There is a colossal pendency of cases especially in the criminal side in every High Court. Alarming pendency could be witnessed in cases pertaining to anticipatory bail applications, regular bail applications and F.I.R quashing writ petitions and 482 petitions. An analysis of the nature of these cases indicate that majority of the cases related to:
a. Matrimonial offences, that is, cases of 498A I.P.C., Dowry Prohibition Act
b. Cases of right to choice in marriage in which F.I.R.’s are under section 363, 366 PC are registered once the young couple enters into a marriage of choice against the wishes of the family.
c. Breach of promise of marriage
d. Cases under law relating to Excise Act especially in states having a strict prohibition policy.
e. Cases under the offences of cheating, relating to sale deed, gift deed.
f. Cases in which allegations are that accused took money for procuring a job and committed offence of cheating.
In these cases, a large volume of petitions are filed one after another starting from a writ petition for quashing of F.I.R. and stay of arrest followed by anticipatory bail applications before the Sessions court and High court and eventually leading to petitions under section 482 Cr.P.C. or a writ petition for quashing of chargesheet in criminal proceedings and even regular bail under section 439 Cr.P.C.
Most of these cases involve allegations of commissions of offences which entail a maximum punishment which is less than seven years. The moot question is once the parliament has enacted section 41A Cr.P.C. which mandates issuance of a prior notice to an accused and lays down an embargo that if the accused complies with and continues to comply with the notice, he shall not be arrested. Then why such a large number of writ petitions, 482 petitions and bail applications are flooding the constitutional courts.
Not only section 41 CrPC but the judgment of the Hon’ble Supreme Court of India in Arnesh kumar vs State of Bihar are binding upon the investigating agencies.
The solution to this problem of huge pendency would involve taking steps to ensure the compliance of the mandatory statutory provisions on one hand and strict compliance of the various judgments of Hon’ble Supreme Court of India on the other hand.
These suggestions deal with tackling the following issues:
I. Steps to reduce the number of filings of fresh bail applications, both anticipatory and regular before the High Court:
a. [Executive domain: 41-A compliance by police;
b. Judicial domain: the District Court may consider granting anticipatory bail by directing applicant not to be arrested till compliance of S. 41-A CrPC;
c. S. 88 CrPC compliance: Section 88 Cr.P.C. provides as follows:
“88. Power to take bond for appearance. When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial.”
In the case of Vishwanath Jhaloka and others vs State [1989 CRLJ 2082], it was held by the Hon’ble Allahabad High Court as follows:
9. When contingency for issuing a warrant as laid down in Section 87 has not arisen, the Magistrate should invariably think of issuing summons only. While issuing summons the Magistrate should bear in mind Section 205 Cr. P.C. which empowers the Magistrate to dispense with the personal attendance of the accused and to permit him to appear by his pleader. The Magistrate may at any stage of the proceedings, even though he has earlier exempted personal attendance of the accused, order the accused to be personally present Where the accused in a complaint case are of different districts or State, the Magistrate should invariably issue a summons to the accused dispending his personal attendance and permitting him to appear through pleader. This will automatically minimise mischievous and vexatious complaints simply filed for causing harassment and humiliation to the accused. Even when the personal attendance of the accused in a criminal case has not been exempted or when a warrant is issued to the accused in a complaint case under Section 204(1)(b) and the accused after being served with summons or warrant or having come to know of the same appears before the Magistrate, it is not at all legal for the Magistrate to take him into custody and then grant judicial remand necessitating a bail application and a bail order under Section 437 Cr. P.C. when a person appears or is brought before a Magistrate or court in response of summons or warrant, the proper procedure to be followed is laid down in Section 88 Cr. P.C., which runs as under:
88. Power to take bond for appearance -When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial.
11. It is thus obvious that practice followed in the courts of Magistrate by even some members of the bar, namely, moving an application for surrender of the accused in a complaint case and then after the accused is taken in the custody applying for bail is contrary to provisions of Cr. P.C. and is altogether unwarranted. It should be immediately given up and the accused of the complaint cases should be assured that they will be honourably dealt with in the courts of the Magistrates. In complaint cases when the accused appear before the Magistrate in response to summonses or warrants, the Magistrates should themselves note the appearance of the accused in the proceeding and should thereafter pass appropriate order for bonds with or without sureties as required under Section 88 Cr. P.C. If members of the bar want to place on the record that certain accused of (Sic) adjournment of the enquiry or trial should be only for reasons to be recorded; remand under this sub-section should not exceed 15 days at a time; when witnesses are in attendance no adjournment or postponement should be granted without examining them, except for special reasons to be recorded in writing and that no adjournment should be granted for purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. Then the explanations of the sub-section make it clear that there must be reasonable cause for a remand and adjournment or postponement. If sufficient evidence has been obtained to raise a suspicion that accused may have committed an offence, and it appears likely that further evidence may be obtained by remand, it should, be treated as reasonable cause for a remand. Terms on which an adjournment or postponement may be granted to include, in appropriate cases, payment of costs by the prosecution or the accused. It is thus obvious that the Parliament intended that there should be minimum restriction to the fundamental right of liberty guaranteed under the Constitution. When an equally efficacious procedure is available for securing attendance of the accused in a complaint case, namely, obtaining bond with or without sureties under Section 88 Cr. P.C., power of judicial remand under Section 309(2) should not be used, otherwise there would be unnecessary infringement of the fundamental right of liberty. Perusal of Sections 88, 89 and 309(2) Cr. P.C., however, make it clear that in cases where accused of complaint case commits default and absents himself from the court entailing his arrest on a warrant issue under Section 89 Cr. P.C. and is unable to offer sufficient cause for his absence, power of judicial remand under Section 309(2) can be used.
In the case of Arvind Kejriwal vs State of Uttar Pradesh [ u/s 482 no. 4136 of 2015], it was held in paragraph 19 that “The position, therefore, bogs down to this: It is within the powers of a magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations to him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the magistrate can consider all aspects and pass appropriate orders thereon before proceeding further.”
Similarly in Hon’ble Apex Court, In the case of Pankaj Jain vs U.O.I. and another [CRLA NO. 321 OF 2018], held as follows in para 23 “ Section 88 of the Cr.P.C. does not confer any right on any person, who is present in a Court. Discretionary power given to the Court is for the purpose and object of ensuring appearance of such person in that Court or to any other Court into which the case may be transferred for trial. Discretion given under Section 88 to the Court does not confer any right on a person, who is present in the Court rather it is the power given to the Court to 22 facilitate his appearance, which clearly indicates that use of word ‘may’ is discretionary and it is for the Court to exercise its discretion when situation so demands. It is further relevant to note that the word used in Section 88 “any person” has to be given wide meaning, which may include persons, who are not even accused in a case and appeared as witnesses. ……….
d. Section 436A Cr.P.C.
436-A CrPC
436A. MAXIMUM PERIOD FOR WHICH AN UNDERTRIAL PRISONER CAN BE DETAINED.
Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:
Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.
e. COMPLIANCE OF LALITA KUMARI GUIDELINES. Para 111 of (2014) 2 SCC 1 Preliminary Inquiry in cases of matrimonial disputes/family disputes, commercial offences, medical negligence cases, corruption cases, abnormal delay cases – FIR more than three months after incident.
f. MANDATORY MEDIATION IN DISTRICT COURTS IN 498-A cases:
g. HC to circulate the following Supreme Court Judgments to all District Courts. There should be compliance of the principles laid down in these Judgments by the district courts:
· Satender Kumar Antil v CBI (SLP (Crl) No.5191 of 2021)
· Amanpreet v CBI (Criminal Appeal No.929 of 2021)
· Siddharth v State of UP (Criminal Appeal No.838 of 2021)
· Arnesh Kumar v State of Bihar
II. Steps for reduction of pending bail applications or early disposal of bail applications, both anticipatory and regular before the High Court:
a. Designated Courts for Cases where maximum punishment prescribed for offence charged is 7 years.
i. to effectively dispose of Anticipatory Bails by compliance of S. 41-A CrPC and
ii. regular bail in compliance with 436-A CrPC
iii. regular bail for non-compliance of S. 41-A .
