Poduri Ranjith vs The State Of Telangana
2022 Latest Caselaw 1908 Tel

      THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION NO.223 OF 2022

ORDER:-

This petition is filed under Sections 437 and 439 of Code of Criminal

Procedure, 1973 (for short "Cr.P.C") seeking regular bail to the petitioner/A.4

in connection with Crime No.973 of 2021 of Hayathnagar Police Station,

Rachakonda Commissionerate, wherein the petitioner and other accused are

alleged to have committed the offences punishable under Section 370(A)(2)

of the Indian Penal Code, 1860 (for short 'IPC'), and Sections 3, 4 and 5 of

the Prevention of Immoral Traffic Act, 1956.

2. The case of prosecution in nutshell is that A.1 was running brothel

house by procuring innocent females for prostitution and he was informed the

same to A.2 to A.4 to come to UTF Colony, Laxmareddy Palem, and shown

the victim to A.2 to A.4. After seeing the victim, they agreed for participation

of sex with the victim and paid the amounts. While petitioner participating in

sexual course with the victim, LW.1-Detective Inspector of Police had

apprehended the accused persons and took them into custody and seized net

cash of Rs.2,000/-, phones of A.1 to A.3 and other materials. Basing on the

said report, the present crime is registered.

LK, J Crl.P.No.223 of 2022

3. This Court, by order dated 19.01.2022, has granted bail to the

petitioner. While granting bail, this Court directed Investigating Officer as

well as XXIV Additional Metropolitan Magistrate, Cyberabad at

Hayathnagar, to submit a report before this Court within one week why

Section 41-A Cr.P.C. and the guidelines formulated by the Hon'ble Supreme

Court in Arnesh Kumar v. State of Bihar1 are not followed, when the

punishment for the alleged offences is below seven years, when the police

failed to give proper reasons for the arrest of the accused and on what basis

the accused was remanded.

4. Pursuant to the orders passed by this Court, a report of the learned

XXIV Additional Metropolitan Magistrate, Cyberabad, at Hayathnagar, has

been placed before this Court stating that accused Nos.1 to 4 were produced

before the Court on 20.12.2021 and the counsel represented that the

concerned police not complied with Section 41-A Cr.P.C., hence, accused

cannot be remanded. It is stated in the report, which reads thus:

"I have gone through and perused the entire material on the record. I most humbly submit that before remanding the accused No.1 to 4, keeping in my mind the judgment of the Hon'ble Apex Court Arnesh Kumar Vs. State of Bihar (2014 8 SCC 273) and the guidelines laid down therein. I clearly perused the available entire record, the record shown that the concerned investigation officer

(2014) 8 SCC 273 LK, J Crl.P.No.223 of 2022

not issued notice U/Sec.41-A Cr.P.C. to the accused persons however investigation officer along with the remand case diary, he furnished the check list U/s.41-1(b) Cr.P.C. as per the judgment in Arnesh Kumar Vs. State of Bihar (2014 8 SCC 273) by mentioning the reasons in clause No.1 to 5. (enclosed the check list for kind of perusal) for making arrest of accused persons without serving the said notice. The investigating officer further mentioned that he has satisfied with the reasons mentioned in clause No.1 to 5 basing on which he came to the conclusion that the arrest of the accused is necessary. As the reasons mentioned are found to be satisfactory and found in accordance with the guidelines laid down by the Hon'ble Apex Court, I remanded the accused persons and sent them to judicial custody.

I mostly humbly submit that I have exercised my discretionary power to authorize detention as a very solemn function. Before the remand I am firstly satisfied that the arrest made is legal and in accordance with law and the constitutional rights of the person arrested are satisfied. I before authorizing detention, recorded my own satisfaction in brief, same is reflecting yin the remand order Dt.20.12.2021. Hence, I further humbly submit that I have followed the procedure contemplated U/s.41-A Cr.P.C. and the guidelines of judgment in Arnesh Kumar Vs. State of Bihar. Hence, I pray the Hon'ble High Court that this report may be considered and accepted."

