Categories: Other Courts

POLICE OFFICIALS TO FACE ACTION IF ARREST PROCEDURE UNDER SECTION 41A CRPC & ARNESH KUMAR GUIDELINES ARE VIOLATED: TELANGANA HC

In a remarkable, refreshing, rational and robust judgment titled V Bharath Kumar vs The State of Telangana in Criminal Petition No. 8108 of 2021 delivered as recently as on November 15, 2021, the Telangana High Court has granted liberty to an accused to initiate proceedings against police officials if the procedure for arrest under Section 41A CrPC is violated. The Court reminded that the police are duty bound to follow the guidelines laid down by the Supreme Court in the ‘Arnesh Kumar’ case for arrest. It must be mentioned here that a single-Judge Bench of Hon’ble Smt Justice Lalita Kanneganti was hearing the anticipatory bail application filed by the head of an education/job consultancy firm in Secunderabad, primarily accused of cheating under Section 420 IPC.

To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Hon’ble Smt Justice Lalitha Kanneganti sets the ball rolling by first and foremost putting forth in para 1 that, “This Criminal Petition under Section 438 Cr.P.C. is filed by the petitioner / accused seeking anticipatory bail in Crime No. 233 of 2021 of SHO, Tukaramgate Police Station, registered 1or the offences punishable under Sections 406, 420, 504 and 506 IPC.”

While elaborating on the prosecution’s allegations, the Bench then states in para 3 that, “The allegations of the prosecution, in briet, are as under: On 18. 10.2021 at 15.30 hours, the police received complaint from one Sri B. Kashi Ram stating that one person by name V. Bharath Kumar, Director of Eagle Immigrations and Eegle Expert Immigrations Private Limited, East Maredpally, promised that he would provide job abroad to the complainant and asked to pay Rs. 10,00,000/-. Between 08.03.2021 and 04.04.2021, the complainant paid Rs.8,00,000/- through cheque and Rs.2,00,000/- by way of cash. On 05.05.2021, even after repeated requests, he was not provided with job. Further, when petitioner is making efforts to leave the country, present report is lodged. Basing on the same, the subject crime is registered.”

As we see, the Bench then points out in para 4 that, “Learned counsel for the petitioner Sri Karam Chendu Komireddy submits that though the punishment prescribed for the aforesaid offences is below seven years and the police, having issued notice under Section 41-A Cr.P.C., still are not following procedure contemplated under the said section and threatening the petitioner to enter into compromise with the complainant.”

While continuing in the same vein, the Bench then brings out in para 5 that, “In fact, challenging the high-handed action of the respondent police, the petitioner filed W.P. No. 27774 of 2021 and this Hon’ble Court was pleased to pass interim order dated 08.11.2021, which reads as under:

“Main grievance of petitioner is that police are not following procedure contemplated under Section 41-A Cr.P.C. and guidelines issued by the Supreme Court in Arnesh Kumar v. State of Bihar (AIR 2014 SC 2756). Petitioner is sole accused in FIR No. 233 of 2021, P.S. Tukaramgate registered for the offences under Sections 406, 420, 504 and 506 IPC.

Learned counsel for the petitioner submits that all the offences are bailable with less than seven years imprisonment and mandatory procedure under Section 41-A Cr.P.C. is required to be followed.

Notice before admission.

Personal notice is permitted to Respondent No.5.

Learned Assistant Government Pleader for Home to get instructions by the next date of hearing.

Post on 15.11.2021.

In case petitioner is required for the purpose of investigation, Respondent No.4 – Station House Officer, Tukaramgate Police Station is directed to follow procedure under Section 41-A Cr.P.C. and guidelines issued by the Supreme Court in Arnesh Kumar’s case.””

Furthermore, the Bench then also discloses in para 6 that, “Learned counsel for the petitioner submits that in spite of the above order passed by this Court, the respondent – police are pressurizing the petitioner to enter into compromise with the complainant and threatening to arrest him.”

Needless to say, the Bench then clearly states in para 7 that, “When the punishment for the aforesaid offences is below seven years, the respondent – police are bound to follow the procedure contemplated under Section 41-A Cr.P.C. and als0 the guidelines issued by the Hon’ble Apex Court in Arnesh Kumar v. State of Bihar, Further, the Hon’ble Apex Court has also provided remedies to the aggrieved party, if the provisions under Section 41-A Cr. P.C. are not followed by the police officers as well as the judicial officers.”

Of course, the Bench then clearly specifies in para 8 that, “If the petitioner is aggrieved by the action of the police in not following the procedure contemplated under Section 41-A Cr.P.C. and resorting to other means and measures by threatening him to compromise the matter, petitioner is at liberty to initiate appropriate proceedings against the officers concerned. It is further directed that having issued notice under Section 41-A Cr.P.C., the police are bound to follow the procedure and the guidelines issued by the Hon’ble Apex Court.”

Simply put, the Bench then also clearly, cogently and convincingly holds in para 9 that, “Hence, police are directed to adhere to the procedure Contemplated under Section 41-A Cr.P.C. and also the guidelines issued by the Apex Court in Arnesh Kumar’s case (supra) scrupulously. Any deviation in this regard will be viewed seriously. After passing this order, learned counsel for the petitioner requested for a copy thereof on the same day, else police may take coercive steps against the petitioner.”

While underscoring the importance of technology in imparting justice, the Bench then observes in para 10 that, “The bail petitions are heard by the Court as expeditiously as possible and orders are also passed immediately. The difficulty and the delay, however, is in dispatching the certified copies of the orders. Once the signed orders leave the Chambers of the Judge and by the time the advocate/client receives the certified copy it has to pass through several phases of Scrutiny and approval. In some cases, it may take days together This for dispatching the order due to invariable reasons. procedure of dispatching the order copies has been followed by the Courts from a very long time. Justice Krishna lyer once said that ‘our judicial system is 200 years behind when compared to developed countries’. In this advanced age of technology, we should make use of technology in improving the administration of justice. It will enhance the efficiency and we will be able to achieve the goal of giving timely justice to the needy.”

