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Arrest In Breach Of "Arnesh Kumar" Guidelines : Kerala High Court Seeks Explanation From Judicial Magistrate For Remanding Accused

Hannah M Varghese
28 Jun 2022 1:58 PM GMT
Arrest In Breach Of Arnesh Kumar Guidelines : Kerala High Court Seeks Explanation From Judicial Magistrate For Remanding Accused
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The Kerala High Court recently sought an explanation from a Judicial Magistrate for remanding an accused without satisfying if the arrest has been carried out in compliance with the principles laid down by the Supreme Court in Arnesh Kumar v State of Bihar.

A Division Bench of Justice Alexander Thomas and Justice Shoba Annamma Eapen also issued a contempt notice to the Police Officer who carried out the arrest while condemning the lack of response from his side in the proceedings.

The Court also opined that the Magistrate had remanded the petitioners without any application of mind.

"Prima facie, we would also observe that though, the first petitioner had given a statement before the learned Magistrate, the learned Magistrate has not taken into consideration those aspects regarding the harassment said to have been meted out to her by her so called step father and has not cared to make any proper satisfaction as to whether the case of deliberate and premeditated abandonment of the child is made out."

The Court added that it is well established that no arrest can be made merely because it is lawful for the Police Officer to do so.

"The existence of the power to arrest is one thing and justification of the exercise of it is quite another and no arrest shall be made without a reasonable satisfaction reached after some investigation about the genuineness and bonafides of a complaint and a reasonable belief that both as per the person's complicity and even as to the necessity to arrest that person and denial of liberty is a serious matter, etc."

The Court was dealing with a contempt petition alleging patent and flagrant violation of the directives and guidelines issued by the Apex Court in Arnesh Kumar.

A 22-year-old woman was residing with her mother and her child after divorce. She had approached the Police complaining of sexual harassment from her mother's partner who was residing with them. Upon coming to know of the complaint, the mother allegedly threatened her not to return to the house and thereafter filed a complaint alleging that the woman had deliberately and intentionally deserted her child at the mother's residence.

Accordingly, false criminal proceedings were allegedly initiated by the respondent Police Officer. The petitioners were later arrested without any notice by the respondent Officer without being informed of the reasons for their arrest.

They were later brought before the Jurisdictional Magistrate for remand where the woman had given a statement clearly pointing out that she was being harassed by her so-called stepfather. Nevertheless, the Magistrate remanded the petitioners.

The High Court noted that the offences invoked in the case, Section 75 and 87 of the Juvenile Justice Act, came within the ambit of offences covered under Section 41A. The Court also noted that Arnesh Kumar had held that the judicial Magistrate shall be liable for departmental action by the High Court if detention is authorised without recording reasons.

"The Registrar General will forthwith call for a report from the learned Judicial First Class Magistrate, who has rendered Annexure A7 remand order dated 03.02.2022 on Crime No.44/2022 of Elamakkara Police Station, Ernakulam, as to how he could reach reasonable satisfaction, based on the parameters laid down by the Apex Court in the aforesaid decisions and the applicable legal principles and as to why the arrest and remand of both these accused persons was highly imperative. So also, it shall be explained as to how he has ordered that A1 (1st petitioner) is remanded to the District Jail, Kakkanad and A2 (2nd petitioner) is remanded to the Judicial custody to Borstal School, Kakkanad.

The Registrar General will forward a copy of the memorandum of this Contempt Petition with all the Annexures thereto as well as the additional documents to the learned Magistrate, who shall submit his explanation within two weeks from the date of receipt of a communication in that regard by the Registrar General", the Court ordered.

Advocate U Jayakrishnan appeared for the petitioner in the case.

What are Arnesh Kumar Guidelines?

In Arnesh Kumar (supra), the Supreme Court had issued the following directions to prevent unnecessary arrest and causal and mechanical detention:

  1. All the State Governments to instruct their police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
  2. All police officers be provided with a checklist containing specified sub-clauses under Section 41(1)(b)(ii);
    1. The police officer shall forward the checklist duly filed and furnish the reasons and materials which necessitated the arrest while forwarding/producing the accused before the Magistrate for further detention;
    2. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
    3. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
    4. Notice of appearance in terms of Section 41A of CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
    5. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action; they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
    6. Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
    7. Directions aforesaid shall not only apply to the cases under Section 498-A of the IPC or Section 4 of the Dowry Prohibition Act, but also such cases where the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

    The Court noted that notice under Section 41A of the CrPC should be mandatorily served by the Police authorities on the accused within two weeks of the date of institution of the case which was not done in this case.

    Further, failure to comply with these directions renders the responsible Police Officer liable for departmental action and to face punishment for Contempt of Court instituted before the High Court.

    It also says that these directions shall apply to all cases where the offence is punishable with imprisonment for a term less than 7 years or which may extend to 7 years, with or without a fine.

    As such, a report was called for from the Judicial First Class Magistrate who rendered the remand order explaining how he could reach reasonable satisfaction, based on the parameters laid down by the Apex Court in the said decision and the applicable legal principles and why the arrest and remand of both these accused persons were imperative.

    Notably, the Telangana High Court had recently sentenced an IPS Officer and three police officers to 4 weeks of imprisonment in a contempt case for deliberate disobedience of the judgment passed by the Apex Court. The Delhi High Court had also recently held a police officer guilty of contempt of court for arresting a man in violation of the principles laid down by the Supreme Court.

    Case Title: Gopika Jayan & Anr v. Faisal M.A

    Citation: 2022 LiveLaw (Ker) 308

    Click here to read/download the order

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