Delhi HC Sends Police Officer to Prison for a Day for Violating Arnesh Kumar Guidelines

The Delhi High Court sentenced a police officer to 1-day imprisonment as he had arrested a man in defiance of the guidelines laid by the Supreme Court in Arnesh Kumar v. State of Bihar. The man arrested was detained for 11 days before bail could be granted to him.

The case against the man was of criminal breach of trust having a maximum sentence of three years and hence notice of appearance was needed to be served in order to arrest and if exceptional circumstances pleaded, reasons for the same were to be recorded.

“The requisite notice was not served upon the petitioner. There were mere allegations of criminal breach of trust against the petitioner, which entailed a maximum sentence of three years. It did not warrant the arrest of a person in the manner in which it was done,” said Justice Najmi Waziri.

Explaining the nature and consequences the Court stated:

"No amount of explanation to the neighbors or those who may have seen the arrest, would undo the embarrassment and indignity suffered by the petitioner and his relatives. Arrest and incarceration destroys a person and collaterally affects many other innocent relatives. Subsequent release or acquittal of an innocent, is of no solace and offers no reparation to the loss of reputation or for the temporary loss of precious personal liberty."

Further the Court highlighted that the right to personal liberty was granted by the Constitution and could only be curtailed by a procedure established by law. In case this procedure, in the present case that under Section 41A Cr.P.C. is violated, it may not only affect the petitioner but the whole family.

The police officer even tendered an apology, however the court refused to accept the same and imposed a fine of Rs. 2000 as well as nominal costs of Rs.15,000 to be paid to the petitioner.

The complete order may be read here: 

SC Guidelines in Arnesh Kumar

In Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, having apprehensions related to arrest under Section 498-A of the Indian Penal Code, 1860 and Section 4 of the Dowry Prohibition Act, 1961, the Court ordered that no arrests will be made automatically in cases under Section 498-A.

Examining the statistics highlighted the increase in marital disputes and rampant misuse of Section 498- A to make arrests and harass the husband’s family, the court said:

“The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal."

The Court further elucidating the role of magistrates and police officers in making arrests, laid the following guidelines:

1. State governments had to instruct police officers to not directly arrest person when registered with offence under S. 498-A. It may be necessary when it falls under Section 41 of the CrPC.

2. Checklist under Section 41 (1) (b) (ii) need to be given to all police officers.

3. While producing accused before magistrate for further detention, this check list to be duly filled and also having the reason and material necessary for making the arrest

4. Relying on this report and only after recording the reason for arrest and on magistrate’s satisfaction, will further detention be granted.

5. If not arresting accused, this decision be forwarded to magistrate within two weeks from when case instituted with copy of Magistrate extended by the Superintendent of police of the district for the reason to be recorded in writing.

6. Notice of Appearance as per Section 41-A CrPC is to be served to accused within two weeks from when case instituted and which may be extended by the Superintendent of Police after recording the reason in writing.

7. If directions not complied with, police officers liable for contempt of Court before the High Court having jurisdiction.

8. If detention is authorized by Judicial magistrate without recording reasons, they be liable for departmental proceedings by the High Court.

9. Further, these directions were to not only apply to cases under Section 498-A or Section 4 of the Dowry Prohibition Act, but also all such cases where offences are punishable with seven years or lesser imprisonment, irrespective of the fine.

10. The copy of this order was to be forwarded to all the chief secretaries and DGPs of all the states and Union territories as well as the Registrar Generals of all high courts in order to ensure compliance with.

Previously, the judgement has been cited in cases whereby bail was granted if the arrest were not in compliance with the guidelines e.g. interim bail of comedian  Munawar Faruqi (Munawar v. State of Madhya Pradesh, Writ Petition (s) Criminal No.(s) 6/2021.)

Contempt cases and liability of police officers:

1              In 2017, when these guidelines were not adhered, a contempt case- Pankaj Goyal v. Dushyant Tyagi, COCP No. 283 of 2016 was filed in the Punjab and Haryana High Court. However, delivering on the lines of the Government’s contention that high courts can’t initiate contempt proceedings or provide punishment in cases of contempt of the Supreme Court as previously held in Vituasah Oberoi & ors. vs. Court on its own motion (Criminal Appeal No. 1234 of 2007), the petitioner was allowed to withdraw his case.

