The State Of Telangana vs Ramachandra Barathi Sathish ...
2022 Latest Caselaw 5461 Tel

  IN THE HIGH COURT FOR THE STATE OF TELANGANA

           Criminal Revision Case No.699 of 2022

Between:
The State of Telangana,
reptd by its Special Public
Prosecutor for SPE and ACB Cases.
                                                ... Petitioner
And

Ramachandra Barathi @ Sathish Sharma V.K.,

and two others.

                                           ...Respondents

JUDGMENT PRONOUNCED ON 29.10.2022

HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA

1. Whether Reporters of Local newspapers   :       Yes

   may be allowed to see the Judgment?

2. Whether the copies of judgment may be

   marked to Law Reporters/Journals?       :     Yes

3. Whether her Lordship wishes to

   see the fair copy of the Judgment?       :     Yes



                          ________________________________

                    Dr. JUSTICE CHILLAKUR SUMALATHA
                                2                            Dr.CSL, J
                                               Crl.R.C.No.699 of 2022


          HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA

           Criminal Revision Case No.699 of 2022

% 29.10.2022

Between:

# The State of Telangana,
reptd by its Special Public
Prosecutor for SPE and ACB Cases
                                                  ..... Petitioner

And:

$ Ramachandra Barathi @ Sathish Sharma V.K.,

and two others.

                                               ....Respondents
< Gist:

> Head Note:

! Counsel for the Petitioner: Mr. B.S.Prasad

                               Advocate General

^ Counsel for Respondents: Sri Vedula Srinivas

                              Senior counsel and

                              Sri Rama Rao Emmaneni

 ? Cases Referred:
  1. (2014) 8 SCC 273
  2. 1977 AIR 2185
  3. (2017) 14 SCC 809

  4. AIR 1978 SC 47
  5. AIR 2004 SC 2282
                                     3                                  Dr.CSL, J
                                                          Crl.R.C.No.699 of 2022


     HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA

         CRIMINAL REVISION CASE No.699 of 2022

ORDER:

Assailing the order that is rendered by the learned

I Additional Special Judge for SPE and ACB Cases,

Hyderabad, dated 27.10.2022, in Crime No.455 of 2022 of

Moinabad Police Station, by which the request of the

Assistant Commissioner of Police, Cyberabad

Commissionerate to remand the respondents-accused

Nos.1 to 3 to judicial custody was rejected, the State is

before this Court.

2. Heard. Gave due and anxious consideration to the

submissions made by Sri B.S.Prasad, learned Advocate

General appearing for the petitioner-State, Sri Vedula

Srinivas, learned senior counsel representing the

respondents as well as Sri Rama Rao Emmaneni, Advocate,

who supplemented the submission made by the learned

counsel for the respondents.

3. The matrix of the case, sans unnecessary details, as

could be perceived through the material available on

record, is that on 26.10.2022, around 11.30 am, a Member 4 Dr.CSL, J Crl.R.C.No.699 of 2022

of Telangana State Legislative Assembly by name Pilot

Rohit Reddy lodged a complaint at Rajendranagar Police

Station stating that on 26.9.2022, respondent Nos.1 and 2

met him and negotiated with him requesting him not to

contest as candidate from the party he belongs and to join

another party. For doing so, they offered him an amount of

Rs.100 crores, Central Government civil contract works

and other high Central Government posts. He was also

threatened that in case, he fails to join, criminal cases

would be booked and raids would be conducted by

E.D/C.B.I. Since the said inducement of bribe was

unethical, undemocratic and encouraging corruption, he

decided not to entertain such unethical practises. On

26.10.2022, respondent Nos.1 and 2 again contacted him

and informed him that they are coming to his farm house

for negotiations. They requested to mobilise some other

M.L.As. They also informed that they along with respondent

No.3 would come to his farm house to finalise the deal. By

stating so, the defacto complainant made a request to

police to take necessary legal action against those persons.

