2022 (10) TMI 1262 - HC - Indian Laws

Rejection of request of the Assistant Commissioner of Police Cyberabad Commissionerate to remand the respondents-accused Nos. 1 to 3 to judicial custody - power of High Court to decide the legality of an order of rejection of remand - applicability of judgment in Arnesh Kumar Vs. State of Bihar 2014 (7) TMI 1143 - SUPREME COURT - arrest without there being a notice issued under Section 41-A Cr.P.C. Whether High Court s power of Revision can be exercised to decide the legality of an order of rejection of remand? - HELD THAT - 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. Is the judgment in Arnesh Kumar Vs. State of Bihar a sword of Damocles as contended? - HELD THAT - As rightly pointed out no where in the judgment that is rendered by the Hon ble Apex Court in Arnesh Kumar s case 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 - 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. 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? - HELD THAT - Section 41-A Cr.P.C. 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 police officer shall issue a notice as required under the said provision. 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. - 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 that the mandatory requirement of issuance of notice under Section 41-A Cr.P.C. is not followed. 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 - the Criminal Revision Case is allowed.

Summary

Issues Involved:

1. Maintainability of the Criminal Revision Case against an interlocutory order.
2. Applicability and interpretation of the judgment in Arnesh Kumar Vs. State of Bihar regarding arrest procedures.
3. Requirement of issuing a notice under Section 41-A Cr.P.C. before arrest in cases of cognizable offences punishable with imprisonment of seven years or less.

Issue-wise Detailed Analysis:

Point No. 1: Maintainability of the Criminal Revision Case

The Court examined whether the High Court's power of Revision can be exercised to decide the legality of an order of rejection of remand. The judgment clarified that orders passed by courts can be categorized as interlocutory, intermediate, or final. While interlocutory orders generally cannot be challenged through Revision, an intermediate order, which affects the rights of the parties conclusively, can be subject to Revision. The Court held that the order in question, which affects the liberty of the accused and the police's right to arrest, is an intermediate order, and thus, a Revision is maintainable.

Point No. 2: Applicability of Arnesh Kumar Judgment

The Court addressed whether the judgment in Arnesh Kumar Vs. State of Bihar serves as a deterrent to the exercise of arrest and remand powers. The Supreme Court in Arnesh Kumar provided guidelines to prevent unnecessary arrests and ensure that Magistrates do not authorize detention casually. The judgment emphasized that arrests should not be made merely because the offence is non-bailable and cognizable. The Court clarified that the guidelines do not prohibit arrests but require police officers to record reasons for arrest and ensure compliance with legal standards. The Court concluded that the Arnesh Kumar judgment is not a hindrance but a guide for police and Magistrates in exercising their powers judiciously.

Point No. 3: Requirement of Notice under Section 41-A Cr.P.C.

The Court deliberated on whether it is mandatory to issue a notice under Section 41-A Cr.P.C. before arresting individuals for cognizable offences punishable with imprisonment of seven years or less. The judgment clarified that Section 41-A Cr.P.C. applies only when the police officer decides not to arrest. If the officer believes arrest is necessary under Section 41(1) Cr.P.C., no notice is required. The Court found that the Magistrate erred in rejecting the remand based solely on the absence of a Section 41-A notice, as the arrest was justified under Section 41(1) Cr.P.C. The Court held that the police had satisfied the conditions for arrest, making the Magistrate's order unsustainable.

Conclusion:

The Court set aside the Magistrate's order rejecting the remand request, allowing the Criminal Revision Case. It directed the respondents to surrender to the Commissioner of Police, and if they fail to do so, authorized the police to arrest them. The respondents are to be produced before the Magistrate for remand to judicial custody, ensuring compliance with the Code of Criminal Procedure provisions. The judgment underscores the balance between procedural safeguards and the necessity of arrest in certain cases, clarifying the application of legal standards in remand and arrest procedures.