5. A counter affidavit has been filed by the Investigating Officer-Inspector

of Police, Hayathnagar Police Station, Rachakonda Commissionerate, stating

that the nature of offence is flesh trade, where the victims are being trafficked LK, J Crl.P.No.223 of 2022

and sexually exploited. Moreover, the sex trafficking is serious crime and

volition of human rights, where the victim in the above case is imported from

other State and a crime as is understood creates a dent in law and order

situation. In a civilized society, crime disturbs orderliness, it affects the

peaceful life of the society and moreover to curb the menace under Section

370(A) was also brought in to existence, further the accused was caught

redhanded and as such his arrest was necessary in order to prevent him from

absconding and also inducing or threatening the victims and secure his

presence in the Court. It is further stated that the power of arrest available to

a police officer in connection with commission of a cognizable offence has

been conferred vide Section 41(1)(a) when the cognizable offence is

committed in his presence. It is also stated in the counter-affidavit that in

respect of offences under Immoral Traffic (Prevention) Act, 1956 and other

cognate offences in the Indian Penal Code, the investigating agency shall not

mechanically resort to Section 41-A of Cr.P.C. without applying its mind to

the parameters laid down in Section 41(1)(ii) of the Code. While arriving, at

such decision the investigating agency must bear in mind that these cases

involve grave offences having widespread social ramifications and ordinarily

affect the economically weak victims who are vulnerable to threats and/or

inducement of various kinds. Possibility to repetition of such organized

crimes are most likely if the offenders are not apprehended. It is further LK, J Crl.P.No.223 of 2022

stated that in the order passed by this Court dated 19.01.2022 this Court has

observed that officer has not filed checklist under Section 41(1)(b) of Cr.P.C,

for that a check list was prepared at the time of remand by assigning reasons

and the same was also furnished to the Court. Hence, it is stated that the

criminal petition may be dismissed.

6. When this Court has called for report from the learned Magistrate and

counter from the Investigating Officer, this Court has specifically asked them

why Section 41-A Cr.P.C. has not been followed and the guidelines

formulated by the Hon'ble Supreme Court in Arnesh Kumar's case and also

why the checklist is not furnished along with the charge sheet. This Court is

not able to appreciate the report filed by the learned Magistrate as well as

counter affidavit filed by the officer. In Arnesh Kumar's case, the Hon'ble

Supreme Court clearly observed that police officers shall not arrest the

accused unnecessarily. It is also observed that the reasons for arrest of

accused cannot be stereotypic and cyclostyle reasons, but it should be genuine

and germane for consideration.

7. In this case, the petitioner is alleged to have committed the offence

under Section 370(A)(2) IPC and Sections 3, 4 and 5 of the PITA Act. The

petitioner is not running the Brothel House but he is a customer. The

punishment for the offence under Section 370(A)(2) IPC is rigorous LK, J Crl.P.No.223 of 2022

imprisonment for a term which shall not be less than three years, but which

may extent to five years and shall also be liable to pay fine. The reasons for

arrest mentioned in the checklist of the petitioner are that (1) if the accused

was not arrested he may continue his illegal activities (2) to prevent such

person from causing the evidence of the offence to disappear or tampering

with such evidence in any manner (3) in order to prevent the accused from

making any inducement or promise to any person acquainted with facts of the

case. So as to disuse him from disclosing to the court or to the police officer.

(4) If they were released on bail, it is very difficulty to produce them before

the Hon'ble Court at the time of trial (5) As the accused A-1 is habitual one

and just (8) months back only he was arrested by Police, Vanasthalipuram but

he did not change his attitude and the A-1 is doing/earnings money by lured

the innocent woman by the way of prostitution.

8. In the remand application, the learned Magistrate has observed that

"Section 41-A Cr.P.C. not complied by the police as reported by counsel for

accused Nos.2 and 3. But, the check list filed, on perusal of the record, the

concerned I.O. mentioned sufficient reasons u/Sec.41(1)(b) Cr.P.C. why the

arrest of accused persons are necessary. This Court satisfied with the

reasons mentioned by the Investigation Officer according to Section 41(1)

Cr.P.C."