5 Dr.CSL, J Crl.R.C.No.699 of 2022

4. On receipt of such complaint, a case was registered in

Crime No.455 of 2022 of Moinabad Police Station and

investigation was taken up. The First Information Report

was despatched to the Court concerned and the statement

of the defacto complainant was recorded. Mediators and

electronic spy gadgets were secured. The electronic spy

gadgets were arranged inside the hall at the farm house of

the defacto complainant where the meeting was proposed

to be held. The defacto complainant was explained to give a

signal by saying "nariyal pani layeye" through his servant

after the meeting is over. Besides electronic spy gadgets,

two voice recorders were handed over to the defacto

complainant. The defacto complainant placed one voice

recorder in his left side pocket of kurtha and another in his

right side pocket of kurtha. Thereafter, the defacto

complainant left the farm house to receive the respondents-

accused. The Assistant Commissioner of Police, Cyberabad

Commissionerate, his supporting staff and the mediators

took vantage positions to watch the happenings. The

electronic gadgets were switched on.

                                   6                              Dr.CSL, J
                                                    Crl.R.C.No.699 of 2022


5.   The        defacto    complainant   came      back    at    about

15.10 hours along with the respondents-accused Nos.1 to

3. They all went into the hall and sat at the proposed

meeting place. While the meeting was going on, Sri Guvvala

Balraj, M.L.A., Achampet, Sri B.Harshavardhan Reddy,

M.L.A., Kollapur and Sri Rega Kantha Rao, M.L.A.,

Pinapaka, came to the scene of offence and joined the

meeting. The meeting lasted for about 3 ½ hours. On

completion of the meeting, the defacto complainant sent his

servant by saying "nariyal pani layeye". Immediately, on

receipt of the pre-arranged signal, the Assistant

Commissioner of Police, Cyberabad Commissionerate along

with others, who were watching from vantage positions,

entered into the hall. The Assistant Commissioner of Police

introduced himself and the mediators to the persons

present in the hall. On enquiry, the respondents-accused

Nos.1 to 3 and the aforesaid three M.L.As disclosed their

identity particulars. When the Assistant Commissioner of

Police enquired the respondents-accused Nos.1 to 3 about

the purpose of their visit to the farm house, they remained

silent. They failed to disclose anything. On enquiry, the

aforesaid three M.L.As thoroughly corroborated the version 7 Dr.CSL, J Crl.R.C.No.699 of 2022

of the defacto complainant in all material aspects. Even

then, the respondents-accused Nos.1 to 3 did not disclose

anything. They failed to co-operate with the Investigating

Officer. The Assistant Commissioner of Police seized the

pre-arranged electronic spy gadgets from the hall of the

farm house and also the two voice recorders from the

defacto complainant under the cover of seizure

panchanama. On playing the voice recorders before the

respondents-accused Nos.1 to 3, they disclosed the

conversation of offering of bribe of Rs.50 crores to each

M.L.A. besides other monetary benefits.

6. The two mobile phones which were found in the

possession of respondent No.1/accused No.1, one mobile

phone which was found in the possession of respondent

No.2/accused No.2 and a mobile phone found in the

possession of respondent No.3-accused No.3 were seized in

the presence of the mediators. Other relevant material

including some papers, dairy, laptop, etc., which were

found in a car, were also seized.

8 Dr.CSL, J Crl.R.C.No.699 of 2022

7. The above set of case facts, as per the submission of

the learned Advocate General, formed basis for police to

take up investigation.

8. Learned Advocate General submits that as the

offences committed by the respondents-accused Nos.1 to 3

are heinous and serious in nature, they were arrested and

produced before the Magistrate concerned for remand.

Learned Advocate General states that the learned

Magistrate, however, on flimsy grounds rejected the request

to remand putting justice to jeopardy. Learned Advocate

General also contends that though sufficient grounds were

urged and narrated in the remand report and all the

formalities required under the Code of Criminal Procedure,

1973, were complied with, yet the learned Magistrate failed

to accept the remand of the respondents which is most

unjustifiable. Learned Advocate General submits that as

the order rendered by the learned Magistrate in rejecting

the remand of the respondents-accused Nos.1 to 3 is

against the mandate of law, the State is before this Court

through this Criminal Revision Case seeking for justice.