2              In Jaikanth v. State of Karnataka (CRL.P. NO.4306/2019), the Karnataka HC quashing the FIR filed against S Jaikanth (admin of Facebook page named Troll Maga), not only reprimanded the police over their act of Fundamental rights violation, but also imposed a fine of Rs. 1 lakh, to be solicited from the officers involved with the arrest. Further, the Court also directed the DGP and Inspector General of Karnataka Police to conduct enquiry against these officers involved. The Judicial magistrate who had remanded Jaikanth even though anticipatory bail was granted by the Court was ordered departmental action against by the HC.

3              The Telangana HC dated 24.01.2021 order Ramadugu Omkar Varma v. Shri Ashok Naik (Contempt Case No.1179 of 2019) and Madras HC order dated 11.02.2021 in Mariappan v. J.K. Tripathy, Contempt Petition (MD) No.1711 of 2019 are other such examples of Contempt cases. In the former case, complaint being registered under Sections 420, 354 and 509 of Indian Penal Code, 1860, the said offences not being punishable with more than seven years imprisonment, the petitioner however was arrested without issuing a notice under Section 41-A of the CrPC. The Court acknowledging the deprivation of the petitioner’s personal liberty as due process of law was not followed, the police officer was levied a fine of Rs. 2000 and 4-week imprisonment. In the latter case, there being a complaint against the petitioner on a financial transaction as to when the complainant went to the petitioner for getting a Rs. 5, 00, 000 /- loan, the petitioner arranging for the loan through Santosh Kumar, obtained mortgage on complainant’s properties as security in the favour of himself. When the loan amount was repaid to the petitioner, he in turn did not pay it to Santosh Kumar and also did not cancel the registered mortgage deed.

When the complainant made a complaint to the SP, Virudhunagar, a police inspector from district crime branch, Virudhunagar, registering a case against the petitioner under Sections 406, 420 and 34 IPC, also arresting them and remanding to judicial custody. In this case however, the inspector justified the arrests on the basis that the petitioners are indulging in similar offences. Thus, for smooth course of proper investigation and preventing them from tampering the evidence or any threat or promise to any person that may be knowing the facts of the case, the officer made the arrest. There was no willful deliberation on her part.

Further the officer had also made an unconditional apology if any part of the Supreme Court orders were violated. Further, the Judicial magistrate was also satisfied by the remand report. The Court in this case further referring to other two contempt cases (viz. Cont.P.No.16 of 2008 dated 26.09.2008 and in Cont.P.(MD). No.974 of 2014 dated 18.08.2014), observed that the Court has showed leniency and left with a warning. Accordingly, the Court dismissed the case by directing the DGP to apprise its officers by circulating a memo with the law as laid in the Supreme Court order.

4              In November 2021, the Telangana HC in V. Bharath Kumar v. State of Telangana (CRL.P. No. 8108/ 2021), elucidating the duty of the police officers to follow the procedure, it stated caution:

“Any deviation in this regard (procedure under Section 41A CrPC and Arnesh Kumar Guidelines) will be viewed very seriously”

In this case, the petitioner had filed an application for anticipatory bail under Section 438 CrPC, as he had duped the complainant. Thus, he was booked under Sections 406, 420, 504 and 506 IPC and the police instead of following the procedure under Section 41A CrPC threatened the petitioner with arrest.

Thus, the Court held:

"If the petitioner is aggrieved by the action of the police in not following the procedure contemplated under Section 41-A Cr.P.C. and resorting to other means and measures by threatening him to compromise the matter, petitioner is at liberty to initiate appropriate proceedings against the officers concerned. It is further directed that having issued notice under Section 41-A Cr.P.C., the police are bound to follow the procedure and the guidelines issued by the Hon'ble Apex Court"

5              The Court in M.A Khaliq v. Ashok Kumar (LL 2021 SC 472), whereby the wife had complained against the husband of offence under Section 498-A, the husband had prayed before the Court that his arrest not be made without a notice as per procedure under Section 41 A CrPC, to which the Court ordered that the Arnesh Kumar guidelines be followed. Despite this he being detained, he filed a case of contempt and the Court had sentenced the police officer for three months imprisonment. This order was set aside by the division bench on grounds that no crime was registered and the guidelines were hence not applicable, however, the Supreme Court found this Division bench order not only violative of the Arnesh Kumar guidelines, but also D.K. Basu v. State of West Bengal. Thus. even though crime was not registered, the Arnesh Kumar guidelines apply. The Court restored the single bench order and reduced the sentence to 15 days.

