Gujarat High Court
Krinaben W/O Tushar Suryakant ... vs N P Garasiya, Police Sub Inspector ... on 8 September, 2023
Bench: Ashutosh Shastri
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 1009 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI : Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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KRINABEN W/O TUSHAR SURYAKANT TRIVEDI
Versus
N P GARASIYA, POLICE SUB INSPECTOR,
SPECIAL INVESTIGATION TEAM
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Appearance:
MR BHAVIK J PANDYA(5002) for the Applicant(s) No. 1,2
MR MANISH J PATEL(2131) for the Applicant(s) No. 1,2
MR TRUPESH KATHIRIYA AGP for Respondent
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 08/09/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DIVYESH A. JOSHI)
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1. By way of filing present application under Section
12 of the Contempt of Court's Act, 1971
(hereinafter referred to as "the Act" for short),
the applicants have prayed for following reliefs,
"(A) That, to direct the respondent to purge the
contempt of court on order / judgment
rendered by the Hon'ble Apex court in matter
of Arnesh Kumar v/s. State of Bihar dated 02-
07-2014 (Annexure A/2) and to punish him
under Contempt of Court's Act;
(B) Pending hearing and final disposal of this
petition, this Hon'ble Court may be pleased
to direct the respondent to remain personally
present to explain his contumacious conduct;
(C) xxx xxx xxx."
2. The brief facts leading to filing of the present
application are as under,
It is the case of the applicants that on
18.05.2023, the respondent along with other police
officials had come to the residence of the
applicant and took them into custody at around
12:48 hours and after reaching the Police Station,
an FIR being C.R. No.11191025230498/2023 has been
registered with Kagadapith Police Station for the
offences under Sections 406, 420, 506(2), 34 and
120(B) of the Indian Penal Code at around 13:30
hours and on the next day, they were produced
before the learned Metropolitan Magistrate, Court
No.15, Ahmedabad along with check-list for remand,
which was rejected, but the grounds mentioned in
the check-list do not justify the arrest and
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production of the applicants. It is the case of
the applicants that before the arrest of the
applicants, no notice as required under Section
41A of the Criminal Procedure Code (hereinafter
referred to as "CrPC" for short) was issued to the
applicants and thus, there is complete violation
and defiance of the guidelines issued by the
Hon'ble Apex Court in case of Arnesh Kumar Vs.
State of Bihar & Anr., reported in (2014) 8 SCC
273 and the conduct of the respondent is
contemptuous and requires to be punished under the
provision of the Contempt of Court's Act.
3. Heard learned advocate, Mr. Manish J. Patel for
the applicants and learned AGP Mr. Karathiya
appearing for respondent.
4. Learned advocate, Mr. Manish Patel appearing for
the applicants has submitted that the respondent
is the Police Officer working in Special
Investigation Team, Ahmedabad and thereby he is a
Government employee. Learned advocate submitted
that on 18.05.2023, the respondent along with
other Police officials had come to the residence
of the applicants and took them into the custody
around about 12:48 hours and then, took them to
Police Station and after reaching there, an FIR
being C.R. No.11191025230498/2023 has been
registered with Kagadapith Police Station for the
offences under Sections 406, 420, 506(2), 34 and
120(B) of the Indian Penal Code at around about
13:30 hours. Learned advocate submitted that it is
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an admitted position of fact that at the time of
arrest of the applicants, the aforesaid FIR was
not registered against them and, therefore, action
on the part of the respondent is in violation of
the directions issued by the Hon'ble Apex Court in
case of Arnesh Kumar (supra), copy of which is
produced on record along with memo of petition.
