The Kerala High Court has recently issued Show Cause Notice to a Magistrate for failure to attest whether the arrest has been made in compliance with the Supreme Court precedent in Arnesh Kumar Vs. State of Bihar & ANR., 2014 Latest Caselaw 427 SC
The Division Bench comprising of Justice Alexander Thomas and Justice Shoba Annamma Eapen also allowed the Contempt Petition and issued Notice to the Police Officer who carried out the arrest.
Brief Facts of the Case
The petitioner was a 22 year old divorced lady who was having a ten month old baby. She was residing with the mother who was in a live-in-relation. She later alleged sexual-harassment by the partner of her mother.
She had approached the Police complaining for the same. When the mother got to know about the same, she allegedly threatened the petitioner not to return to the house and thereafter filed a complaint alleging that the woman had deliberately and intentionally deserted her child at the mother's residence. She then went to office of the Commissioner of Police with the complaint but no receipt was issued on the said complaint and the fact whether the said complaint was processed or not is yet not diclosed.
The mother of the petitioner complained with the Child Welfare Committee regarding the desertion of the child based on which false criminal proceedings were allegedly initiated by the respondent Police Officer. Later, arrest was made without serving of any Notice and informing the petitioner of the reason for the arrest.
Initial FIR was registered under Section 57 of the Kerala Police Act, which deals with man missing report. However, subsequently the respondent Police Officer altered the offence as those under Section 75 read with Section 87 of the Juvenile Justice Act. Later, arrest of the petitioners was made without serving of any Notice and informing them of the reason for the arrest.
The Jurisdictional Magistrate also allowed the remand of both petitioners.
High Court's Observation
The Court at the outset analysed the offences alleged under the JJ Act and concluded that the same would come within the ambit of Section 41 A(1) of the Cr.PC instead.
It opined that the Magistrate mechanically without any application of mind remanded both the petitioners, ignoring statements of the petitioner with regard to the alleged sexual harrasment.
The Court mentioned Arnesh Kumar (supra) and pointed out that prior notice in terms of Section 41A of the CrPC should be mandatorily served by the Police Authorities on the accused within two weeks of the date of institution of the case which will be extended by the Superintendent of Police of the District for reasons to be recorded in writing, etc. and that failure to comply with shall apart from rendering the Police Officer liable for departmental action, will also make him liable to face punishment for Contempt of Court to be instituted before the High Court concerned.
It therefore noted that in the instant case, issuance of Section 41A Notice was mandatory, not only as per the prescriptions of the Cr.P.C., but also in view of the abovesaid directions issued by the Apex Court in Arnesh Kumar (supra).
The Court also pointed out that as per proviso to Section 75 of the JJ Act, the respondent Police Officer was bound to satisfy himself as to whether the alleged abandonment or desertion of the child was with deliberate premeditation and intention or whether it was out of reasons beyond the control of the accused.
It aslo took into consideration the fact that when the petitioners were called to the Police Station, they were on the bonafide belief that the FIR was registered only as a man missing report under Section 57 of the Kerala Police Act and the respondent Police Officer had never properly apprised the petitioners that the offence has been duly altered.
Citing another direction, the Court stated that authorizing detention without recording proper reasons by the Judicial Magistrate concerned shall also be liable for Departmental action by the appropriate High Court etc.
Referring to the precedent Arnesh Kumar (supra), the Court stated that it is well established as an elementary proposition of criminal jurisprudence that no arrest can be made merely because it is lawful for the Police Officer to do so and the existence of the power to arrest is one thing and justification of the exercise of it is quite another and no arrest shall be made without reasonable satisfaction reached after some investigation about the genuineness and bonafides of a complaint and a reasonable belief that both as per the person's complicity and even as to the necessity to arrest that person and denial of liberty is a serious matter, etc.
In background of the above, the Court opined that the Police breached more guidelines than it adhered to and accordingly admitted the contempt case.
The Magistrate was also made accountable for his inactions as well.
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