Implications for jurisprudence:

As also earlier understood, many High Courts have made directions not only to the police officials but also the Judicial magistrates who have the onus of issuing remand.

1. The Judicial magistrate who had remanded Jaikanth even though anticipatory bail was granted by the Court was ordered departmental action against by the Karnataka HC in Jaikanth v. State of Karnataka (CRL.P. NO.4306/2019), mentioned above.

2. Similarly, in a petition that came up before the Patna HC in Kundan Kumar v. State of Bihar & Ors. (WP (Crl) No. 1703/2019) whereby the judicial magistrate had very casually remanded custody of the accused without satisfying the necessity for arrests and such remands continued to be passed for three months, the Court said that it not just being a formality, the Judicial officers are not equivalent to mere post officers and they have to necessarily examine the record  and then record their satisfaction as to the necessity of detaining the accused. Further, in this petition, the Court directed the Patna judicial academy director to train the magistrates in matter of custody and remand applications

De-congestion of prisons:

With the increase in number of arbitrary arrests not confining to the guidelines, a petition was filed in the Apex Court which sought its direction so that the guidelines are properly followed by the Police officers. Statistics stated by the plea are:

“The national average prison occupancy rate was 18.5% as of 31 December 2019 according to the National Crime Records Bureau Prison Statistics India 2019 Report. According to the same report several States and territories have had a glaring occupancy rate including Delhi (174.9%), Uttar Pradesh (167.9), Uttarakhand (159%), Meghalaya (157.4%), Madhya Pradesh (155.3%), Sikkim (153.8%), Maharashtra (152.7%) and Chhattisgarh (150.1%)"

The bench presided by the former Chief Justice of India SA Bobde refused to entertain this plea filed by law researchers Ameya Bokil and Srujana Bej on grounds that prayers in the writ petition were “broad and general” and though, specific instances of arrests in petty offences amidst the pandemic and as against the guidelines were brought in front of the Court, it was suggested by the Chief Justice of India that contempt cases be filed if the order conditions are violated by arrests. Hence, the petition was withdrawn with liberty to file a new one.

However, during the second wave of Coronavirus, the Apex Court in May, 2021 while passing directions in order to de-congest prisons in Re: Contagion of Covid 19 Virus in Persons, Suo Motu Writ Petition(C) No.1/2020, while listing measures to be followed, firstly reiterated the need of strict adherence to the Arnesh Kumar guidelines when making arrests.

Further, the compliance of this order in the state of Madhya Pradesh was examined in Reference (Suo Motu) v. The State of Madhya Pradesh and Others (WP/08391/2020). The Madhya Pradesh High Court having set up a high power committee for reviewing the situation, when apprised of the non- compliance of various resolutions taken by the committee, the Court directed it to:

1. Meet again and review the situation in order to evaluate compliance

2. Examine cases of anticipatory bail being rejected and advisability to file new applications

3. To impart to the DGP to comply with the guidelines

Checking compliance to Section 41-A

In Vimal Kumar & Ors. v. State of UP & Ors. (Criminal Misc. Writ Petition No. 17732 of 2020), filed before the Allahabad High Court, whereby dowry was demanded from daughter-in-law by a family and complaint filed, the police officer regularly visited the accused’s home and thus the plea for following the procedure. The Court being aggrieved by the fact that even in cases where punishment is less than 7 years, the police has been routinely arresting the accused and repeatedly writs are being filed, elucidated the object of Section 41- A to be that person not having committed heinous crime and not requiring detention, be not arrested. Further the Court studying the judgement in Manav Adhikar & Anr. v. Union of India & Ors., Writ petition (civil) no. 73 of 2015, made the following observations:

1. In the initial stages of accused not being proven guilty, like where accused has to be detained after investigation as under Section 170(I) and Section 41(I)(b)(ii)(e) Cr.P.C or in case the person surrenders,  the bail is to be considered expeditiously rather than mechanically.

