Failure To Comply With Arrest Procedure: Jharkhand High Court Grants Interim Bail To News 11 Bharat Journalist, Mulls Contempt Action Against Police

The Jharkhand High Court has granted interim bail to News 11 Bharat Journalist Arup Chatterjee while noting that he was arrested without following the procedure under Section 41-A and the procedure pertaining to production of accused before Magistrate under Sections 80 and 81 CrPC.

A Single Judge Bench of Justice Sanjay Kumar Dwivedi also called for an affidavit from the State explaining its officers' actions and will then consider the question of arbitrary use of the police's power to arrest and plausibility of initiating contempt proceedings.

Chaterjee's bail plea filed through Advocate Shahnawaz Mallick was dismissed by the trial court on the same day.

Section 41-A provides for notice demanding appearance of the accused before police officer. The same was held to be mandatory by the Supreme Court in Arnesh Kumar v State of Bihar, where several guidelines for arrest were also issued. 

Section 80 provides that when an arrest warrant is executed outside the district in which it was issued, the person arrested shall, unless the Court which issued the warrant is within 30 kilometres of the place of arrest or is nearer than the specified authorities within the local limits of whose jurisdiction the arrest was made, be taken before such Magistrate.

Section 81 provides the procedure to be followed by the Magistrate before whom such person arrested is brought.

The journalist's wife had approached the High Court alleging that the arrest was made without following the due process of law. It was submitted that the petitioner's husband was arrested at midnight between July 16th and 17th, 2022, from his residence in Ranchi. Moreover, Advocate Ajit Kumar, representing the petitioner, argued that the family members were not allowed to meet the arrested journalist. The Dhanbad police came to Ranchi without intimation to the local police and flouted the due procedure prescribed under Sections 80 and 81 of CrPC, it was alleged.

It was further contended that the Police did not issue any notice under Section 41-A CrPC. The petitioners referred to the case of Satender Kumar Antil v. Central Bureau of Investigation (2010) to support their case. It was submitted that due to the petitioner's broadcast of a story against corruption, the FIR had been lodged falsely. It referred to Dhanbad police as 'highers shut the mouth of one of the pillars of the democracy.'

On the contrary, AAG-II Sachin Kumar opposed the petition based on maintainability, stating that the petitioner is not an aggrieved person  as required to file a petition under Section 482 CrPC and Article 226 of the Constitution of India.

The State relied on the case of Harsh Mander v. Amit Anilchandra Shah & Ors. They informed the Court of severe allegations against the petitioner's husband of extortion. Moreover, it was submitted that the judgment in Arnesh Kumar v. State of Bihar (2014) did not apply to the case at hand.

The Court noticed that based on the entire documents prima facie, it appears that before obtaining the warrant of arrest from the concerned Court, no notice under Section 41-A CrPC was issued to the petitioner's husband to cooperate in the investigation. Moreover, friends and relatives were not allowed to meet the arrested journalist, despite several directions from the Supreme Court and several High Courts.

In such a situation, Court held that the petition could not be dismissed solely on locus standi. Acknowledging that in a criminal proceeding, only an aggrieved person can file a petition, however, in the instant case, the liberty of the petitioner's husband has been taken away by arresting him at midnight, the Court revisited the guidelines laid by the Supreme Court in Arnesh Kumar v. State of Bihar and D.K. Basu v. State of West Bengal (1997).

The Court acknowledged that there is no doubt that the hierarchy of Court is provided to consider the application for bail under Section 439 Cr.P.C. However, suppose such a case in which liberty has been taken away by the police is brought before the High Court under Article 226 of the Constitution of India, in that case the High Court cannot shut its eyes by rejecting the petition.

"Prima facie, it appears that the direction of the Hon'ble Supreme Court in the case of Arnesh Kumar and D.K. Basu (supra) has not been followed and in those cases, the Hon'ble Supreme Court has gone to the extent that if the directions are not followed by the police officials, contempt proceeding can be initiated against the erring officer(s) in the High Court having territorial jurisdiction," it added.

The Court held that the petitioner had been arrested without following the procedure prescribed under Sections 80 and 81 Cr.P.C. and not produced before the Court of any Magistrate at Ranchi.

"The documents on the record suggest that the informant has been called upon to face enquiry by the concerned officer including the Deputy Commissioner. The police is having power of arrest and whether that power can be utilized arbitrarily that too in a case of person, who is a journalist, shall be considered later on after filing of the affidavit of other side," the judgment added.

It said that the question of initiating contempt proceedings against the Deputy Superintendent of Police, Dhanbad and Sub Inspector-cum-Investigating of the present case will be considered after filing of State's affidavit.

Case Title: Baby Chatterjee v. The State of Jharkhand & Ors

Citation: 2022 LiveLaw (Jha) 69

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