9 Dr.CSL, J Crl.R.C.No.699 of 2022

9. Vehemently opposing the submission made thus,

Sri Vedula Srinivas, learned senior counsel representing

the respondents, submits that as no grounds were made

out in the remand report so as to accept the remand of the

respondents, the learned Magistrate rightly rejected the

remand. Learned senior counsel submits that the

Investigating Officer ought to have issued a notice under

Section 41-A Cr.P.C. before taking steps for effecting arrest,

but he did not do so. Learned senior counsel also submits

that Police failed to follow the guidelines issued by the

Hon'ble Apex Court in the case between Arnesh Kumar Vs.

State of Bihar and another1 while effecting arrest of the

respondents. Learned senior counsel further contends that

as per the said decision, it is mandatory to issue notice

under Section 41-A Cr.P.C., where punishment prescribed

for an offence is imprisonment for seven years or below

seven years and in the case on hand, as such a procedure

is not followed by police, the learned Magistrate has rightly

rejected the remand of the respondents and

(2014) 8 SCC 273 10 Dr.CSL, J Crl.R.C.No.699 of 2022

hence, the impugned order rendered by the learned

Magistrate needs no interference.

10. Interdicting the said submission, the learned

Advocate General says that the whole issue arose due to

fear of departmental action that would be taken against

Magistrates in case remands are accepted without police

exhausting the requirement to issue notice under Section

41-A Cr.P.C and subsequent breach of conditions laid

under the said notice by accused.

11. The submission of the supporting counsel-Sri Rama

Rao Emmaneni is that investigation ought to have been

carried out in coordination with the officials of the Anti

Corruption Bureau, but, it was indeed carried out by the

Police officers of Moinabad Police Station, which is against

the procedure prescribed under the Prevention of

Corruption Act, 1988, and thus, registration of case itself is

bad in law.

12. During the course of submission, it is also contended

by the learned senior counsel that a Criminal Revision Case

is not maintainable against an interlocutory order and 11 Dr.CSL, J Crl.R.C.No.699 of 2022

thus, the present Criminal Revision Case itself is

unsustainable.

13. Thus, multiple issues are before this Court to be

addressed and decided. The core issue though is as simple

as whether rejection of a request to remand the

respondents-accused Nos.1 to 3 by the learned Magistrate

is justifiable or not, the case is made complicated. However,

this Court is duty bound to address all the issues raised.

14. The seminal questions thus germinate for

consideration are-

(1) Whether High Court's power of Revision can be exercised to decide the legality of an order of rejection of remand.

(2) Is the judgment in Arnesh Kumar Vs. State of Bihar, a sword of Damocles as contended.

(3) Is it the mandate of law that no arrest can be effected without there being a notice issued under Section 41-A Cr.P.C. in all cases relating to cognizable offences which are punishable with imprisonment of either description for a term of seven years or less than seven years.

POINT No.1:-

Whether High Court's power of Revision can be exercised to decide the legality of an order of rejection of remand.

12 Dr.CSL, J Crl.R.C.No.699 of 2022

15. Coming to the first aspect i.e., regarding the

maintainability of the present Criminal Revision Case,

admittedly, three types of orders would be passed by the

Courts of law - firstly, interlocutory order, secondly,

intermediate order and thirdly, final order. No doubt, a final

order can be a subject matter of either Appeal or Revision.

Equally, it cannot be doubted that an interlocutory order

cannot be assailed through a Revision. Coming to

intermediate order, when an order which can be termed as

an interlocutory order, in the facts and circumstances of

the case and the result given, attains finality regarding the

subject matter, then it can be termed to be an 'intermediate

order'. Thus, if such an intermediate order is passed, a

Revision certainly lies against such an order.

16. A crystalline observation on the core question was

made by the Hon'ble Supreme Court way back in the year

1977 itself in the case between Amarnath and others Vs.

State of Haryana and others2, wherein it was held as

under:-

1977 AIR 2185 13 Dr.CSL, J Crl.R.C.No.699 of 2022

"The main question which falls for determination in this appeal is as to, the what is the connotation of the term "interlocutory order" as appearing in sub-s.(2) of s.397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal significance and does not present any serious diffident. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes.

