IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.3536 of 2024
Arising Out of PS. Case No.-175 Year-2022 Thana- PALANWA District- East Champaran
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Naushad Ansari S/O Manzoor Mian R/O Village- Pakhnahiya, P.S- Palanwa,
Dist.- East Champaran.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Md. Waliver Rahman, Adv
Mr. Shakil Ahmad Khan, Adv
For the Opposite Party/s : Mr. Chandra Bhushan Prasad, APP
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CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL ORDER
2 13-02-2024 1. Heard learned counsel for the petitioner, Mr. Shakil
Ahmad Khan, and learned A.P.P. for the State, Mr. Chandra
Bhushan Prasad.
2. The petitioner apprehends his arrest in connection
with Palanawa P.S. Case No. 175 of 2022 registered for the
offences punishable under Sections 341, 323, 324, 325, 448,
379, 504, 506, and 354B of the Indian Penal Code.
3. The learned APP, Mr. Chandra Bhushan Prasad, at
the outset, submits that the offences for which Palanawa P.S
Case No. 175 of 2022 has been instituted against the petitioner
carries punishment of less than 7 years. It is further submitted
that Hon'ble Supreme Court in the case of Arnesh Kumar vs.
the State of Bihar and another reported in (2014) 8 SCC 273
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has laid down the guidelines that how the police and the learned
Magistrate have to act in respect of offences, which carry
punishment of 7 years or less than 7 years.
4. The learned APP next submits that offences in
India are categorized by the Cr.P.C as cognizable and non-
cognizable, bailable and non-bailable, for a cognizable offence,
the police registers an FIR and arrests the accused without a
warrant, if offence is bailable, the police must release the
accused upon a reasonable security, if the offence is non-
bailable, only court can order release on bail. It is next
submitted that police high-handedness in making arrests and a
sluggish magistracy in remanding accused to judicial custody
have been a source of concern to the Hon'ble Supreme Court.
The Hon'ble Supreme Court in the case of Joginder Kumar vs.
the State of UP and others reported in (1994) 4 SCC 260
emphasized that simply because the police have the power to
make arrest does not mean that an arrest should be made rather
the power of arrest should be exercised only as a necessity given
the paramountcy of liberty in our constitutional scheme. Further
the Hon'ble Supreme Court in the case of D.K. Basu vs. State of
West Bengal reported in (1997) 1 SCC 416 issued a continuous
mandamus on the mode and manner of arrest.
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5. It is further submitted that the iteration of these
principles in judgment after judgment prompted various
amendments to Chapter 5 of the Cr.P.C, which deals with arrest
by police while investigating cognizable offences.
6. It is submitted that Section 41 of the Cr.P.C was
amended in the year 2009 to divide the non-bailable and
cognizable cases where police have the power to arrest into two
categories -- those carrying imprisonment of seven years or less
falls under Section 41(b) of the Cr.P.C to be dealt differently by
those carrying a term higher than seven years, which comes
under Section 41(b)(a).
7. As per Section 41(b) Cr.P.C, offences punishable
with seven years or less are not to automatically lead to arrest,
rather before making arrest in such a case, a police officer is
required to record his satisfaction that the arrest is necessary to
prevent the accused from absconding, repeating the offence or
tampering with the evidence, where an arrest is not necessary
for these reasons, it shall be recorded that the accused has not
been arrested and instead a notice under Section 41(a) of the
Cr.P.C shall be issued requiring the accused to appear before the
police and aid the investigation and it is obligatory for the
accused to comply with the notice, if there is compliance, there
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is statutory protection from arrest, if there is non-compliance, or
there are compelling reasons for arrest, the fact must be
recorded in writing and subject to orders passed by a court of
competent jurisdiction, an arrest be made. It is further submitted
that the statute emphasizes on recording of reasons so that the
Magistrate before whom the accused is produced after arrest,
examines the necessity of arrest and continued custody. The
Hon'ble Supreme Court in the case of Arnesh kumar vs. State
of Bihar, (2014) 8 SCC 273, held – before a Magistrate
authorizes detention under Section 167 Cr.P.C, he has to be first
satisfied that the arrest made is legal and in accordance with law
and all the constitutional rights of the person arrested are
satisfied. If the arrest effected by the police officer does not
satisfy the requirements of Section 41 of Cr.P.C, Magistrate is
duty bound not to authorize his further detention and release the
accused. In other words, when an accused is produced before
the Magistrate, the police officer effecting the arrest is required
to furnish to the Magistrate, the facts, the reasons and its
conclusion for arrest and the Magistrate in turn is to be satisfied
that condition precedent for arrest under Section 41 Cr.P.C has
been satisfied and it is only thereafter he will authorize the
detention of an accused. The Magistrate before authorizing
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detention will record its own satisfaction, may be in brief but the
satisfaction must reflect from its order. It shall never be based
upon the ipse dixit of the police officer, for example, in case the
police officer considers the arrest necessary to prevent such
person from committing any further offence or for proper
investigation of the case or for preventing an accused from
tampering with evidence or making inducement etc, the police
officer shall furnish to the Magistrate the facts, the reasons and
the materials on the basis of which the police officer had
reached its conclusion. Those shall be perused by the Magistrate
while authorizing the detention and only after recording its
satisfaction in writing that the Magistrate will authorize the
detention of the accused, when a suspect is arrested and
produced before a Magistrate for authorizing detention, the
Magistrate has to address the question whether specific reasons
have been recorded for arrest and if so, prima facie those
reasons are relevant and secondly a reasonable conclusion could
at all be reached by the police officer that one or the other
conditions stated above are attracted.
