Sandeep Chamaria vs The State Of Assam And 2 Ors
2022 Latest Caselaw 841 Gua

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GAHC010042712022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                   Case No. : PIL/20/2022

            SANDEEP CHAMARIA
            S/O LATE SHIWA KUMAR CHAMARIA, ADD- CHAMARIA SADAN,
            KALIPUR, CHAKRESWAR PATH, RIVER SIDE, KAMAKHYA, GUWAHATI,
            KAMRUP (M), PIN-781009, ASSAM


            VERSUS

            THE STATE OF ASSAM AND 2 ORS.
            DEPARTMENT OF HOME AND POLITICAL, GOVT. OF ASSAM,
            REPRESENTED HEREIN BY THE PRINCIPAL SECRETARY TO THE GOVT. OF
            ASSAM, ASSAM SECRETARIAT, CM BLOCK, SECOND FLOOR, DISPUR,
            GUWAHATI, ASSAM-781006

            2:DIRECTOR GENERAL OF POLICE
             GOVT. OF ASSAM
            ADD- ASSAM POLICE HEADQUARTERS
             ULUBARI
             DIST- KAMRUP(M)
            ASSAM
             PIN-781007

            3:THE REGISTRAR GENERAL
             GAUHATI HIGH COURT
            ADD-O/O THE REGISTRAR GENERAL
             GAUHATI HIGH COURT
             GUWAHATI-781001
             KAMRUP(M)
            ASSA

Advocate for the Petitioner   : PETITIONER IN PERSON

Advocate for the Respondent : GA, ASSAM

                                          BEFORE
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                         HONOURABLE THE CHIEF JUSTICE
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                          ORDER

Date : 09.03.2022

Heard Mr. S. Chamaria, the petitioner-in-person. Also heard Mr. D. Saikia, learned Advocate General, Assam, assisted by Mrs. R.B. Bora, learned Junior Government Advocate, Assam, appearing for the respondent Nos.1 & 2.

This public interest litigation raises an extremely important issue, which is that inspite of major amendments being made in the Code of Criminal Procedure in the year 2010, where Sections 41A, 41B, 41C & 41D have been incorporated, which makes a check on arrests. Moreover, inspite of the directions given by the Apex Court in its seminal judgment in Arnesh Kumar

-Vs- State of Bihar & Anr., reported in (2014) 8 SCC 273, the same are not being followed and police still arrests person(s) without following the due process, as indicated above. Arrest is not necessary in every communal case.

In Arnesh Kumar's case, this matter has been extensively dealt with and directions have been given by the Apex Court in Paragraph 11, which are reproduced as under:-

"11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

11.1 All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 Cr.PC;

11.2 All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

11.3 The police officer shall forward the check list duly filed and furnish Page No.# 3/3

the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

11.4 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;

11.5 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;

11.6 Notice of appearance in terms of Section 41-A 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;

11.7 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 the High Court having territorial jurisdiction.

11.8 Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court."

We would like to have a detailed affidavit in this matter explaining as to whether the State has been following the mandate of law as given in Sections 41A, 41B, 41C & 41D as well as the directions given by the Apex Court in Arnesh Kumar's case, which is the law of the land in terms of Article 21 and 22(2) of the Constitution of India.

Let such an affidavit be filed within a period of four weeks from today. The learned Advocate General, Assam has assured this Court that such an affidavit shall be filed within four weeks.

List again on 19th April, 2022.

                                       JUDGE                   CHIEF JUSTICE

Comparing Assistant