Summoning And Detaining A Person Without There Being Any Crime Registered Against Him Illegal: Supreme Court

The Supreme Court observed that summoning and detaining a person without there being any crime registered against him would be violative of basic principles.

The directions issued in Arnesh Kumar vs. State of Bihar (2014) 8 SCC 273, would be applicable even if no crime was registered, the bench of Justices UU Lalit, S. Ravindra Bhat and Bela M. Trivedi observed.

In this case, a man approached the Andhra Pradesh High Court seeking a direction not to arrest him without giving due notice under Section 41A of Code of Criminal Procedure. His wife had filed a complaint alleging offences under Section 498A of the Indian Penal Code. The single Judge thus directed the police to strictly follow the guidelines laid down by the Supreme Court in Arnesh Kumar Vs. State of Bihar.

Later, he filed a Contempt Case alleging that in spite of the order passed by the High Court, he was forcibly taken away by the police officer to Akividu police station and detained him there. 

The single bench took note of the enquiry report filed bu Metropolitan Sessions Judge in this matter which stated that the petitioner was not only summoned to Akividu Police Station in the name of counseling but was also detained. The bench thus held that the police officer is guilty of contempt of court. He was sentenced to suffer three months imprisonment.

Setting aside this order, the Division bench observed that since no crime was registered, the directions issued in Arnesh Kumar v. State of Bihar  would not come into play. "But in the instant case, no crime was registered till date. When there is no crime, the question of arresting the writ petitioners would not arise.", the Division bench observed.

The Apex Court bench , taking note of the enquiry report, observed that there was clear violation of the directions issued by this Court not only in Arnesh Kumar but also in the case in D.K. Basu v. State of West Bengal

"The mere fact that no crime was registered, could not be a defence, nor would it be an escape from the rigour of the decisions rendered by this Court. As a matter of fact, summoning the person without there being any crime registered against him and detaining him would itself be violative of basic principles", the court observed.

Restoring the single bench order, the Court modified the substantive sentence of three months to 15 days.

In Arnesh Kumar, the court had issued the following guidelines:

1. All the State Government should instruct its police officers not to automatically arrest a person when an offence under section 498-A of the Indian Penal Code is registered. The necessity of arrest arises when the case falls under the parameter of section 41 of the Code of Criminal Procedure.
2. All police officers be provided with the check list containing specified clauses under Section 41 (1) (b) (ii).
3. The police officer shall forward the check list duly filed and furnished with the reason and material necessitated the arrest while producing accused before the magistrate for further detention.
4. The magistrate while authorizing the order of further detention shall rely upon the report furnished by the police officer and only after recording the reason duly furnished on Police report and on the satisfaction, the Magistrate will authorize further detention.
5. The decision not to arrest an accused be forwarded to Magistrate within two weeks from the date of institution of the case with a copy of Magistrate which may extended by the Superintendent of police of the district for the reason to be recorded in writing.
6. Notice of Appearance in terms of Section 41-A of the Code of Criminal Procedure be served upon the accused within two weeks from the date of institution of case which may be extended by the Superintendent of Police after recording the reason in writing.
7. Failure to comply with the directions mentioned above shall rendered the police officer liable to be punished for contempt of court before High Court having jurisdiction.
8. Authorizing detention by the Judicial Magistrate without recording the reason, the concerned Judicial Magistrate shall be liable for Departmental Proceedings by the High Court.

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