Station and shall furnish his phone number and the place where he is going to reside.
The court has also directed that the Petitioner shall, within one week from the commencement of the functioning of the jurisdictional court, if the court is not functioning at present, execute a bond for Rs.50,000/- with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court.
Case Title: Prasad v. State of Kerala & Anr.
Case No.: BA No. 2827/2020
Quorum: Justice PV Kunhikrishnan
Appearance: Advocates Jacob Sebastian, KV Winston and Anu Jacob (for Petitioner); Public Prosecutor Ajith Murali & Santhosh Peter(Sr) (for Respondent)
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