In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to, us that the term "interlocutory order" in s.397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights, or the liabilities of the parties. Any order which substantially affects the, right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in s. 397 of the 1973 Code."

14 Dr.CSL, J Crl.R.C.No.699 of 2022

17. The subsequent decisions of Hon'ble Supreme Court

viz., Girish Kumar Suneja Vs. CBI3 and Madhu Limaye

Vs. State of Maharashtra4 also followed the same

proposition. Pertinently, in the decision relied upon by the

learned senior counsel appearing for the respondents in the

case between State reptd by Inspector of Police Vs.

N.M.T.Joy Immaculate5, the observations made in the

preceding judgments were endorsed.

18. In the case on hand, an order accepting the request

for remand would send the accused to jail and refusal to do

so would let them free. Thus, such an order which tends to

decide the liberty of accused on one hand and the right to

arrest by police on the other hand finally and conclusively,

cannot be termed to be an interlocutory order. Thus, this

Court holds that the impugned order certainly amounts to

an intermediate order. Therefore, Revision lies.

Point No.2:-

Is the judgment in Arnesh Kumar Vs. State of Bihar), a sword of Damocles as contended.

  (2017) 14 SCC 809

  AIR 1978 SC 47

  AIR 2004 SC 2282
                                15                             Dr.CSL, J
                                                 Crl.R.C.No.699 of 2022

19. The Hon'ble Apex Court while dealing with the afore-

mentioned case regarding an offence punishable under

Section 498-A IPC, made certain observations and laid

down general guidelines to be followed by the police officers

and the Magistrates while exercising the power of arrest

and remand. Those observations are prominent. The said

decision gave pertinent-cum-path laying guidelines. Certain

observations were also made with regard to the procedure

to be adopted by the police officers while effecting arrest. In

the same manner, certain guidelines were issued to the

Magistrates who exercise the power of remand to follow.

The whole endeavour of the Hon'ble Apex Court while

rendering the said judgment, in the words of the

Honourable Bench, is 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."

20. Since arrest brings humiliation, downsize freedom

and casts scar for ever, further with a view that no arrest

shall be made only because the offence is non-bailable and

cognizable, certain guidelines were issued by the Hon'ble

Apex Court.

16 Dr.CSL, J Crl.R.C.No.699 of 2022

The guidelines that were issued by the Hon'ble Apex Court in the said judgment, so far as the police officers are concerned are as under:-

"7.1 From a plain reading of the aforesaid provision, it is evident that a person accused of an 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 his satisfaction that such person had committed the offence punishable as aforesaid. A 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.

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. The law further requires the police officers 17 Dr.CSL, J Crl.R.C.No.699 of 2022

to record the reasons in writing for not making the arrest.

7.3. In pith and core, the police officer 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 CrPC."

21. The guidelines that were issued by the Hon'ble Apex Court in the said judgment for the Magistrates to follow are as under:-

"8.2 Before a Magistrate authorises detention under Section 167 CrPC, 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 are 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 18 Dr.CSL, J Crl.R.C.No.699 of 2022

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 satisfied that the condition precedent for arrest under Section 41 CrPC has been satisfied and it is only thereafter that he will authorise the detention of an accused.

8.3. The Magistrate before authorising detention will record his own satisfaction, may be in brief but the said satisfaction must reflect from his 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 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 his satisfaction in writing that the Magistrate will authorise the detention of the accused.

8.4. 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 19 Dr.CSL, J Crl.R.C.No.699 of 2022

conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny."

22. A word of caution was given by the Hon'ble Apex Court for

the police officers to follow and for the Magistrates to strictly

implement the law laid down.

23. The caution given by the Hon'ble Apex Court in respect of the police officers is as under:-

"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."

