The Supreme Court observed that its judgments have to be dealt with 'due respect' even though High Courts are not subordinate to it.
The judgments of this Court are binding on everyone under Article 141 of the Constitution of India, the bench of Justices BR Gavai and Vikram Nath observed.
In this case, the Sessions Court rejected the remand application made by the Police for remand of some accused on the ground that the mandatory notice under Section 41A of Code of Criminal Procedure was not issued to the them. In its order allowing revision petitions filed by the State, the Telangana High Court made this observation : A parental guidance by the Supreme Court through the judgment in Arnesh Kumar's case is thus not a sword of Damocles either in respect of police officers or Magistrates who exercise the power of arrest and remand respectively.
The Apex Court bench, while allowing the appeal filed by the accused, noted that the observations made by the High Court are totally untenable and unwarranted.
"Though, it is always said that the High Court is not a Court to subordinate to the Supreme Court. However, when the High Court deals with judgments of this Court, which are binding on everyone under Article 141 of the Constitution of India, it is expected that the judgments have to be dealt with due respect", the bench observed.
The court also added that the observations made in the HC order are also not in tune with the observation made in the case of Arnesh Kumar.
Arnesh Kumar Judgment
In Arnesh Kumar, the Supreme Court issued the following directions
All the State Governments to instruct its 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;
All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);
The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
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;
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;
Notice of appearance in terms of Section 41A of Cr.PC 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;
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.
Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
The directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, but also such cases where 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.
Telangana HC's reading of Arnesh Kumar and Section 41, 41A
In the impugned Judgment, Justice Chillakur Sumalatha of the Telangana HC observed that no where in the judgment in in Arnesh Kumar's case , it is laid down that when the case falls within the ambit of Section 41(1) Cr.P.C., there is requirement to issue notice under Section 41-A Cr.P.C. According to the High Court, for exercising the power of arrest under Section 41(1)(b) Cr.P.C, the following conditions has to be satisfied:
Firstly, that the police officer has reason to believe that on the basis of complaint or information or suspicion, the accused have committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years.
Second condition to be taken care of is that the police officer has to be satisfied that arrest of such persons is necessary to prevent such persons from committing any further offence or for proper investigation or to prevent such persons from causing the evidence to disappear or to prevent such persons from tampering with such evidence or to prevent such persons from making any inducement, threat or promise to any person acquainted with the facts of the case, or on finding that unless such persons are arrested, their presence in the Court whenever required cannot be ensured.
If any of the above conditions as laid down under Section 41(1)(b)(ii) are complied with along with compliance of Section 41(1)(b)(i) Cr.P.C., the police officer would well be empowered under Section 41(1)(b) Cr.P.C., to effect arrest of such person, it was observed. The judgment further observed that the Trial Court erred by 'ill-reading and misinterpreting' the judgment in Arnesh Kumar's case.
For parties(s) Mr. Atmaram S. Nadkarni, Sr. Adv. Mr. Sidharth Dave, Sr. Adv. Mr. Piyush Beriwal, AOR Ms. Divya Srivastava, Adv. Ms. Vidhi Thaker, Adv. Mr. Dushyant Dave, Sr. Adv. Mr. Sidharth Luthra, Sr. Adv. Mr. Dama Sashadari Naidu, Sr. Adv. Mr. J. Rama Chandra Pal, Sr. Adv. (AAG) Mr. P. Mohith Rao, Adv. Mr. Rohit Kumar Singh, AOR Mr. N. Srinivas, Adv. Ms. Sweena Nair, Adv. Mr. S. Udaya Kumar Sagar, AOR Mr. Angaj Gautam, Adv. Mr. Sarthak Karol, Adv. Mr. Tanmay Mehta, Adv. Mr. Sourabh Gupta, Adv. Mr. Puneet Yadav, Adv. Mr. Abhay Singh, Adv. Mr. Parijat Kishore, AOR
Constitution of India, 1950 ; Article 141 - High Court is not a Court to subordinate to the Supreme Court. However, when the High Court deals with judgments of this Court, which are binding on everyone under Article 141 of the Constitution of India, it is expected that the judgments have to be dealt with due respect.