Learned advocate has referred to the said decision
and submitted that if this Court would make
cursorily glance upon the copy of FIR, it is
clearly found out that the offence has occurred
during the period between 07.02.2018 to 18.05.2023
and the complaint is registered on 18.05.2023 at
around about 01:30 p.m. and in connection with the
said FIR, the applicants were produced before the
learned Metropolitan Magistrate, Court No.15,
Ahmedabad on the very next day i.e. on 19.05.2023
at 02:50 p.m. Learned advocate has submitted that
the incident of police atrocities as well as
misused of the power exercised by the police
machinery have been increased across the country
and the said fact has come to the notice of the
Hon'ble Apex Court while dealing with the case of
Arnesh Kumar (supra) and the Hon'ble Apex Court
has given specific guidelines to be followed by
the concerned police officer at the time of making
arrest but in the facts of the present case, the
concerned Police Officer has in blatant disregard
to the said guidelines issued in the aforesaid
judgments and acted/ behaved in the mnaner as if
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such guidelines are not at all in existence and,
therefore, the respondent has committed criminal
contempt of the court by not complying and
following the directions and guidelines issued by
the Hon'ble Apex Court in the aforesaid decision.
5. Learned advocate has once again referred to the
observation made by the Hon'ble Apex Court in case
of Arnesh Kumar (supra), more particularly,
operative part of the said decision and submitted
that it is the duty on the head of the incumbent
Police Officer to adhere the directions issued by
the Hon'ble Apex Court scrupulous. Learned
advocate has submitted that the check-list was
produced by the respondent before the concerned
learned Magistrate at the time of production of
the accused. Learned advocate submitted that that
if this Hon'ble Court would cursorily make a
glance upon the grounds mentioned in the check-
list, it would make the position clear that the
grounds mentioned in the check-list are not in
consonance with the guidelines issued by the
Hon'ble Apex Court in case of Arnesh Kumar
(supra).
6. Learned advocate has submitted that the criminal
cases wherein the maximum punishment prescribed is
upto seven years, in those cases, generally the
accused are not required to be arrested straignway
and if at all the concerned Investigating Officer
is of the opinion that serious charges have been
levelled against the accused person, in that
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event, they have to produce the accused before the
concerned Magistrate along with check-list. Here
in this case on hand, the respondent had produced
the accused along with check-list, the grounds
narrated in the check-list were not in consonance
with the guidelines issued by the Hon'ble Apex
Court. Learned advocate referred the check-list
and submitted that three grounds have been raised
by the respondent, which are as under,
(1) the accused have committed offence and
sufficient evidence is found out, therefore
the arrest of the accused is necessary;
(2) the accused is permanent resident of Mehsana
and without obtaining sufficient surety, they
cannot be released and there are all
possibility of fleeing away at the time of
trial; and
(3) with an intention to prevent the accused from
committing another offence again.
7. After referring aforesaid three grounds mentioned
in the check-list, learned advocate submitted that
these are the grounds mentioned in the check-list
prepared by the respondent no.2 under Section 41A
of the CrPC but the said grounds mentioned in the
check-list cannot be said to be valid nor in
conformity with the guidelines issued by the
Hon'ble Apex Court and, therefore, the respondent
has willfully not obeyed the directions of the
Hon'ble Apex Court and committed breach of the
guidelines issued by the Hon'ble Apex Court and
the respondent has exercised excessive power
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against the dictum of the Hon'ble Apex Court and
the sequence of events narrated in the petition as
well as the documents produced by the applicants
clearly show that the applicants have successfully
proved their case beyond reasonable doubt,
therefore, appropriate proceedings under the
Contempt Act are required to be initiated against
him by framing necessary charges under Section 12
of the Contempt of Court's Act. It is, therefore,
urged that this application be allowed as prayed
for.
8. Learned AGP Mr. Karathiya appearing on behalf of
the respondent has opposed this application filed
by the applicants. Learned AGP has referred to the
affidavit-in-reply filed by the respondent herein.