24. The caution given by the Hon'ble Apex Court so far as Judicial Magistrates are concerned, is as under:-

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

25. The submission of the learned Advocate General is

that by fear of action, more particularly the caution give by

the Hon'ble Apex Court in Arnesh Kumar's case (first cited

supra), the Judicial Magistrates are not exercising the

power of remand and are returning the remand reports 20 Dr.CSL, J Crl.R.C.No.699 of 2022

directing the police to issue notice under Section 41-A

Cr.P.C. and the same is undesirable.

26. As rightly pointed out, no where in the judgment that

is rendered by the Hon'ble Apex Court in Arnesh Kumar's

case (first cited supra), it is laid down that the police officer

is not empowered to arrest the accused for the offences

punishable with imprisonment of either description for a

term of seven years or less than seven years, though the

offences alleged to have been committed are cognizable in

nature and falls within the ambit of Section 41(1) Cr.P.C.

The discussion that will go on in point No.3 would make

the above observations clear.

27. A parental guidance by the Supreme Court through

the judgment in Arnesh Kumar's case is thus not a sword

of Damocles either in respect of police officers or

Magistrates who exercise the power of arrest and remand

respectively.

Point No.3:-

Is it the mandate of law that no arrest can be effected without there being a notice issued under Section 41-A Cr.P.C. in all cases relating to cognizable offences which are punishable with imprisonment of either 21 Dr.CSL, J Crl.R.C.No.699 of 2022

description for a term of seven years or less than seven years.

28. Chapter V of the Code of Criminal Procedure, 1973,

deals with the procedure to be followed while effecting

arrest of persons. Section 57 Cr.P.C. lays down that no

police officer shall detain in custody a person arrested

without warrant for a longer period than 24 hours,

however, exclusive of the time taken for journey. Section

167 Cr.P.C. lays down the procedure to be followed when

investigation cannot be completed within 24 hours. It says

that where the investigation cannot be completed within

the period of 24 hours fixed by Section 57 Cr.P.C. and

where there are grounds for believing that the accusation

or information is well founded, the officer in-charge of the

Police Station or the police officer making the investigation

shall forthwith transmit to the nearest Magistrate a copy of

the entries in the diary and shall at the same time forward

the accused to such Magistrate. It also says that the

Magistrate to whom the accused person is forwarded,

whether he has or has not got jurisdiction to try the case,

authorise the detention of the accused in such custody as

he thinks fit for a term not exceeding 15 days in the whole.

22 Dr.CSL, J Crl.R.C.No.699 of 2022

29. In the case on hand, the learned Magistrate failed to

remand the respondents-accused Nos.1 to 3 to judicial

custody solely on the ground that the arrest is illegal for

not giving mandatory notice under Section 41-A Cr.P.C., as

held by the Hon'ble Apex Court in Arnesh Kumar's case

(first cited supra).

30. The impugned order reads as under:-

"A-1 to A-3 are produced through PC 5771, 11605, 11613 and 11142 of PS Rajendranagar, R.R. District at 9.15 pm and also Shiva Reddy, ASI, PC 6080, PC 2790 and HG 1760 of PS Moinabad. Verified the particulars of the accused. A-2 stated that police did not allow him to contact his advocate. The alleged offences are under Sections 120-B, 171-B r/w 171-E, 506 r/w 34 IPC and Section 8 of the PC Act, 1988. Maximum punishment prescribed is upto 7 years for the offence u/s 8 of PC Act. Therefore, as per decision of Hon'ble Apex Court in Arnesh Kumar Vs. State of Bihar, it is mandatory to issue notice under Section 41-A Cr.P.C. to the accused persons. But, police violated to follow the guidelines of Hon'ble Supreme Court. Hence, arrest of accused Nos.1 to 3 is illegal for not giving mandatory notice under Section 41-A of Cr.P.C. Therefore, it is a fit case to reject the remand of the accused persons. Accordingly, remand report is rejected. A-1 to A-3 are set free.

23 Dr.CSL, J Crl.R.C.No.699 of 2022

Police are directed to release A-1 to A-3 as far as this crime is concerned."

31. The submission made by the learned Advocate

General is that there is no mention in the judgment

rendered by the Hon'ble Apex Court in Arnesh Kumar's

case (first cited supra) that where the offence is punishable

with imprisonment of either description for a term of seven

years or below seven years, it is mandatory to issue notice

under Section 41-A Cr.P.C. and that the remand has to be

rejected on that ground.

