Asfaq Aslam Vs State of Jharkhand and Anr on 31 Jul 2023
A single judge bench of Telangana High Court granted compensation of Rs.2 lakhs for effecting illegal arrest.
From Para 7,
7. There cannot be any iota of doubt that a person who is arrested by the police is looked down by the society. It creates a scar on his personality and character. Arrest in normal course and in compliance with the provision of law, even if it causes injury to the person cannot give rise to cause of action to award damages. However, when there is violation of law and the person is subjected to humiliation and insult, action of the police authorities will have to be condemned in strict terms and consequently compensation in a given case needs to be awarded. The petitioner is well qualified and is working for a reputed company. It is contended that illegal arrest of the petitioner created mental agony, loss of reputation and created permanent scar on his life. Keeping in view the educational qualification and family background of the petitioner, it cannot be said that such statement of loss of reputation, mental agony etc., is an exaggeration. The social status in India varies from person to person. The factors like family background, educational qualification, economical status, profession etc., can be considered for grant of compensation to the victims. Right to live with dignity and self-respect is one of the facets guaranteed under Article 21 of the Constitution of India. No person shall be deprived of his right to live save by due process of law. The unimpeachable record placed before this Court proves that respondent Nos.6 and 7 acted in derogation of law. The notice under Section 41-A(1) of Cr.P.C. was issued without mentioning date and time and without giving sufficient time to the petitioner for compliance, straight away he was produced before the learned Magistrate who remanded him to judicial custody. For such lapses, respondent Nos.6 and 7 were inflicted with punishment in the departmental disciplinary proceedings. Thus, there is a clear violation of mandate of law in Arnesh Kumar’s case (Supra 1) and by doing so, respondent Nos.6 and 7 have infringed upon the fundamental life of the petitioner guaranteed to him under Article 21 of the Constitution of India.
From Para 8,
8. The learned senior counsel appearing for respondent Nos.6 and 7 submitted that respondent No.7 is a young officer having long service and if any further punishment is inflicted by this Court, it would shatter his career opportunities. The learned counsel for the petitioner submitted that Rs.5.00 lakh compensation may be awarded to the petitioner for loss of his reputation in the society on account of his illegal arrest by the erring police officials. However, considering the facts and circumstances of the case, an amount of Rs.2,00,000/- (Rupees two lakhs only) is awarded to the petitioner as compensation for the lapses committed by respondent Nos.6 and 7. Respondent No.1 shall pay the said amount to the petitioner within a period of four (4) weeks from the date of receipt of a copy of this order. Respondent No.1 is at liberty to recover the compensation amount i.e., Rs.1,00,000/- (Rupees one lakh only) each from respondent Nos.6 and 7. So far as the other reliefs are concerned, this Court is not inclined to grant any relief as respondent Nos.6 and 7 were already subjected to disciplinary proceedings and punishment was imposed against them.
Sana Nitish Kumar Reddy Vs State of Telangana on 26 April 2023
A division bench of Apex Court passed the following guidelines with respect to Arrest and Bails
From Para 24,
Satender Kumar Antil Vs CBI and Anr on 11 Jul 2022
24.Section 41A deals with the procedure for appearance before the police officer who is required to issue a notice to the person against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence, and arrest is not required under Section 41(1). Section 41B deals with the procedure of arrest along with mandatory duty on the part of the officer.
25.On the scope and objective of Section 41 and 41A, it is obvious that they are facets of Article 21 of the Constitution. We need not elaborate any further, in light of the judgment of this Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273:
26.We only reiterate that the directions aforesaid ought to be complied with in letter and spirit by the investigating and prosecuting agencies, while the view expressed by us on the non-compliance of Section 41 and the consequences that flow from it has to be kept in mind by the Court, which is expected to be reflected in the orders.
27.Despite the dictum of this Court in Arnesh Kumar (supra), no concrete step has been taken to comply with the mandate of Section 41A of the Code. This Court has clearly interpreted Section 41(1)(b)(i) and (ii) inter alia holding that notwithstanding the existence of a reason to believe qua a police officer, the satisfaction for the need to arrest shall also be present. Thus, sub-clause (1)(b)(i) of Section 41 has to be read along with sub-clause (ii) and therefore both the elements of ‘reason to believe’ and ‘satisfaction qua an arrest’ are mandated and accordingly are to be recorded by the police officer.