Learned AGP has submitted that the office of the
respondent has received one application in the
form of complaint against the applicants and,
therefore, the applicants were called in the
Police Station and after having subjective
satisfaction pursuant to the investigation carried
out on the strength of contents of the written
application in the form of complaint, an FIR being
C.R. No.11191025230498/2023 has been registered
with Kagadapith Police Station for the offences
under Sections 406, 420, 506(2), 34 and 120(B) of
the Indian Penal Code on 18.05.2023 at 01:30 p.m.
and pursuant to registration of the said FIR, the
applicants came to be arrested on the very same
day i.e. on 18.05.2023 at 04:30 p.m. and they were
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presented before the Learned Metropolitan
Magistrate, Court No.15, Ahmedabad on the next day
i.e. on 19.05.2023 at 02:50 p.m. along with check-
list and in the check-list, specific grounds are
stated with regard to the arrest and production of
the accused and while doing so, the respondent has
fully complied with the provision of Section 41A
of the CrPC and also strictly adhered with the
directions and guidelines issued by the Hon'ble
Apex Court. Learned AGP has further submitted that
it is the fact on record that the applicants were
produced before the concerned Magistrate and
remand was sought but remand application has been
rejected and, therefore, they were taken into the
judicial custody. Learned AGP has further
submitted that it is clearly mentioned in the
operative part of the decision of the Hon'ble Apex
Court in case of Arnesh Kumar (supra) that if the
Police Officer is satisfied that the arrest is
necessary to prevent the accused from committing
any further offence then, the concerend officer
may arrest the accused and in the present case
also, after having subjective satisfaction, the
accused persons are arrested and produced before
the learned Magistrate along with check-list.
9. Learned AGP has referred Section 41A of the CrPC
and submitted that it is clearly stated in the
provision that if the police officer is satisfied
that such arrest is necessary, in that event, the
police officer may arrest any person without a
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warrant, therefore, the documents produced on
record clearly go to show that the conditions
mentioned in Section 41A of the CrPC have been
fully complied with by the respondent and the
respondent has acted bonafidely as Police Officer
and arrested the applicants, who have committed
alleged crime in his jurisdiction. Learned AGP has
submitted that the respondent has acted as Police
Officer and considering the gravity and magnitude
of the offence, he has arrested the accused
persons and thus, the respondent has strictly
adhered to the terms and conditions mentioned in
the guidelines in case of Arnesh Kumar (supra)
and, therefore, the contempt application preferred
by the applicants is required to be dismissed as
it is misconceived. It is, therefore, urged that
this application be rejected.
10. We have heard learned advocates for the parties.
We have also gone through the documents produced
on record by both the parties.
11. It is an undisputed position fact that the
applicants are the accused persons in connection
with an FIR being C.R. No.11191025230498/2023
registered with Kagadapith Police Station for the
offences under Sections 406, 420, 506(2), 34 and
120(B) of the Indian Penal Code.
12. From the facts of the case as narrated
hereinabove, it is emerging out that the issue
involved in the present matter is in narrow
compass and to decide the issue involved in the
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matter, we would like to advert to the provision
of law at the first instance. At this stage, we
would like to refer to the provision of Section
41A of the CrPC, which reads as under,
"41A. Notice of appearance before police
officer.-
(1) The police officer shall, in all cases where
the arrest of a person is not required under
the provisions of sub-section (1) of Section
41, issue a notice directing 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,
to appear before him or at such other place
as may be specified in the notice.
(2) Where such a notice is issued to any person,
it shall be the duty of that person to
comply with the terms of the notice.
(3) Where such person complies and continues to
comply with the notice, he shall not be
arrested in respect of the offence referred
to in the notice unless, for reasons to be
recorded, the police officer is of the
opinion that he ought to be arrested.
(4) Where such person, at any time, fails to
comply with the terms of the notice or is
unwilling to identify himself, the police
officer may, subject to such orders as may
have been passed by a competent Court in
this behalf, arrest him for the offence
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mentioned in the notice."
13. We would also like to refer to some of the
paragraphs mentioning about the guidelines issued
by the Hon'ble Apex Court in case of Arnesh Kumar
(supra), which reads as under,
"7.1 From a plain reading of the aforesaid
provision, it is evident that a person
accused of offence punishable with
imprisonment for a term which may be less
than seven years or which may extend to
seven years with or without fine, cannot be
arrested by the police officer only on its
satisfaction that such person had committed
the offence punishable as aforesaid. Police
officer before arrest, in such cases has to
be further satisfied that such arrest is
necessary to prevent such person from
committing any further offence; or for
proper investigation of the case; or to
prevent the accused from causing the
evidence of the offence to disappear; or
tampering with such evidence in any manner;
or to prevent such person from making any
inducement, threat or promise to a witness
so as to dissuade him from disclosing such
facts to the Court or the police officer; or
unless such accused person is arrested, his
presence in the court whenever required
cannot be ensured. These are the
conclusions, which one may reach based on
facts.