8. It is further submitted that with regard to Section
41 of the Cr.P.C the Hon'ble Supreme Court held that the
aforesaid provision -- makes it clear that in all cases where the
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arrest of a person is not required under Section 41(1) Cr.P.C, 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 the
notice, he shall not be arrested, unless for reasons to be
recorded, the police officer is of the opinion that arrest is
necessary.
9. The learned APP further submits that when an
accused is first produced before the learned Magistrate in
relation to offences carrying punishment of seven years or less,
must be released, if the preconditions of Section 41 of the Cr.P.C
are not met, i.e., the learned Magistrate has to apply his judicial
mind whether to remand or not to remand the accused to judicial
custody and will not be swayed by the claim of the police
officer arresting the accused. It is next submitted that recently
the Hon'ble Supreme Court in the case of Md. Asfak Alam vs.
the State of Jharkhand and another reported in 2023 Live Law
(SC) 583 set aside the order passed by the Hon'ble Jharkhand
High Court rejecting the anticipatory bail application of the
husband (Md. Asfak Alam) for reasons stated in the order and at
the same time directed all the courts ceased of proceeding to
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strictly follow the law laid down in Arnesh Kumar (supra) and
reiterated the direction contained therein as well as other
directions, which are as follows:-
“I.11.Our endeavour in this judgment is to ensure
that police officers do not arrest the accused
unnecessarily and Magistrate do not authorize detention
casually and mechanically. In order to, ensure what we
have observed above, we give the following directions:
11.1. All the State Governments to instruct its
police officers not to automatically arrest when a case
under Section 498-A IPC is registered but to satisfy
themselves about the necessity for arrest under the
parameters laid down above flowing from Section 41
CrPC;
11.2. All police officers be provided with a check
list containing specified sub-clauses under Section 41(1)
(b)(ii);
11.3. The police officer- shall forward the check
list duly filled and furnish the reasons and materials
which necessitated the arrest, while
forwarding/producing the accused before the Magistrate
for further detention;
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11.4. The Magistrate while authorizing detention
of the accused shall peruse the report furnished by the
police officer in terms aforesaid and only after recording
its satisfaction, the Magistrate will authorize detention;
11.5. The decision not to arrest an accused, be
forwarded to the Magistrate within two weeks from the
date of the institution of the case with a copy to the
Magistrate which may be extended by the Superintendent
of Police of the district for the reasons to be recorded in
writing;
11.6. Notice of appearance in terms of Section 41-
A CrPC be served on the accused within two weeks from
the date of institution of the case, which may be extended
by the Superintendent of Police of the district for the
reasons to be recorded in writing;
11.7. Failure to comply with the directions
aforesaid shall apart from rendering the police officers
concerned liable for departmental action, they shall also
be liable to be punished for contempt of court to be
instituted before the High Court having territorial
jurisdiction.
11.8. Authorizing detention without recording
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reasons as aforesaid by the Judicial Magistrate
concerned shall be liable for departmental action by the
appropriate High Court.
12. We hasten to add that the directions aforesaid
shall not only apply to the case under Section 498-A IPC
or Section 4 of the Dowry Prohibition Act, the case in
hand, but also such cases where offence is punishable
with imprisonment for a terms which may be less than
seven years or which may extend to seven years, whether
with or without fine."
II. The High Court shall frame the above
directions in the form of notifications and guidelines to be
followed by the Sessions courts and all other and
criminal courts dealing with various offences.
III. Likewise, the Director General of Police in all
States shall ensure that strict instructions in terms of
above directions are issued. Both the High Courts and the
DGP's of all States shall ensure that such guidelines and
Directives/Departmental Circulars are issued for
guidance of all lower courts and police authorities in
each State within eight weeks from today.