32. To answer the said point, an analysis of the

circumstances where police are empowered, under Section

41 Cr.P.C., to arrest without warrant is essential.

33. Any police officer may, without an order from a

Magistrate and without a warrant, arrest any person under

the following circumstances:

Circumstance No.I:

Who commits, in the presence of a police officer, a cognizable offence;

Circumstance No.II:

Against whom a reasonable complaint has been made, or credible information has been received, or a reasonable 24 Dr.CSL, J Crl.R.C.No.699 of 2022

suspicion exists that he has committed a cognizable offence 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 However to exercise aforementioned power, the following twin conditions should be satisfied:-- Firstly, that the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; Secondly, that the police officer is satisfied that such arrest is necessary--

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) unless such person is arrested, his presence in the Court whenever required cannot be ensured.

Circumstance No.III:

Against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence.

                             25                           Dr.CSL, J
                                            Crl.R.C.No.699 of 2022


Circumstance No.IV:

Who has been proclaimed as an offender either under Cr.P.C or by order of the State Government.

Circumstance No.V:

In whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing.

Circumstance No.VI:

Who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody.

Circumstance No.VII:

Who is reasonably suspected of being a deserter from any of the Armed Forces of the Union.

Circumstance No.VIII:

Who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India.

Circumstance No.IX:

Who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356 Cr.P.C.

                              26                            Dr.CSL, J
                                              Crl.R.C.No.699 of 2022


Circumstance No.X:

For whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

34. It is pertinent to mention that in case, such arrest is

effected, the police officer is under obligation to record,

while making such arrest, his reasons in writing.

35. Also, the police officer shall, in all cases, where the

arrest of a person is not required under Section 41(1)

Cr.P.C., record the reasons for not making the arrest, in

writing.

36. Therefore, it is abundantly clear that in all cases, the

police officer is under obligation to record the reasons in

writing either for making the arrest or for not making the

arrest as provided under Section 41 (1) Cr.P.C.

37. Now, coming to Section 41-A Cr.P.C., it clearly lays

down that in all cases, where the arrest of a person is not

required under the provisions of Section 41(1) Cr.P.C., the 27 Dr.CSL, J Crl.R.C.No.699 of 2022

police officer shall issue a notice as required under the said

provision.

38. Thus, it is explicit that only when the police officer

feels that arrest of a person is not required under the

provisions of Section 41(1) Cr.P.C., he is bound to issue

notice under Section 41-A Cr.P.C. Therefore, what can

safely be held is that where the police officer feels that

arrest of a person is required under any of the categories

mentioned under Section 41(1) Cr.P.C., he can arrest the

person and there is no requirement of issuance of notice

under Section 41-A Cr.P.C.

39. Thus, at the cost of repetition, it is again reiterated

that no where in the judgment rendered by the Hon'ble

Apex Court in Arnesh Kumar's case (first cited supra), it is

laid down that when the case falls within the ambit of

Section 41(1) Cr.P.C., there is requirement to issue notice

under Section 41-A Cr.P.C.

40. Hence, this Court is of the view that the learned

Magistrate clearly erred in rejecting the request for remand

of the respondents-accused Nos.1 to 3 on the sole ground 28 Dr.CSL, J Crl.R.C.No.699 of 2022

that the mandatory requirement of issuance of notice

under Section 41-A Cr.P.C. is not followed.

41. The reasons shown by the investigating agency,

seeking for remand of the respondents-accused Nos.1 to 3,

in the remand report are as follows:-

"(1) The accused persons/A-1 to A-3 did not co- operate in the investigation of the case, due to which the investigation could not completed within (24) hours of their custody.

(2) The Police Custody of the accused persons is very much essential to due to the seriousness of the charges against them.

(3) In order to prevent accused persons from causing the evidence of the offence to disappear or tamper with such evidence in any manner.

(4) To prevent accused persons from making any inducement, threat or promise to any person acquainted with the facts of the case, so as to dissuade him from disclosing such facts to the court or to any Police Officer.

