Andhra Pradesh High Court Seeks Explanation From Magistrate Ordering Remand In Case Of Automatic Arrest on Registration of FIR

"In spite of the clear guidelines by the Hon'ble Apex Court, some of the police officials are continuing to make indiscriminate arrests, immediately after registering the complaint without proper investigation.

In the instant case, prima facie this Court is of the view that the reasons stated in the remand report are not in consonance with the guidelines issued by the Hon'ble Apex Court in Arnesh Kumar's case. Therefore, this Court would like to invite a report along with the record from the Magistrate on what basis Section 41A of Cr.P.C was dispensed with and the accused was remanded," a Single bench of Justice Lalitha Kanneganti ordered.

The Court was hearing an application under Section 482 of CrPC against alleged arbitrary arrest of the Petitioner, a member of the Telugu Desam Party for posting certain material on Facebook promoting enmity, hatred and ill-will between different groups.

Apart from contending that the charges levelled against him fell short of necessary ingredients, the Petitioner had also pointed out that he was arrested without any notice under Section 41A of CrPC.

Reliance was placed on Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, where it was categorically held that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, 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 office is of the opinion that the arrest is necessary.

In light of this ruling, Justice Kanneganti observed,

"If the police officer is dispensing with the notice under Section 41-A and resorting to arrest the accused he shall forward a check list duly filed and shall furnish the reasons along with material which necessitate the arrest while producing the accused before the police. Thereafter while authorizing the detention the Magistrate shall record reasons and failure to comply with the directions shall apart from rendering the police officer concerned for departmental action, he shall also be liable for contempt of Court to be instituted before the High Court. Even the Magistrate is also liable for departmental action by the High Court."

In the present case, the Court observed that no notice was issued to the Petitioner to comply with the aforementioned process of giving notice to the accused and no record was presented indicating the reasons for waiving of such notice.

Further, it was noted that the reasons stated in the remand order passed by the Magistrate were not in consonance with the guidelines issued by the Apex Court in Arnesh Kumar's case. It therefore ordered thus:

"The Sub Inspector of Police, Mangalagiri Town Police Station, Guntur Urban is directed to file a detailed affidavit on what are the steps taken by him in complying with the guidelines / directions issued by the Hon'ble Apex Court in Arnesh Kumar's case while arresting the accused along with the record within two weeks from the date of receipt of a copy of this order.

The Additional Junior Civil Judge, Mangalagiri, Guntur District, who authorized the remand shall submit a report to this Court with regard to the compliance of the guidelines / directions issued by the Hon'ble Apex Court in this case along with record within two weeks from the date of receipt of a copy of this order."

Section 41A of CrPC states that where the arrest of a person is not required under the provisions of sub-section (1) of section 41, the Police officer shall 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.

Interestingly, the point on notice of appearance was also raised in Arnab Goswami's case. While making a case of illegal arrest in the 2018 abetment to suicide case registered against the Republic TV Chief by the Raigad Police, Goswami's lawyers had argued that he was never called for questioning, even once, before being arrested on the Morning of November 4.

Reliance was placed on Joginder Kumar v. State Of UP, 1994 AIR 1349, whereby the Top Court had held that except in heinous offences, "arrest must be avoided" if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.

Case Title: Jangala Sambasiva v. State of AP & Anr.

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