b. High Court to identify cases which are covered by S.436A CrPC, in pending bail applications, with the aid of SLSA
c. It is also relevant to point out that even bail application of co-accused whose case is at par with the accused of the same offence who has been granted bail remain pending despite having parity. Many accused persons are not given the benefit of the same by the Sessions Court and a large number of cases are filed in the Hon’ble High Courts that remain pending. On the administrative side, the issue of parity should be addressed by the Hon’ble High Court so that similarly situated co-accused persons are given the benefit of an earlier order passed by the superior court.
d. Listing proforma. There should be a listing/filing proforma. There should be a column in every petition/application mentioning at least the following two aspects
i. Whether the offences involve are cnvered under section 41A Cr.P.C. or not.
ii. Whether the benefit of parity accrues to the petitioner/applicant or not and details of the order passed for the co-accused. These two aspects would play a pivotal role in early adjudication of the case at the threshold itself.
e. Anticipatory bail applications can be listed in the fresh list/combined list of every high court before every court of every ld. Single Judge Bench, instead of just listing the cases before one or two single judge benches. In many courts, the list of fresh cases is small and most of the fresh is listed before bail courts and as a consequence the old cases and the pending cases could not be taken up due to paucity of time. If all the fresh cases especially Anticipatory Bail applications and Bail applications are listed before ever single judge bench, then the pendency can be easily resolved as the old cases would be taken up and decided.
III. Steps to reduce the delay in listing of regular bail applications before the High Court
a) E filing portal to contain tabs to disclose information about the maximum sentence of the offence alleged and the compliance with 41-A. Applications which are eligible for invoking requirement under 41A but there has been a non compliance can be listed immediately under a separate head and disposed off immediately.
A. 436-A CrPC
B. It is suggested that the High Court may consider effectively implementing the provision of S.436A CrPC that entitles an undertrial to be released on personal bond if he has undergone detention for a period extending upto one half of the maximum period of imprisonment specified for the offence. Assistance of District Legal Service Authority or State Legal Service Authority can be taken to identify the prisoners eligible to be released in exercise of power u/s 436A CrPC.
S.436A is reproduced below:
“436-A. Maximum period for which an undertrial prisoner can be detained.—Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:
Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.
Explanation.—In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.”
A. This Hon’ble Court in Bhim Singh v. Union of India, (2015) 13 SCC 605 had directed jurisdictional Magistrates/Sessions Judge to hold one sitting in a week for two months commencing from 1-10-2014 to identify and release of such undertrial prisoners who fulfil the requirement of Section 436-A. This Hon’ble Court held that:-
5. Having given our thoughtful consideration to the legislative policy engrafted in Section 436-A and large number of undertrial prisoners housed in the prisons, we are of the considered view that some order deserves to be passed by us so that the undertrial prisoners do not continue to be detained in prison beyond the maximum period provided under Section 436-A.
6. We, accordingly, direct that jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge shall hold one sitting in a week in each jail/prison for two months commencing from 1-10-2014 for the purposes of effective implementation of Section 436-A of the Code of Criminal Procedure. In its sittings in jail, the above judicial officers shall identify the undertrial prisoners who have completed half period of the maximum period or maximum period of imprisonment provided for the said offence under the law and after complying with the procedure prescribed under Section 436-A pass an appropriate order in jail itself for release of such undertrial prisoners who fulfil the requirement of Section 436-A for their release immediately. Such jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge shall submit the report of each of such sittings to the Registrar General of the High Court and at the end of two months, the Registrar General of each High Court shall submit the report to the Secretary General of this Court without any delay. To facilitate compliance with the above order, we direct the Jail Superintendent of each jail/prison to provide all necessary facilities for holding the court sitting by the above judicial officers. A copy of this order shall be sent to the Registrar General of each High Court, who in turn will communicate the copy of the order to all Sessions Judges within his State for necessary compliance.