(5) To ensure that the accused persons shall not commit similar offences of which they are presently accused of

(6) The accused persons are likely to interfere with the process of further investigation and likely to 29 Dr.CSL, J Crl.R.C.No.699 of 2022

interfere with the process of recording of 164 Cr.P.C. statement of the complainant.

(7) Further, several other witnesses and other documents are to be examined and other follow up action needs to be taken up in this case."

42. Now, let us see whether the case falls under Section

41(1)(b) Cr.P.C., which is mostly relied upon the learned

Advocate General.

43. For exercising the power of arrest under the said

provision, as earlier indicated, twin conditions have to be

complied.

44. Firstly, that the police officer has reason to believe

that on the basis of complaint or information or suspicion,

the accused have committed a cognizable offence

punishable with imprisonment for a term which may be

less than seven years or which may extend to seven years.

45. In the case on hand, the version of the investigating

agency is that they received a complaint as well as credible

information. Further, the offences alleged are cognizable in

nature.

                               30                            Dr.CSL, J
                                               Crl.R.C.No.699 of 2022


46.     The   learned   Advocate     General   has     made       it

abundantly clear that sufficient material is collected by the

investigating agency which formed basis to believe that the

respondents have committed the offences narrated in the

First Information Report.

47. Second condition to be taken care of is that the

police officer has to be satisfied that arrest of such persons

is necessary to prevent such persons from committing any

further offence or for proper investigation or to prevent

such persons from causing the evidence to disappear or to

prevent such persons from tampering with such evidence

or to prevent such persons from making any inducement,

threat or promise to any person acquainted with the facts

of the case, or on finding that unless such persons are

arrested, their presence in the Court whenever required

cannot be ensured.

48. If any of the above conditions as laid down under

Section 41(1)(b)(ii) are complied with along with compliance

of Section 41(1)(b)(i) Cr.P.C., the police officer would well be

empowered under Section 41(1)(b) Cr.P.C., to effect arrest

of such person.

31 Dr.CSL, J Crl.R.C.No.699 of 2022

49. In the case on hand, the grounds urged seeking for

remand certainly fall under the above categories as per the

remand report. The twin conditions are satisfied. Therefore,

this Court is of the view that the learned Magistrate

patently erred in refusing to remand the respondents.

50. Also, by all the above discussion, it is abundantly

clear that non-exercise of power, by ill-reading and

misinterpreting both the judgment in Arnesh Kumar's

case (first cited supra) and Section 41Cr.P.C., resulted in the

impugned order.

51. Thus, this Court ultimately holds that the order

that is rendered by the learned Magistrate which is under

challenge is unsustainable and therefore, the same

requires to be set aside.

52. Resultantly, the Criminal Revision Case is allowed.

The order that is rendered by the learned I Additional

Special Judge for SPE and ACB Cases, Hyderabad, dated

27.10.2022, in Crime No.455 of 2022 of Moinabad Police

Station, is hereby set aside.

53. It is brought to the notice of this Court that despite

of the order of this Court, dated 28.10.2022, the 32 Dr.CSL, J Crl.R.C.No.699 of 2022

respondents failed to furnish their residential particulars to

the Commissioner of Police, Cyberabad.

54. The respondents therefore are directed to surrender

before the Commissioner of Police, Cyberabad

Commissionerate, forthwith. In case, the respondents fail to

surrender, Police officials are at liberty to take steps for

effecting their arrest. On such surrender or arrest, the

respondents shall immediately be produced before the

Magistrate concerned for remanding them to judicial

custody. All the formalities as required under Sections 50-

A, 51 and 54 to 57 Cr.P.C. shall be followed. The learned

Magistrate shall verify about the compliance of

requirements under the above provisions and thereafter,

remand the respondents-accused Nos.1 to 3 to judicial

custody as provided under the provisions of the Code of

Criminal Procedure, 1973.

55. As a sequel, miscellaneous applications, if any,

pending, shall stand closed.

________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA 29.10.2022 Note:

LR copy to be marked.

B/o dr