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7.2 The law mandates the police officer to state
the facts and record the reasons in writing
which led him to come to a conclusion
covered by any of the provisions aforesaid,
while making such arrest. Law further
requires the police officers to record the
reasons in writing for not making the
arrest.
7.3 In pith and core, the police office before
arrest must put a question to himself, why
arrest? Is it really required? What purpose
it will serve? What object it will achieve?
It is only after these questions are
addressed and one or the other conditions as
enumerated above is satisfied, the power of
arrest needs to be exercised. In fine,
before arrest first the police officers
should have reason to believe on the basis
of information and material that the accused
has committed the offence. Apart from this,
the police officer has to be satisfied
further that the arrest is necessary for one
or the more purposes envisaged by sub-
clauses (a) to (e) of clause (1) of Section
41 of Cr.PC.
9. Another provision i.e. Section 41A Cr.PC
aimed to avoid unnecessary arrest or threat
of arrest looming large on accused requires
to be vitalised. Section 41A as inserted by
Section 6 of the Code of Criminal Procedure
(Amendment) Act, 2008(Act 5 of 2009), which
is relevant in the context reads as follows:
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"41A. Notice of appearance before police
officer.-(1) The police officer shall,
in all cases where the arrest of a
person is not required under the
provisions of sub-section (1) of
Section 41, issue a notice directing
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, to
appear before him or at such other
place as may be specified in the
notice.
(2) Where such a notice is issued to any
person, it shall be the duty of that
person to comply with the terms of the
notice.
(3) Where such person complies and continues
to comply with the notice, he shall not
be arrested in respect of the offence
referred to in the notice unless, for
reasons to be recorded, the police
officer is of the opinion that he ought
to be arrested.
(4) Where such person, at any time, fails to
comply with the terms of the notice or
is unwilling to identify himself, the
police officer may, subject to such
orders as may have been passed by a
competent Court in this behalf, arrest
him for the offence mentioned in the
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notice."
Aforesaid provision makes it clear that
in all cases where the arrest of a person is
not required under Section 41(1), Cr.PC, the
police officer is required to issue notice
directing the accused to appear before him
at a specified place and time. Law obliges
such an accused to appear before the police
officer and it further mandates that if such
an accused complies with the terms of notice
he shall not be arrested, unless for reasons
to be recorded, the police office is of the
opinion that the arrest is necessary. At
this stage also, the condition precedent for
arrest as envisaged under Section 41 Cr.PC
has to be complied and shall be subject to
the same scrutiny by the Magistrate as
aforesaid.
10. We are of the opinion that if the provisions
of Section 41, Cr.PC which authorises the
police officer to arrest an accused without
an order from a Magistrate and without a
warrant are scrupulously enforced, the wrong
committed by the police officers
intentionally or unwittingly would be
reversed and the number of cases which come
to the Court for grant of anticipatory bail
will substantially reduce. We would like to
emphasise that the practice of mechanically
reproducing in the case diary all or most of
the reasons contained in Section 41 Cr.PC
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for effecting arrest be discouraged and
discontinued.
11. Our endeavour in this judgment is to ensure
that police officers do not arrest 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 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;
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 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
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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 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;
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 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."
14. It is a position not in controversy that an FIR
being C.R. No.11191025230498/2023 has been
registered with Kagadapith Police Station for the
offences under Sections 406, 420, 506(2), 34 and
120(B) of the Indian Penal Code, wherein the
applicants were shown as accused and, hence,
consequently they were arrested by the concerned
Police Officer on 18.05.2023 and on the very next
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day i.e. on 19.05.2023, they were produced before
the learned Metropolitan Magistrate, Court No.15,
Ahmedabad along with the check-list. Even remand
of the applicants was also sought for but the said
application was rejected and the accused were sent
to judicial custody and since then, they were in
custody. We have also gone through the contents of
the FIR and found that allegations leveled against
the applicants are serious and grievous in nature.