Quite significantly, the Bench then holds in para 11 that, “Protection of personal liberty of an individual is, undeniably, a constitutional duty of this Court. Our criminal justice system always gives paramount consideration to the protection of the rights of the accused. Article 21 of the Constitution of India mandates that the personal liberty of an accused can be curtailed only after strict compliance with the procedure established by law. Sections 438 and 439 Cr.P.C. ensure that the accused is not deprived of his personal liberty arbitrarily. The Hon’ble Apex Court in catena of cases held that ‘speedy adjudication process is one of the main facets that constitute the essence of access to justice and without it, access to Justice as a constitutional value will be a mere illusion’. Denial of this right undermines public confidence in the justice-delivery system. It is also a settled law that the right of an accused to have his bail application heard by the Court within a reasonable time has been entrenched as a constitutional liberty. At the same time, disposal of bail application without furnishing the order copy within a reasonable time will not place the accused in a better position. Mere emphasizing that an accused has an indefeasible fundamental right to bail itself is not sufficient without furnishing the copy of the order.”

Truth be told, the Bench then also rightly added in para 12 that, “This is high time, the Courts shall address these issues with a progressive approach by adopting the innovative methods.”

Adding more to it, the Bench then also hastened to add in para 13 that, “The Hon’ble Apex Court has expressed the concern that serious deficiency in the criminal judicial system is the delay in communication of orders, which we need to address on war footing, because it touches upon the human liberty of under-trials convicts. The Hon’ble Apex Court also introduced a mechanism for speedy communication of bail orders to prisons under an electronic transmission channel known as FASTER (Fast and Secured Transmission of Electronic Records).”

What’s more, the Bench then holds in para 14 that, “Hence, this Court feels that an alternative mechanism shall be evolved to address the plight of these under-trial prisoners / accused.

(a) Parties Advocates shall download the order copy from the High Court’s Website along with case details which are available in the case status information.

(b) While filing the memo on behalf of accused for furnishing sureties, the Advocate shall state in the Memo that he / she has downloaded the order copy from the High Court’s Website. The Administrative Officer Chief Ministerial Officer of the Court concerned shall verify the order from the High Court’s Website and make an endorsement to that effect and then shall place the same before the Court.

(d) The Presiding Officer, on the same day, shall dispose of the same and dispatch the release order to the jail authorities concerned forthwith through e-mail or any other electronic mode.

(e) In cases of anticipatory bail, the burden to verify the authenticity of the copy is on the Station House Officer concerned and if necessary, he should obtain necessary instructions from the Public Prosecutor’s Office and complete the process on the same day expeditiously as per law.

(f) The jail authorities on receipt of the release order shall release the accused forthwith.

(g) Registrar (Judicial) shall communicate copy of this order to

(1) The Principal Secretary for Home Affairs, State of Telangana, (2) The Director General of Police, State of Telangana, (3) The Director of Prosecution, who, in turn, shall sensitize the police officers Station House Officers / Public Prosecutors and ensure implementation of this order.

(h) Registrar (Judicial) shall communicate copy of this order to all the Principal District Judges in the State, who, in turn, shall sensitize all the Presiding Officers and ensure implementation of this order.

(i) Registrar (Judicial) is further directed to circulate the copy of this order to all the Bar Associations in the State through the Principal District Judges, so that they can effectively address their client’s cause.

(j) Registrar (Judicial) shall also issue a separate notification in this regard and the same shall be displayed in the High Court’s Website.

(k) These directions will apply to all bail application including bails in Criminal Revision as well as Criminal Appeals.

This order shall come into force from 22.11.2021.”

It is worth noting that the Bench then directs in para 15 that, “The Judicial Officers in the State shall bring to the notice of the Registrar (Judicial) the difficulties/ hitches, if any in implementing the directions of this Court. In case of anticipatory bails, the police officials shall bring to the notice of the Public Prosecutor, High Court about their difficulties in implementing the orders of this Court and the Registrar (Judicial) and learned Public Prosecutor shall place the same before this Court by the next date of hearing ie. 22.12.2021.”

Finally, the Bench then holds in para 17 that, “Inspite of all odds, determined efforts are required for achieving the goal. Ways and means have to be found out by constant thinking and monitoring. It is the responsibility of all the stakeholders to uphold the public confidence in the justice delivery system by giving timely justice which includes furnishing the copies of orders/judgments.”

In conclusion, we thus see how the Telangana High Court in this case has dispensed with the requirement of certified copies of bail orders and held that e-copies will be accepted from 22nd November, 2021. The Court also made it clear that the indefeasible right of an accused to bail, guaranteed by the Constitution, is not sufficient in itself as long as the bail orders cannot be furnished in a timely manner. The single-Judge Bench of Hon’ble Smt Justice Lalita Kanneganti also made it clear that police officials would have to face action if the arrest procedure under Section 41A CrPC and ‘Arnesh Kumar’ guidelines are violated. This will certainly help in ensuring that no one is arrested arbitrarily and the accused who gets bail would be released promptly on getting e-copies of bail order which is a very good step in ensuring that justice is delivered in time and even the accused is not made to wait for a long time once he gets the bail just because the bail order is not delivered in time!

The Telangana High Court has granted liberty to an accused to initiate proceedings against police officials if the procedure for arrest under Section 41A CrPC is violated.

Sanjeev Sirohi, Advocate

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