Muhammed Rafi vs Satheesh Kumar M.V
2022 Latest Caselaw 9026 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
    THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                             &
       THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
  WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5th SRAVANA, 1944
                CON.CASE(C) NO. 808 OF 2022
CRIME NO.254/2022 OF Vadakkanchery Police Station, Thrissur
PETITIONER/S:

         MUHAMMED RAFI, AGED 51 YEARS
         S/O BAVA, KURUPPAM HOUSE,
         THIRIVANIKKAVU DESOM, OLLUKKARA VILLAGE,
         OLLUKKARA P.O., THRISSUR DISTRICT, PIN - 680655
         BY ADVS.
         ANAND KALYANAKRISHNAN
         C.DHEERAJ RAJAN

RESPONDENT/S:

         SATHEESH KUMAR M.V.
         AGE NOT KNOWN, FATHER'S NAME NOT KNOWN,
         INSPECTOR OF POLICE, WADAKKANCHERRY POLICE
         STATION, THRISSUR DISTRICT, PIN - 680652
         BY SR. GOVERNMENT PLEADER SRI. UNNIKRISHNA KAIMAL


This CONTEMPT OF COURT CASE (CIVIL) having come up for
orders on 20.07.2022, the court on 27-07-2022 passed the
following:
                                                   :2:
Cont. Case (Civil) No. 808 of 2022




                        A.K.JAYASANKARAN NAMBIAR
                                                   &
                             MOHAMMED NIAS C.P., JJ
                   ............................................................
                         Cont. Case (Civil) No. 808 of 2022
                   ..................................................................

                        Dated this the 27th day of July, 2022


                                         JUDGMENT

Mohammed Nias.C.P.J.,

The above Contempt of Court Case (Civil) is filed by the

petitioner, who is the sole accused in Crime No. 254 of 2022 registered

by Wadakkancherry Police Station, Thrissur District, for offences

punishable under Sections 406 and 420 of the Indian Penal Code.

2. The petitioner submits that he was arrested in total violation

of the judgment of the Supreme Court in [Arnesh Kumar v. State of

Bihar & Anr. [2014 (3) KHC 69]. There was non-compliance of

issuance of notice under Section 41A of the Code of Criminal Procedure,

1973 ("Cr.P.C." for short), before arresting the petitioner. The action of

the respondent is aggravated as the respondent had also violated

Annexure-A3, an order in an application seeking anticipatory bail, which

after recording the submission of the learned Public Prosecutor that no

case was registered against the petitioner, dismissed the petition with

Cont. Case (Civil) No. 808 of 2022

a direction to the Station House Officer, Wadakkancherry to give notice

under Section 41A of Cr.P.C., if the presence of the petitioner is

required for any legal necessity. The petitioner submits that it is in

gross violation of the judgment of the Hon'ble Supreme Court as well as

the direction of the Sessions Court referred above, the petitioner was

arrested on 18-3-2022 at 4.30 p.m. On production before the learned

Magistrate remanded the petitioner to judicial custody for a period of 14

days.

3. We had issued notice to the respondent who appeared and

filed a counter affidavit on 13-6-2022, trying to justify his action and

stating that there are serious charges against the accused and the

immediate arrest of the accused was necessary to recover the

belongings and also to avoid exerting external influence on the

complainant and the witnesses.

4. We were not satisfied with the said affidavit, and on the

request of the learned Government Pleader appearing for the

respondent, permission was granted to file an additional affidavit. A

second affidavit was filed on 21-6-2022 re-iterating that the petitioner

had cheated the de facto complainant and that, after the arrest of the

accused on 18-3-2022, the respondent was engaged in the law and

order duty as well as in the pending cases under investigation and cited

Cont. Case (Civil) No. 808 of 2022

that as a reason for the delay in procuring the accused to police

custody. It is further stated in the affidavit that Annexure-A3 order of

the Sessions Court was passed in the year 2018 but the FIR was

registered in the year 2022 and the Investigating Officer as well as the

Station House Officer were new comers in the Police Station, they had

no prior knowledge about the order. It was also submitted that neither

the petitioner nor their relatives or his Advocate had informed the

Investigating officer about Annexure-A3 order and thus sought apology

for the action in ignoring the said order.