2. Focused on interim bail in appropriate cases

3. Remand magistrates to not grant remand if preconditions for granting same as listed in sections 41(1)(b) and 41 A Cr.P.C are not fulfilled if penalty is 7 years imprisonment. Further, also not in malafide cases. It also sounded caution on granting remand routinely and that the repeated entry in case diary of the above-said pre-conditions are not sufficient for approving arrest.

4. The Court also directing the magistrates to report names of police officers that according to their opinion make mechanical or malafide arrests in order to take action may be taken against them. This can be done by the magistrate informing the Registrar of the High Court through the District Judge. Further, action is to be taken against such officials by directing the DGP accordingly or contempt proceedings to be filed in the Court.

5. Compliance with Section 41 A to be reviewed in monthly meetings by district judges, administration and superior police officials.

Similarly, in June 2021, the Madhya Pradesh High Court in Zarina Begum v. State of Madhya Pradesh through P.S. E.O.W highlighted the issue that district judges were extremely tight fisted with granting bail as they may be apprehensive that the same maybe complained to the High Court and enquiry proceeding be initiated. However, the Court emphasizing on the need of a fearless judiciary gave directions to the magistrates and police officers on the lines of Supreme Court order in Arnesh Kumar and its implementation as follows:

Direction to police officers:

1. Unless a special statute needing arrest in case of offences with imprisonment up to 7 years, no arrest by police by ordinary course.

2. In such cases, the police needs to record reasons necessitating arrests such as to prevent from committing offence further, etc.

3. Checklist of pre-conditions fulfilled by police under section 41(1)(b)(ii) Cr.P.C, for offences with imprisonment up to 7 years and the same needs to be furnished before the magistrate along with remand application.

4. If decision is to not arrest, police is to intimate the magistrate within 2 weeks of FIR registration and the period can be extended by SP if reasons in writing.

5. If interrogation required, notice in terms of section 41A Cr.P.C or s. 160 Cr.P.C has to be served to the accused within 2 weeks of registering FIR and the period can be extended by SP if reasons in writing.

6. If police does not arrest accused and if on notice, he himself surrenders, then police may not arrest except for compelling reasons which are to be recorded, as per para 31.2.

7. If police does not perform accordingly, contempt proceedings can be filed and administrative action can be taken.

Direction to magistrates:

1. The magistrates while giving remand are to make sure that:

2. Arrest satisfies requirements under Section 41 CrPC

3. The check list as ordered in the Supreme Court guidelines is there

4. If paras 11.2/11.3 of the Arnesh Kumar guidelines are not complied with, the arrest being unlawful, further detention is not to be authorized and accused is to be released.

5. Independent satisfaction is recorded while authorizing detention and for further detention, this satisfaction stand in compliance to para 11.4 of the Arnesh Kumar guidelines.

6. Satisfy that specific reasons for arrest are recorded and also that they are relevant

7. and raise a reasonable conclusion that one of the conditions for further detention is satisfied.

8. If the magistrate fails to follow any of these, administrative proceedings may be initiated.

 The Court also listed the factors that were to be considered while granting bail as follows:

1. If bail is granted, will it help the person attempt and influence the witness or course of investigation by threatening or monetary inducement.

2. In case of recidivists or repeated offenders, the probability of person committing another crime if released on bail to be considered.

3. The probability that the complainant may take a revenge action against the accused.

4. Whether there is reasonable apprehension that release may breach peace and result in social or civil unrest giving regards to the nature of the offence alleged against him.

5. Whether evidence can be destroyed which has not been collected during investigation.

6. Prima facie evidence is indicative that the person may abscond if given bail.

In the particular case, the Court giving bail the directions given were directed to be circulated to all districts including to the lowest functionaries.