Sub Inspector Was Unaware Of 'Arnesh Kumar' Guidelines: Police Commissioner Submits Before Kerala High Court

An interesting development transpired in the Kerala High Court recently when a Commissioner of Police communicated in his statement to the Court that a Sub Inspector of Police was oblivious of the principles laid down by the Supreme Court in Arnesh Kumar v. State of Bihar.

A Division Bench of Justice Alexander Thomas and Justice Shoba Annamma Eapen condemned the cavalier manner in which the Sub Inspector had responded to the contempt of court proceedings initiated against him for non-compliance with these guidelines. 

"It is also interesting to note that, in the penultimate paragraph of the said statement, the Commissioner of Police had stated that the alleged contemnor was unaware of the law declared by the Apex Court in Arnesh Kumar's case (supra)."

The Court was dealing with a contempt petition alleging flagrant violation of the directives issued by the Apex Court and the main issue was whether the Sub Inspector had issued Section 41A CrPC notice to the accused. 

False criminal proceedings were allegedly initiated by the respondent Sub Inspector against the petitioner based on her mother's complaint that she intentionally deserted her child at the mother's residence. The petitioners were later arrested by the SI without any notice or information of the reasons for their arrest.

They were later brought before a Magistrate for remand where the woman gave a statement clearly pointing out that she was being harassed by her 'so-called stepfather', the disclosure of which led to her mother filing the complaint. Nevertheless, the Magistrate remanded the petitioners.

When the matter was taken up initially, the Bench sought an explanation from a Judicial Magistrate for remanding an accused without satisfying if the arrest has been carried out in compliance with the principles laid down by the Supreme Court. The Court had also issued a contempt notice to the SI who carried out the arrest while condemning the lack of response from his side in the proceedings.

Thereafter, the respondent SI filed an affidavit but he did not mention if he had issued a Section 41A notice to the petitioners. The Court expressed its surprise at the 'cavalier' manner in which the respondent had sworn to an affidavit, particularly in a case where contempt proceedings were launched against him.

Although several opportunities had been given to the SI which were not utilised properly, the Court deemed it got to provide one more opportunity to explain these aspects and to file an additional affidavit on this crucial aspect.

Further, it was found that the Commissioner of Police who is not a party in the case had only been directed to file a statement on limited factual points of the case. However, he filed a statement stating many things beyond his brief and even making certain allegations against the petitioners which have also been raised by the respondent in his affidavit.

The Court observed that it was not for the Commissioner of Police to mention these allegations in his statement.

ADGP Gracious Kuriakose submitted that the Commissioner may be permitted to withdraw this statement and to file a fresh statement only on the matters he should have dealt with. This request was accepted by the Court. 

Advocate U. Jayakrishnan appeared for the petitioner and submitted that the admission made by the Commissioner in his current statement should be permitted to be used in this contempt proceedings. To this, the Bench responded that all options open to the parties could be resorted to by them in accordance with law.

The Court then found that according to the amended Juvenile Justice (Care and Protection of Children) Act, offences punishable with 3 years imprisonment and above but not more than 7 years are to be treated as non-cognizable. However, these amended provisions only come into force on such date as the Central Government may appoint by notification in the Official Gazette. It was found that no notification had been issued by the Centre to that effect so far.

Moving on, the Division Bench emphasised that the necessity to have mandatory compliance with Sec.41 of the Cr.P.C. has been reiterated repeatedly. 

In this case, the concerned Judicial Magistrate recited in its explanation that all the guidelines of the Apex Court have been duly complied with at the time of arrest and remand. However, it did not mention if the Magistrate ascertained from the investigating agency whether Section 41A notice was issued to the petitioners. 

Thus, an opportunity was given to the Magistrate to give a detailed explanation touching on all these aspects. It was clarified that if this opportunity is not availed, no further time will be granted and the Court will proceed to decide the matter on the basis of existing pleadings and materials on record.

The matter will be taken up next on 16.08.2022 for further consideration. 

Case Title: Gopika Jayan & Anr v. Faisal M.A

Citation: 2022 LiveLaw (Ker) 427

Click Here To Read/Download The Order