5. We pointed out to the respondent that even in the absence of

the order of the Sessions Court, the law of the land mandated to follow

the directions in Arnesh Kumar (Supra). Again permission was

sought to file an additional affidavit which was filed on 11-7-2022

stating as follows:

" 2. It is respectfully and humbly submitted that at the time of arrest of the accused on 18-3-2022, this respondent failed to take note of the direction contained in Annexure A4 judgment of the Honourable Supreme Court wherein it was categorically held that notice under Section 41A of the Code of Criminal Procedure is a per-requisite for arresting an accused in cases where offences punishable with imprisonment for a term which may be less than 7 years or which may extent to 7 years whether with or without fine.

3. It is most respectfully and humbly submitted that the above said omission from my part was not willful or deliberate, but due to my oversight. It is

Cont. Case (Civil) No. 808 of 2022

humbly submitted that I have not acted in accordance with the procedure of law established by the Honourable Apex Court. I once again submit that the same was not deliberate or intentional, but only due to an oversight from my part.

4. Hence it is respectfully submitted that this respondent is having high regard and due respect to the Orders of the Honourable Apex Court and of this Honourable Court and know that this respondent is bound to follow and implement the order of the Honourable Apex Court. There is no willful laches on the part of the respondent. But the same happened due to an over sight from the part of this respondent. Hence I deeply regret for the inconvenience caused to this Honourable Court and may kindly be pardoned in the aforesaid facts and circumstances of the case taking into consideration of my unconditional apology.

5. I hereby tender my unconditional apology for the inconvenience caused to this Honourable Court. Hence I humbly submit that this Honourable Court may be pleased to consider the aforesaid facts and accept the above facts and exonerate this respondent from further proceeding by dropping the above Contempt Case".

6. Learned counsel for the petitioner re-iterated his

contention that since the arrest being in total violation of the decision

in Arnesh Kumar (supra) as well as Annexure-A3 order passed by the

Sessions Court, no leniency may be shown to the respondent. It is

further argued that since he was in jail for 15 days, consequent to the

illegal arrest as above, adequate compensation may be directed to be

paid to him. On hearing the learned counsel on either side and going

through the affidavit filed on 11-7-2022, we deem it appropriate to

Cont. Case (Civil) No. 808 of 2022

accept the affidavit tendering unconditional apology and to drop the

contempt of court proceedings. This however, will not prejudice any of

the rights of the petitioner to take appropriate proceedings in

accordance with law to claim compensation for the acts done against

him. All contentions of the parties in that regard are left open.

7. Before we part, we deem it proper to remind that the power

to arrest an individual vested in the State and exercised through its

police officers at various stages of the criminal justice process, cannot

be used as a punitive tool or as a measure of harassment unmindful of

the duty to take into account the safeguards provided under Section 41

of the Cr.P.C. before the arrest of a citizen. We remind, the authorities

concerned that any attempt to circumvent the orders of the court is

derogatory to the very dignity of the court and administration of justice.

The directions issued by the courts, particularly, by the Supreme Court

has to be complied as such without any exception or justification. The

directions so issued are binding and must be obeyed by the parties and

all concerned stricto sensu.

8. Accordingly, we direct the State Police Chief to take such

steps to see that the police in the State of Kerala is directed to

scrupulously follow the directions in the judgment of the Supreme

Court in Arnesh Kumar (supra) as well as the recent Judgment in

Cont. Case (Civil) No. 808 of 2022

Satender Kumar Antil v. Central Bureau of Investigation &

Another (2022 SCC Online SC 825), particularly, the directions

contained in paragraph 73 of the said judgment.

This Contempt of Court Case (Civil) is closed as above.

Sd/-A.K.JAYASANKARAN NAMBIAR, JUDGE

Sd/-MOHAMMED NIAS C.P., JUDGE

ani/

/true copy/

Cont. Case (Civil) No. 808 of 2022

APPENDIX OF CON.CASE(C) 808/2022

PETITIONER ANNEXURES Annexure A1 THE CITIZEN COPY OF THE FIR IN CRIME NO. 254 OF 2022 REGISTERED BY THE WADAKKANCHERRY POLICE STATION, THRISSUR DISTRICT Annexure A2 THE TRUE COPY OF THE AGREEMENT DATED 01.11.2017 BETWEEN THE PETITIONER AND FATHER OF THE DEFACTO COMPLAINANT Annexure A3 THE TRUE COPY OF THE ORDER DATED 21.07.2018 IN CRL MC NO. 999/2018 PASSED BY THE LEARNED SESSIONS JUDGE, THRISSUR Annexure A4 THE TRUE COPY OF THE DECISION OF ARNESH KUMAR V. STATE OF BIHAR AND ANR REPORTED IN 2014 (3) KHC 69