LK, J Crl.P.No.223 of 2022

9. The learned Magistrate states in the report that she has exercised her

discretionary power to authorize detention as a very solemn function and she

has followed the guidelines issued by the Hon'ble Supreme Court in Arnesh

Kumar's case and for the reasons stated in the checklist, she is satisfied with

the reasons given by the police officer. The learned Magistrate failed to

understand the guidelines issued in Arnesh Kumar's case. In the checklist, it

is stated that accused No.1 is a habitual offender and nothing has been stated

against the petitioner/A.4, who is a customer. The Hon'ble Supreme Court in

Arnesh Kumar's case observed that "the power to authorise detention is a

very solemn function. It affects the liberty and freedom of citizens and needs

to be exercised with great care and caution. Our experience tells us that it is

not exercised with the seriousness it deserves. In many of the cases, detention

is authorised in a routine, casual and cavalier manner. Before a Magistrate

authorises detention under Section 167 Cr.P.C. he has to be first satisfied that

the arrest made is legal and in accordance with law and all the constitutional

rights of the person arrested is satisfied. If the arrest effected by the police

officer does not satisfy the requirements of Section 41 of the Code, Magistrate

is duty bound not to authorise his further detention and release the accused. In

other words, when an accused is produced before the Magistrate, the police

officer effecting the arrest is required to furnish to the Magistrate, the facts,

reasons and its conclusions for arrest and the Magistrate in turn is to be LK, J Crl.P.No.223 of 2022

satisfied that condition precedent for arrest under Section 41 Cr.PC has been

satisfied and it is only thereafter that he will authorise the detention of an

accused. The Magistrate before authorising detention will record its own

satisfaction, may be in brief but the said satisfaction must reflect from its

order. It shall never be based upon the ipse dixit of the police officer, for

example, in case the police officer considers the arrest necessary to prevent

such person from committing any further offence or for proper investigation

of the case or for preventing an accused from tampering with evidence or

making inducement etc., the police officer shall furnish to the Magistrate the

facts, the reasons and materials on the basis of which the police officer had

reached its conclusion. Those shall be perused by the Magistrate while

authorising the detention and only after recording its satisfaction in writing

that the Magistrate will authorise the detention of the accused. In fine, when a

suspect is arrested and produced before a Magistrate for authorising detention,

the Magistrate has to address the question whether specific reasons have been

recorded for arrest and if so, prima facie those reasons are relevant and

secondly a reasonable conclusion could at all be reached by the police officer

that one or the other conditions stated above are attracted. To this limited

extent the Magistrate will make judicial scrutiny."

LK, J Crl.P.No.223 of 2022

10. It appears that the learned Magistrate failed to exercise the discretion

judicially. The learned Magistrate ought to have been more cautious while

remanding the accused and she ought not to have taken into consideration the

stereotypic reasons. It is not mere saying that "I have exercised the

discretionary power in authorizing detention as a very solemn function", but,

the learned Judge should have also implemented the same in its true spirit. If

the remands are made solely basing on the reasons stated by the police, then

the duty of the Judge is a mere ritual. The learned Judge is supposed to make

a judicial scrutiny whether specific reasons have recorded for arrest, such

reasons are relevant and the police officer has reached at a reasonable

conclusion that the stated reasons are attracted. In this case, the learned Judge

failed to make the judicial scrutiny as required and authorised the detention.

Hereafter, the learned Judge shall be careful in implementing the guidelines

issued by the Apex Court in Arnesh Kumar's case and shall follow it

scrupulously. Taking a lenient view, this Court is not referring the matter to

be placed before the Hon'ble Chief Justice for taking action on departmental

side. As far as the Investigating Officer is concerned, all the reasons that are

stated in the counter-affidavit, at best, may be applicable to accused No.1, but

not to accused No.4 but still he was remanded. Cautioning him, no

departmental action is contemplated by this Court or the suo moto contempt

proceedings.

LK, J Crl.P.No.223 of 2022

11. The criminal petition is, accordingly, closed. The Registrar (Judicial) is

directed to communicate the copy of the order to the learned XXIV

Additional Metropolitan Magistrate, Cyberabad at Hayathnagar, as well as to

the Investigating Officer.

Miscellaneous applications pending, if any, shall stand closed.

___________________________ LALITHA KANNEGANTI, J Date : 18 .04.2022 L.R. copy to be marked - Yes mar