Rajasthan High Court Seeks Reply From Police Officials In Contempt Plea Alleging Violation Of Apex Court Guidelines On Arrest In Commercial Cases

Rajasthan High Court has recently issued notice to police officials including the Director General of Police in a contempt petition alleging a violation of Arnesh Kumar guidelines and Apex court’s mandate about making arrests in commercial cases.

The contempt case that is currently before Justice Narendra Singh Dhaddha has been filed by a businessman and his family members by highlighting ‘Guideline No.7’ of Arnesh Kumar which states that the High Court can entertain contempt proceedings whenever there is a violation of guidelines regarding the arrest.

In the contempt petition filed by the partner of a cyber firm who was arrested by the Jalupura Police for offenses under Sections 420, 409, and 120 B of IPC, it is mentioned that the FIR pertained to a commercial transaction that occurred in 2016.

The FIR had been filed by Jalupura Police after nearly eight years by disregarding the inordinate delay in making the complaint, the counsel for the petitioner, Advocate Abhinav Sharma added.

The Supreme Court, in Md. Asfak Alam v. The State Of Jharkhand & Anr., 2023 LiveLaw (SC) 583, had directed that the guidelines in Arnesh Kumar must be explicitly laid down as a notification by the High Courts for the lower courts and by the DGPs for the police officers. All registrar generals of High Courts and DGPs were asked to file an affidavit of compliance within 8 weeks. The petitioner argued that though the allotted time has lapsed, the DGP of Rajasthan has not yet issued a notification despite the court order and despite the petitioner urging him to do so while meeting him in person.

Citing Lalita Kumari v. Govt. of U. P & Ors, AIR 2014 SC 187, the petitioner also pointed out that despite the matter being a commercial dispute, no preliminary inquiry was conducted and no notice as contemplated under Section 41-A (Notice of Appearance Before Police Officer) was issued to the petitioner. The petitioner has also made a serious allegation that private recovery agents who were neither the complainant nor his agent had accompanied two police officers at the time of making his arrest.

Another grievance of the petitioner is regarding the denial of his right to make due communication about the factum of his arrest to a person of his choice. The other petitioners, which included his wife as well as his father, were made to frantically run around to determine if the first petitioner was arrested by the police or not.

No checklist was prepared and furnished by the police before the arrest or at the time of making an application before the concerned magistrate for police custody or when a subsequent application was filed for judicial custody, submitted the petitioner.

Advocate Abhinav Sharma further stated that the fundamental rights of the petitioners have been violated by the direct illegal arrest without preliminary investigation in a commercial matter, the blatant violation of Section 41 A CrPC, and the denial of the opportunity to apply for anticipatory bail.

The contempt petition also indicated that the first petitioner has already made representations to the DGP and the Jaipur Police Commissioner (Respondent No. 1 & 2) to take disciplinary action against the Station House Officers and Investigating officer in Jalapura (Respondent Nos 3-5). It was also submitted that the DGP has not taken the necessary steps to issue such a notification yet despite the court order and despite the petitioner urging him in-person to do so.

The reliefs sought by the petitioners include liquidated damages for the humiliation faced by each of the petitioners. The petition also prays for the supervision of the High Court in ensuring that the guidelines promulgated in Arnesh Kumar, Lalita Kumari and action contemplated against erring police officers under Section 166A CrPC are strictly complied with.

The petition urges that steps must be taken to display the said guidelines conspicuously in all police stations, jails, and sub jails in the state so that those under trial will be aware of their rights. The petitioner has also requested that the court remove all the contemnors from official duties till the court deems fit and send them to the National Judicial Academy for orientation.

It is pertinent to note that the petitioner has also submitted a separate representation on the administrative side to the Chief Justice of the High Court to take action against the judicial magistrate who passed the allegedly illegal orders of remand.

According to the petitioner, the bail application presented soon after he was remanded to judicial custody was disposed of without fully hearing the counsel for the petitioner.

Case Title: Sanjay Thakur & Ors. v. Umesh Mishra, IPS & ors.

Case No: S.B. Civil Contempt Petition No. 1084/2023

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