IV. Affidavits of compliance shall be filed before
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this court within ten weeks by all the states and High
Courts, though their Registrars.
10. The learned APP next submits that the Hon'ble
Patna High Court in compliance of the order passed in Md.
Asfak Alam vs. the State of Jharkhand (supra) issued Memo
No. 62973 dated 19.9.2023 wherein it was recorded that all the
courts under territorial jurisdiction of this court shall be required
to follow the law laid down in the case of Arnesh Kumar
versus the State of Bihar (supra) and the following direction
contained in the said decision:
11.1 "All the State Governments to instruct its
police officers not to automatically arrest when a case
under Section 498-A IPC is registered but to satisfy
themselves about the necessity for arrest under the
parameters laid down above flowing from Section 41
Cr.P.C.;
11.2 All police officers be provided with a check
list containing specified sub-clauses under Section 41 (1 )
(b)(ii);
11.3 The police officer shall forward the check list
duly filled and furnish the reasons and materials which
necessitated the arrest, while forwarding/producing the
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accused before the Magistrate for further detention;
11.4 The Magistrate while authorizing detention
of the accused shall peruse the report furnished by the
Police Officer in terms aforesaid and only after recording
its satisfaction, the Magistrate will authorize detention;
11.5 The decision not to arrest an accused, be
forwarded to the Magistrate within two weeks from the
date of the institution of the case with a copy to the
Magistrate which may be extended by the Superintendent
of Police of the district for the reasons to be recorded in
writing;
11.6 Notice of appearance in terms of Section 41-
A Cr.P.C. be served on the accused within two weeks from
the date of institution of the case, which may be extended
by the Superintendent of Police of the district for the
reasons to be recorded in writing;
11.7 Failure to comply with the directions
aforesaid shall apart from rendering the police officers
concerned liable for departmental action, they shall also
be liable to be punished for contempt of court to be
instituted before the High court having territorial
jurisdiction.
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11.8 Authorizing detention without recording
reasons as aforesaid by the Judicial Magistrate
concerned shall be liable for departmental action by the
appropriate High Court.
12. We hasten to add that directions aforesaid
shall not only apply to the cases under Section 498-A IPC
or Section 4 of the Dowry Prohibition Act, the cased in
hand, but also such cases where offence is punishable
with imprisonment for a terms which may be less than
seven years or which may extend to seven years, whether
with or without fine."
11. At this stage, the learned counsel for the petitioner
submits that despite such direction of the Hon'ble Supreme
Court as recorded hereinabove, the police mechanically are
making arrests in cases involving punishment of seven years or
less and the learned Magistrates in casual manner are remanding
the accused persons in judicial custody, which can well be
appreciated from the fact that this court is burdened with
anticipatory bail application with regard to offences carrying
punishment of seven years or less, the present application is one
of them.
12. After hearing the learned APP and the learned
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counsel for the petitioner, the present anticipatory bail
application is disposed of with a direction that the concerned
Superintendent of Police of every district and investigating
officers of the case shall forthwith comply with the direction of
the Hon'ble Supreme Court as contained in the case of Arnesh
Kumar (supra) and Md. Asfak Alam (supra).
13. It is made clear that if any breach of the direction
of the Hon'ble Supreme Court is brought to the notice of this
court, the police and the learned Magistrate shall be dealt in
terms of the Memo No. 62973 dated 19-9-2023 issued by this
Court under the signature of the learned Registrar General.
14. Let a copy of this order be sent to the DGP, Bihar,
Principal Secretary (Home), Government of Bihar and all the
learned District Judges for its onward communication to all the
Superintendents of Police, Investigating Officers and the learned
Magistrates.
15. The Court directs that the police and the learned
Magistrate shall completely adhere to the directions given by
the Hon'ble Supreme Court in the case of Arnesh Kumar
(supra) and Md. Asfak Alam (supra).
16. The Court for the present is not seeking any report
from the police or the learned District Judges with regard to
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compliance of the order of the Hon’ble Supreme Court, as
recorded in the Memo dated 19.09.2023 issued by the leanred
Registrar General of this Court, but in the event, if it is found
that anticipatory bail application with respect to offences
involving punishment of seven years and less is flooding the
court, in that event, in an appropriate case, report would be
called from the authorities and the learned District Judges and in
the event if it is found that lackadaisical approach has been
adopted at the end of the Police or the learned Magistrate, in
that event, proper action would be initiated, in terms of
paragraphs 11.7 and 11.8 of the Memo No. 62973 /AD (Rules)
dated 19.09.2023, issued by the learned Registrar General of
this Court.
(Satyavrat Verma, J)
SUMIT/-
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