28.It is also brought to our notice that there are no specific guidelines with respect to the mandatory compliance of Section 41A of the Code. An endeavour was made by the Delhi High Court while deciding Writ Petition (C) No. 7608 of 2017 vide order dated 07.02.2018, followed by order dated 28.10.2021 in Contempt Case (C) No. 480 of 2020 & CM Application No.25054 of 2020, wherein not only the need for guidelines but also the effect of non-compliance towards taking action against the officers concerned was discussed. We also take note of the fact that a standing order has been passed by the Delhi Police viz., Standing Order No. 109 of 2020, which provides for a set of guidelines in the form of procedure for issuance of notices or orders by the police officers. Considering the aforesaid action taken, in due compliance with the order passed by the Delhi High Court in Writ Petition (C) No.7608 of 2017 dated 07.02.2018, this Court has also passed an order in Writ Petition (Crl.) 420 of 2021 dated 10.05.2021 directing the State of Bihar to look into the said aspect of an appropriate modification to give effect to the mandate of Section 41A. A recent judgment has also been rendered on the same lines by the High Court of Jharkhand in Cr.M.P. No. 1291 of 2021 dated 16.06.2022.
29.Thus, we deem it appropriate to direct all the State Governments and the Union Territories to facilitate standing orders while taking note of the standing order issued by the Delhi Police i.e., Standing Order No. 109 of 2020, to comply with the mandate of Section 41A. We do feel that this would certainly take care of not only the unwarranted arrests, but also the clogging of bail applications before various Courts as they may not even be required for the offences up to seven years.
30.We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41A. We express our hope that the Investigating Agencies would keep in mind the law laid down in Arnesh Kumar (Supra), the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance. Our view is also reflected by the interpretation of the specific provision under Section 60A of the Code which warrants the officer concerned to make the arrest strictly in accordance with the Code.
Other Sources :
There is another Order passed earlier in this very same case with respect to NBW recall here.
Index of Bail Judgments is here.
Supreme Court deprecated such practice of the Police Officer in taking the petitioners into custody without compliance of Section 41(A) Cr.P.C.
Jagdish Shrivastava Vs State of Maharashtra on 11 Mar 2022
Counsel for the petitioners submits that no notice under Section 41(A) Cr.P.C was ever served and after this fact came to the notice of the Investigating officer that SLPs have been preferred by the petitioners for seeking pre-arrest bail, he approached them and took the petitioners into custody on 8th March, 2022.
Since the petitioners have now been in custody, it may not be appropriate for this Court to pass further orders but at the same time, we grant them liberty to file regular bail application.
If such an application is filed, it is expected from the Trial Court to take note of non-compliance of Section 41(A) Cr.P.C and dispose of the application for post-arrest bail, if any, filed by the petitioners within a reasonable time as expeditiously as possible.
We deprecate such practice of the Police Officer in overstepping after the matter being instituted in this Court and taking the petitioners into custody without compliance of Section 41(A) Cr.P.C. and keeping in view the judgment of this Court in Arnesh Kumar vs. State of Bihar & Anr. (2014) 8 SCC 273.
A three-judge full bench of Apex Court held as follows.
M.A Khaliq and Ors Vs Ashok Kumar and Anr on 15 Sep 2021
The report of the Metropolitan Sessions Judge, after due inquiry into the matter sets out the factual details of the matter. The report indicates that the contempt petitioner was not only summoned to Akividu Police Station in the name of counseling but was also detained. In the circumstances, there was clear violation of the directions issued by this Court not only in Arnesh Kumar but also in the case in D.K. Basu v. State of West Bengal.
The mere fact that no crime was registered, could not be a defence, nor would it be an escape from the rigour of the decisions rendered by this Court. As a matter of fact, summoning the person without there being any crime registered against him and detaining him would itself be violative of basic principles.
In the circumstances, the Division Bench was not right and justified in setting aside the view taken by the Single Judge of the High Court. We, therefore, allow this appeal. While setting aside the decision of the Division Bench of the High Court, we restore the decision of the Single Judge.
However, considering the facts and circumstances on record, the substantive sentence of three months as recorded in paragraph 32 of the decision of the Single Judge is modified to 15 days leaving rest of the incidents of sentence completely intact.
The contemnor shall surrender himself before the Registrar of the High Court within two weeks from today.