C. MANDATORY MEDIATION IN DISTRICT COURTS IN 498-A cases: In all anticipatory bail applications in 498-A cases filed in the district courts, a process of mandatory counselling and mediation should be followed. This could reduce future litigation by giving out of Court settlement and conciliation a chance. Upon the ADR failing, the Court may direct the compliance of S. 41-A CrPC before arrest.
SECTION 41-A CRPC COMPLIANCE
D. SUO MOTU WRIT PETITION SEEKING ENFORCEMENT OF S. 41-A, to be instituted by the HC
a. Impleadment of the SLSA.
b. Information should be sought about all arrests made in violation of Section 41-A across the state.
c. Show cause as to why contempt action be not initiated for violation of Arnesh Kumar guidelines.
d. Directions to be issued by the DGP requiring all police authorities to ensure strict compliance of S. 41-A across the state.
e. State should be directed to set up District level committees comprising of DJ, SSP, DM to ensure the compliance of S. 41-A.
E. S. 41-A NON-COMPLIANCE DISPOSAL FROM HIGH COURT: High Court should seek information from registrar about all pending matters where S. 41-A is applicable:
a. List all cases of anticipatory bail pending before the High Court where there is non-compliance of S. 41-A CrPC. List these cases and dispose them with a direction to the police to not arrest unless S. 41-A provision is complied.
b. List of all regular bail cases where arrest was in violation of S. 41-A compliance. List these cases and invite the states to file there serious objections (if any) to these bail applications. Dispose these applications and release on bail all persons who are accused of having committed offences with a maximum sentence of 7 years and where the state does not have any serious objections.
F. DEDICATED COURT: One or two dedicated bail benches be constituted for hearing certain matters exclusively viz a bench for disposal of matters where offences alleged carries a maximum sentence on 7 years. This will ensure consistency and also help in reduction of instances where co-ordinate benches of the HC have granted dissimilar reliefs in applications arising from same FIRs. Will also expedite disposal of matters since the Bench concerned will be well-versed with the law.
A dedicated bench is also essenrtal to decide all cases which pertain to matrimonial offences since matrimonial offences casea constitute the bulk of the pending matters.
G. SPECIAL BAIL DAY: One Saturday per month when all benches are only hearing bails from 10:30 to 4 PM. The number of pending bails will reduce since the number of benches hearing bail will increase and this step will have the effect of increasing efficiency of bail disposal by adding more than 2 work-days per month. The advantage of having only one such day per month and not every Saturday is because there will be little resistance to this both from the High Court as well as the lawyers. This step to be followed at least till the existing pendency figures are reduced by half.
H. The district Courts may consider granting bail in all cases where the HC has granted bail to another similarly situated accused of the same FIR.
I. S. 88 CrPC: District Courts should consider exercising powers under S. 88 CrPC (power to release on personal bond in cases where accused appears in response to a summons). Pankaj Jain Vs. UOI (2018) 5 SCC 743.
J. CIRCULATION OF JUDGMENTS: The following Supreme Court Judgments should be circulated to all District Courts. There should be compliance of the principles laid down in these Judgments by the district courts:
a. Satender Kumar Antil
b. Amanpreet
c. Siddharth
d. Arnesh Kumar
e. Lalita Kumari
f. Rajesh Sharma
g. Saudan Singh
h. Joginder Kumar
i. Sanjay Chandra
j. Dataram
k. Bhim Singh
l. Vishwanath Jhaloka
m. Arvind Kejriwal
K. S. 389 SUSPENSION OF SENTENCE: The High Court should follow the principles laid down in Saudan Singh principle in appeals. Recently on 25.02.2022, the Hon’ble SC of India passed the following order:
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 308/2022 (@ SLP (Crl.) No.4633/2021) SAUDAN SINGH Petitioner(s) VERSUS THE STATE OF UTTAR PRADESH Respondent(s)
O R D E R Leave granted. The appellant has been in custody for around 8 years and the appeal has not been decided yet. The appellant is granted bail on terms and conditions to the satisfaction of the trial Court. Apart from any other conditions to be imposed by the trial Court, the appellant will report to the local police station on the first Monday of every month in the forenoon. In order to find a holistic solution to the problem of hearing of appeal and grant of bail in criminal matters in the Allahabad High Court, in terms of our Order dated 05.10.2021, we were not wanting to detain the matters qua bail. Thus, we directed the bail matters to be placed before 1 the High Court and the Registry to register a Suo moto proceeding and place them before the Court on 16.11.2021. We note with some surprise and consternation that despite the said Order, as per the office report, while the suo moto proceedings have been so registered, they were not listed on 16.11.2021 nor on any date thereafter. We have