Madras High Court
P.Mylsamy vs Murugesan on 23 March, 2023
Cont.P.No.2665 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.03.2023
CORAM
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Cont.P.No.2665 of 2022
P.Mylsamy ... Petitioner
Vs.
Murugesan,
The Inspector of Police,
Kinathukadavu Police Station,
Kinathukadavu Taluk,
Coimbatore District. ... Respondent
Prayer: Petition filed under Article 215 of Constitution of India, to
punish the respondent for the act of contempt committed by him
for not complying with the provisions of under Section 41(A) of the
Cr.P.C.
For Petitioner : Mr.V.V.Sairam
For Respondent : Mr.N.S.Suganthan
Government Advocate (Crl. Side)
ORDER
The present Contempt Petition has been filed by one
P.Mylsamy, the complainant to punish the respondent-Police for
the act of contempt alleged to have been committed by him by not
complying with the provisions of under Section 41(A) of the Cr.P.C
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in respect of the complaint given by the petitioner against one
Ponnusamy and others in Crime No.1424/2020.
2. From the narration of the facts in the Affidavit filed in
support of the Contempt Petition, copy of the documents filed
alongwith the petition and the submissions of Mr.V.V.Sairam,
learned counsel appearing for the petitioner, the following factual
aspects could be elicited:-
i) The petitioner had lodged a complaint against one
Ponnusamy and others for offences punishable under Sections 467,
468 and 420 IPC and the same was registered in Crime
No.1424/2020 by the respondent police on 24.10.2020.
ii) On 4.8.2022, the petitioner had sought for some
information by issuing notice to the respondent through RTI,
among which, one is whether the respondent had issued notice to
the accused under Section 41A Cr.P.C. and received a negative
reply on 20.8.2022.
iii) Upon receipt of such a reply, the petitioner has come up
before this court by way of present Contempt Petition seeking to
punish the respondent Police alleging that he had committed
contempt of court by not complying with the provisions of Section
41A Cr.P.C. as contemplated by the Apex Court in Arnesh Kumar
vs. State of Bihar (2014) 8 SCC 273.
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3. When the matter is taken up for hearing, it is submitted
by the learned Government Advocate (Criminal Side) appearing for
the respondent that this Contempt Petition is not at all
maintainable.
4. It is the case of the petitioner that by not issuing notice to
the accused under Section 41A Cr.P.C. within two weeks from the
date of receipt of the complaint given by the petitioner, the
respondent has committed contempt of court as directed in the
decision in Arnesh Kumar vs. State of Bihar (2014) 8 SCC 273.
5. It is true that Section 41A Cr.P.C. insists for issuance of
notice to the accused by the Police in all cases where the arrest
of a person is not required. But, the scope of such provision is
only to avoid unnecessary and mechanical arrest or threat of arrest
and the consequent humiliation and scar being caused to the
person accused of. In the case of Arnesh Kumar cited supra, the
Apex Court has also dealt with Section 41A Cr.P.C. in that
perspective alone and made it clear that failure to comply with the
directions would attract not only departmental action against the
police officer, but, also contempt proceedings. A careful
reading of the decision would affirm the same. The relevant
portion of the decision clarifying the legal provision is extracted
hereunder for ready reference:-
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Cont.P.No.2665 of 2022
"9. Another provision i.e. Section 41-A CrPC
aimed to avoid unnecessary arrest or threat of
arrest looming large on the accused requires
to be vitalised. Section 41-A as inserted by
Section 6 of the Code of Criminal Procedure
(Amendment) Act, 2008 (5 of 2009), which is
relevant in the context reads as follows:
“41-A. 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
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Cont.P.No.2665 of 2022
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
notice.”
The aforesaid provision makes it clear that in
all cases where the arrest of a person is not
required under Section 41(1) CrPC, 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 officer is of the opinion
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Cont.P.No.2665 of 2022
that the arrest is necessary. At this stage also, the
condition precedent for arrest as envisaged under
Section 41 CrPC 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 CrPC 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 CrPC for effecting arrest be discouraged
and discontinued.
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
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Cont.P.No.2665 of 2022
mechanically. In order to ensure what we
have observed above, we give the following
directions:
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 CrPC;
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 filled 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
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Cont.P.No.2665 of 2022
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 CrPC 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
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Cont.P.No.2665 of 2022
reasons as aforesaid by the Judicial Magistrate
concerned shall be liable for departmental
action by the appropriate High Court.
12. We hasten to add that the directions
aforesaid shall not only apply to the cases under
Section 498-A IPC or Section 4 of the Dowry
Prohibition Act, the case in hand, but also such
cases where offence is punishable with
imprisonment for a term which may be less than
seven years or which may extend to seven years,
whether with or without fine."
6. The observation of the Apex Court in the above decision
with regard to initiation of contempt proceedings apart from
departmental action, in case of failure on the part of the Police
Officer to comply with the provision under Section 41A Cr.P.C., is
only to prevent unnecessary harassment by way of arrest or threat
to arrest being caused to the person accused. In the case on
hand, the petitioner, by misconstruing the scope of the legal
provision as well as the observation of the Apex Court, has filed
the Contempt Petition, which is not maintainable. Accordingly, it is
dismissed.
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Cont.P.No.2665 of 2022
23.03.2023
Index : Yes/ No
Internet : Yes/No
Speaking/Non-Speaking Order
jas/ssk
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Cont.P.No.2665 of 2022
A.D.JAGADISH CHANDIRA, J.
jas/ssk
Cont.P.No.2665 of 2022
23.03.2023
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