Other Sources :
Division Bench decision is here.Ashok Kumar Vs M.A.Khaliq on 18 Jul 2019
Single Judge decision is here.M.A Khaliq and 2 Ors Vs Bhaskar Bhushan and Anr on 20 Nov 2018
Review petition was filed but withdrawn by the contemnor himself.Ashok Kumar Vs M.A.Khaliq on 30 Mar 2022
A single bench decision from Telangana High Court passed these guidelines.
V.Bharath Kumar Vs State of Telangana
Hence, this Court feels that an alternative mechanism shall be evolved to address the plight of these under-trial prisoners / accused:
- Parties Advocates shall download the order copy from the High Court’s Website along with case details which are available in the case status information
- While filing the memo on behalf of accused for furnishing sureties, the Advocate shall state in the Memo that he / she has downloaded the order copy from the High Court’s Website. The Administrative Officer Chief Ministerial Officer of the Court concerned shall verify the order from the High Court’s Website and make an endorsement to that effect and then shall place the same before the Court.
- The Public Prosecutor shall also obtain necessary instructions in this regard and assist the Court.
- The Presiding Officer, on the same day, shall dispose of the same and dispatch the release order to the jail authorities concerned forthwith through e-mail or any other electronic mode.
- In cases of anticipatory bail, the burden to verify the authenticity of the copy is on the Station House Officer concerned and if necessary, he should obtain necessary instructions from the Public Prosecutor’s Office and complete the process on the same day expeditiously as per law.
- The jail authorities on receipt of the release order shall release the accused forthwith.
- Registrar (Judicial) shall communicate copy of this order to:
- The Principal Secretary for Home Affairs, State of Telangana,
- The Director General of Police, State of Telangana,
- The Director of Prosecution, who, in turn, shall sensitize the police officers Station House Officers / Public Prosecutors and ensure implementation of this order
- Registrar (Judicial) shall communicate copy of this order to all the Principal District Judges in the State, who, in turn, shall sensitize all the Presiding Officers and ensure implementation of this order.
- Registrar (Judicial) is further directed to circulate the copy of this order to all the Bar Associations in the State through the Principal District Judges, so that they can effectively address their client’s cause.
- Registrar (Judicial) shall also issue a separate notification in this regard and the same shall be displayed in the High Court’s Website.
- These directions will apply to all bail application including bails in Criminal Revision as well as Criminal Appeals.
This order shall come into force from 22.11.2021.
A police officer was punished with 1 day imprisonment (suspended the same so that an appeal may be filed) for breaching Arnesh Kumar Guidelines.
From Paras 1 and 2,
Rakesh Kumar Vs Vijayanta Arya (DCP) and Ors on 07 Dec 2021
1. The court has already held R-3 guilty of committing contempt of court. He arrested the petitioner in breach of directions passed by the Supreme Court in Arnesh Kumar Vs State of Bihar, Criminal Appeal No. 1277/2014. 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. The petitioner’s own complaints to the police were not responded to. The highhandedness of the police officer, in specific breach of the Supreme Court’s directions is evident. Arnesh Kumar (supra) holds that in the event of non-service of notice under section 41A of the Cr.P.C., contempt proceedings would be initiated.
2. The petitioner’s right to personal liberty is ensured by the Constitution of India. It can be curtained only by a procedure prescribed established by law. The Supreme Court has said in Arnesh Kumar that notice under s. 41A Cr.P.C. is requisite. The notice was not served. The law has been breached. It is not the petitioner only who has suffered the humiliation and the indignity of being arrested; the ordeal would have affected the reputation of his family i.e. his children, wife and parents. No amount of explanation to the neighbours 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. A stigma gets attached to the person who has been taken away, detained and/or put behind bars by the police. R-3 is deemed to have due knowledge of the rights of a citizen and the procedure prescribed in law.
Other Sources :
A Police officer who made an illegal arrest was handed with a sentence of imprisonment for a period of four (04) weeks, and shall also pay fine of Rs.2,000/- in four (04) weeks. The sentence of imprisonment imposed on the respondent is suspended for a period of six (06) weeks.
But then, Court also said the following:
Ramadugu Omkar Varma Vs Ashok Naik on 24 Jan 2020
Subsistence allowance at the rate of Rs.200/- per day shall be deposited by petitioner within four (04) weeks.
Supreme Court sensed that, there is a need to ensure that the power under section 41A is not used to intimidate, threaten and harass. Thereafter, granted an ad-interim stay on High Court order compelling the petitioner to appear before Police u/s 41A CrPC.05 Roshni Biswas Vs State of West Bengal and Anr on 28 Oct 2020