Power To Arrest Can't Be Used As A Punitive Tool Unmindful Of Safeguards Mandated U/S 41 CrPC: Kerala High Court

A Division Bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P ordered so in a petition alleging arrest against the principles laid down by the Supreme Court in Arnesh Kumar v State of Bihar.

"Before we part, we deem it proper to remind that the power to arrest an individual vested in the State and exercised through its police officers at various stages of the criminal justice process, cannot be used as a punitive tool or as a measure of harassment unmindful of the duty to take into account the safeguards provided under Section 41 of the Cr.P.C. before the arrest of a citizen."

It also reminded the authorities that orders and directions issued by courts of law are binding on them and that no attempts should be made to circumvent the same. 

"We remind the authorities concerned that any attempt to circumvent the orders of the court is derogatory to the very dignity of the court and administration of justice. The directions issued by the courts, particularly, by the Supreme Court has to be complied as such without any exception or justification. The directions so issued are binding and must be obeyed by the parties and all concerned stricto sensu."

The Court was adjudicating upon a contempt petition filed by a man booked for offences punishable under Sections 406 (criminal breach of trust) and 420 (cheating) of IPC.

The petitioner argued that he was arrested in total violation of the principles laid down by the Supreme Court in Arnesh Kumar (supra). He added that he was not given notice as mandated under Section 41A  of CrPC before he was arrested.

Advocates Anand Kalyanakrishnan and C. Dheeraj Rajan appearing for the petitioner further pointed out that the respondent Police Inspector had also violated an order issued by the Sessions Court which directed the Station House Officer to give notice under Section 41A if the presence of the petitioner is required for any legal necessity. 

The petitioner submitted that despite such direction, he was arrested in March 2022 and remanded to judicial custody after being produced before the Magistrate. He added that he was in jail for 15 days consequent to the illegal arrest. 

Therefore, the petitioner asserted that since the arrest was in total violation of Arnesh Kumar guidelines and the Sessions Court order, the respondent deserved no leniency while seeking adequate compensation for having spent two weeks in jail.

The respondent Inspector initially attempted to justify his action citing that there were serious charges against the petitioner and that his immediate arrest was necessary to recover the belongings and to avoid exerting external influence on the complainant and the witnesses.

Since the Bench was not satisfied with this answer, Senior Government Unnikrishnan Unnikrishnan Kaimal sought permission to file an additional affidavit and this was allowed.

In the second affidavit, it was stated that the Sessions Court order was passed in 2018 but the FIR was registered in 2022 and the Investigating Officer and the Station House Officer were newcomers in the Station. Therefore, they had no prior knowledge about the order and neither the petitioner nor their relatives or his Advocate had informed them of the order. As such, the respondent sought an apology for his ignorance of the order.

The Bench reminded the respondent that even in the absence of the order of the Sessions Court, the law of the land mandated to follow the directions in the Arnesh Kumar decision. Eventually, the Court found it appropriate to accept the affidavit tendering unconditional apology and to drop the contempt of court proceedings.

However, it was clarified that this will not prejudice any of the rights of the petitioner to take appropriate proceedings in accordance with law to claim compensation for the acts done against him. 

Accordingly, the State Police Chief was directed to take such steps to see that the police in the State scrupulously follow the directions in Arnesh Kumar as well as the recent judgment in Satender Kumar Antil v. CBI & Anr.

Case Title: Muhammed Rafi v. Satheesh Kumar M.V

Citation: 2022 LiveLaw (Ker) 386

Click Here To Read/Download The Order