Accused Entitled To Seek Bail On Sole Ground Of Arrest Violating 'Arnesh Kumar' Guidelines : Madhya Pradesh High Court

The Bench of Chief Justice Mohammad Rafiq & Justice Atul Sreedharan observed thus in a Suo Moto Writ Petition initiated in view of the unprecedented situation faced by the country & Madhya Pradesh following the second wave of COVID-19.

On Monday, it was informed to the Court that despite recommendations of the High Powered Committee in its meeting held on May 12, the number of prisoners lodged in different jails of the State of Madhya Pradesh, which was 45,582 (on May 7), as against their total capacity of 28,675, is not going to be substantially reduced.

Suggestions put forth

Therefore, it was submitted that the desired object of decongesting the jails may not be achieved and thus, it was suggested that the High Powered Committee ought to consider recommending the release of all such convicts on parole, who have either served out one-third of the substantive sentence awarded to them or if sentenced to life imprisonment, have completed incarceration of seven years or more.

Additionally, the Senior Counsel and Amicus Curiae suggested that the High Powered Committee ought to also consider recommending release of all such under-trial prisoners on interim bail, who are facing trial for offences exclusively triable by the Court of Magistrate regardless of the outer limit of the sentence.

Third suggestion given by them was that the High Powered Committee should also consider recommending the release of all women prisoners, both convicts and under-trial, regardless of the offence for which they have been convicted and the sentence awarded to them or the maximum sentence that maybe awarded to them upon conviction.

Thus, the Court directed that the data under all these three categories be provided to the HPC, and it shall, in turn, convene its meeting and take into account the aforementioned suggestions while giving its recommendation.

"Arnesh kumar Judgment guidelines not being followed"

Chander Uday Singh, Senior Counsel and Sankalp Kochar, Amicus Curiae, submitted that despite direction issued by the Supreme Court in Arnesh Kumar vs. State of Bihar and another (2014) 8 SCC 273, the police in the State was not following the guidelines.

To this, the Advocate General submitted that he would seek instructions in the matter to find out whether the Director-General of Police has issued general instructions to all the police stations to adhere to the mandatory guidelines issued by the Supreme Court

Court's direction

The Court directed the Director-General of Police to immediately issue fresh direction to all the Police Stations in the State to adhere to the guidelines issued by the Supreme Court in Arnesh Kumar in letter and spirit.

The Court also directed that all the Judicial Magistrates that upon the accused being produced before them by the police for authorizing further detention, shall mandatorily examine whether or not stipulations contained in both Sections 41 and 41A of the Code, have been followed and if, for reasons to be recorded in writing, the Judicial Magistrate concerned is satisfied that mandate of both or any of those provisions, has not been complied with by the police, he/she shall refuse to authorize further detention of the accused and shall direct immediate release of the accused.

Even otherwise, the Court added, if any arrest has been made without adherence to the aforesaid guidelines, the accused concerned would be entitled to directly apply to the court of competent jurisdiction for his regular bail on this ground alone.

The Court also directed the Registrar General of the High Court to again circulate the copy of the judgment of the Supreme Court in Arnesh Kumar along with copy of this order to all the District Judges of the State, for being served upon the Judicial Magistrates in their respective judgeships.

The Court also asked the Director of the State Judicial Academy to organize online/virtual program, in a cluster of districts or division-wise, in batches, for sensitizing, not only the Judicial Magistrates but also the police officers, in tandem with the M.P. Police Academy.

It may be noted that recently, the Supreme Court directed that there should be no arrests in violation of the Arnesh Kumar guidelines.

Cases of Juveniles

Lastly, the Court directed the Member Secretary of the M.P. State Legal Services Authority, Jabalpur to require the Member Secretaries of the respective District Legal Services Authorities to move an appropriate application through their Legal Aid Counsels before the respective Juvenile Justice Boards on behalf of the children in conflict with law, for their release from Observation Homes across the State, who shall consider the application and decide the same within a period of three days from the date of its filing in the light of the observations made by the Supreme Court, especially taking into consideration the proviso to Section 12 of the JJ Act.

Now, the matter will come up for further hearing on May 31.

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