a report of the High Court of Allahabad which seeks to suggest that the 18 matters remitted to the High Court for consideration of bail were listed on 15.11.2021, 16.11.2021 and 17.11.2021 and that appearances were not put in on behalf of the appellants despite the matters being listed in the roster bench and none appeared to press the matters for being taken up on board. The affidavit is dated 15.11.2021 and learned counsel for the High Court seeks to file an updated report as he states that some matters have been dealt with while in other matters though listed on numerous occasions, none appeared for the accused. We have also emphasized to learned counsel for the State that in reference to our observation on the last date about consideration of cases under the Uttar Pradesh Prisoners Release on Probation Rules, 1938, there should be better coordination between the States and the Registry of the High Court. Thus, for anybody who has completed 14 years of sentence, the case has to be put before the Board to be 2 examined as per the norms. It is not appropriate that those cases lie in the High Court with sentences much beyond 14 years being served without even being examined on the question of their release under the Policy. We thus call upon the High Court and the State Government to prepare a list of such of the cases where the accused have already served out 14 years of sentence and for one reason or the other, the appeal has not been heard (even if it be fault of the lawyer) and those cases should be put before the Board. It is also possible that in some of these cases, once the accused is released, the person may not at all be interested in prosecuting the appeal. There may be cases where for whatever reason the advocate may not be present as has been set out in the report of the High Court but if they have already completed 14 years of actual sentence, the State itself should take an appropriate stand and the learned Judge can himself pass appropriate orders to at least examine those cases for release and the absence of the advocate cannot come in the way in such a scenario. We have put to learned AAG and the learned counsel for the High Court that a list should be prepared of all cases where the person has served out a sentence of 14 years, is not a repeat offender, and in any case if in these cases at 3 one go bail can be granted and cases remitted for examination under the Uttar Pradesh Prisoners Release on Probation Rules, 1938. In all these cases, there is a high possibility that if these people are released, they may not be even interested in prosecuting their appeals. The second category of cases can be one where the person has served out more than 10 years of sentence. In these cases also at one go bail can be granted unless there are any extenuating circumstances against him. We are quite hopeful that the High Court will adopt the aforesaid practice and thus prevent the Supreme Court to be troubled with such matters. The criminal appeal stands disposed of with the aforesaid observation.
Since in Saudan Singh case, the SC held that “where the person has served out more than 10 years of sentence, in these cases also at one go bail can be granted unless there are any extenuating circumstances against him.”
Since this mandate relates to a case of suspension of sentence and grant of bail during pendency of a criminal appeal the benefit of the same can also be extended to under-trials and people facing arrest for offences.
Suggestions to reduce the pendency of Regular Bail applications
Suggestions to reduce the pendency of Anticipatory Bail applications
1. The Hon’ble High Court should direct the State Police to Mandatorily comply with S.41A CrPC and guidelines prescribed in Arnesh Kumar v State of Bihar (2014)8SCC 273 , wherein the court stressed on the important of notice before arrest u/s 41A of CrPC in offences where the maximum sentence is less than 7 years. This Court held that officers not complying with the directions would be liable for departmental actions and also contempt of court.
This Hon’ble Court held that:-
7. As the offence with which we are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1)(b) CrPC which is relevant for the purpose reads as follows:
“41. When police may arrest without warrant.—(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—
(a)***
(b) 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 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, if the following conditions are satisfied, namely—
(i)***
(ii) 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) as unless such person is arrested, his presence in the court whenever required cannot be ensured,
and the police officer shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.”
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 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 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 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 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.
Written By-
Mr. Rishad Murtaza
Advocate, Allahabad High Court at Lucknow
With the Assistance of Advocates Aishwarya Mishra and Ali Jafar