It is true that for the offences committed by the
applicants, for which the aforesaid FIR has been
lodged for the said offences, if at the end of
trial, the charges levelled against the accused
are to be proved, in that event, maximum
punishment could be imposed upto seven years as
per the penal provision of the statute. Therefore,
in view of the provision of Section 41A of the
CrPC and as per the guidelines and directions
issued by the Hon'ble Apex Court in the aforesaid
decision, at the time of arrest and production of
the accused, the concerned Investigating Officer
has to submit check-list before the concerned
Magistrate. It is admitted position of fact that
the accused was produced before the concerned
Magistrate and at the time of production, check-
list was also produced by the respondent. The
objection of the applicants is about the non-
suitable grounds mentioned in the check-list with
regard to the arrest of the accused.
15. It is clearly and expressly stated in Section 41
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of the CrPC that any police officer may without an
order from the Magistrate and without a warrant,
arrest any person subject to fulfillment of
certain conditions that if the concerned police
officer is satisfied that the arrest is inevitable
necessary then, the concerned police officer has
to justify the cause mentioning the reasons of the
arrest by narrating the grounds. Here in this case
on hand, the concerned police officer has narrated
the grounds expressly in a clear termsin the
check-list at the time of production of the
accused and copy of the check-list was given to
the concerned court at the time of production of
the documents and presentation of the accused,
therefore, conscious of the Investigating Officer
is satisfied at the time of arrest. The ground
mentioned in Section 41A and Section 41(1)(ii)(a)
of the CrPC provides "to prevent such person from
committing any further offence".
16. If we would like to refer to the content of the
grounds mentioned in the check-list, it clearly
shows that it is specifically mentioned by the
Investigating Officer that with a sole intention
to prevent them from committing another offence of
the similar nature. Therefore, the reasons
mentioned in the check-list by the IO clearly show
that he has fully and substantially complied with
the condition mentioned as per the statutory
provision of the CrPC as well as adhered with the
directions and guidelines issued by the Hon'ble
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Apex Court in case of Arnesh Kumar (supra) in
stricto sensu manner. Therefore, we are of the
opinion that the action on the part of the
respondent is not contemptuous in nature and on
the contrary, we are of the opinion that authority
has adhered to the norms and the statutory
provision of law.
17. At this stage, we would like to put reliance upon
the decision of the Hon'ble Apex Court in case of
Ram Kishan Vs. Tarun Baja & Ors., reported in
(2014) 16 SCC 204, wherein the Hon'ble Apex Court
has observed in Paragraph No.11 as under,
"11. The Contempt jurisdiction conferred on to
the law courts power to punish an offender
for his wilful disobedience/contumacious
conduct or obstruction to the majesty of
law, for the reason that respect and
authority commanded by the courts of law are
the greatest guarantee to an ordinary
citizens that his rights shall be protected
and the entire democratic fabric of the
society will crumble down if the respect of
the judiciary is undermined. Undoubtedly,
the contempt jurisdiction is a powerful
weapon in the hands of the courts of law but
that by itself operates as a string of
caution and unless, thus, otherwise
satisfied beyond reasonable doubt, it would
neither fair nor reasonable for the law
courts to exercise jurisdiction under the
Act. The proceedings are quasi- criminal in
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nature, and therefore, standard of proof
required in these proceedings is beyond all
reasonable doubt. It would rather be
hazardous to impose sentence for contempt on
the authorities in exercise of contempt
jurisdiction on mere probabilities."
18. Thus keeping in view of the aforesaid decisions as
well as in view of the facts of the case and
discussion made hereinabove, we are of the opinion
that this is not a fit case to exercise contempt
jurisdiction since no clear case is made out by
applicant. Accordingly, we deem it proper not to
entertain application, hence, the same is hereby
dismissed. Notice is discharged.
Sd/-
(ASHUTOSH SHASTRI, J.)
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
