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Andhra Pradesh HC takes strict stand over non-compliance of guidelines in respect of CrPC 41A

Authorising detention should be taken with utmost Care and Caution, not in a routine manner: Andhra HC
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The Andhra Pradesh High Court has taken a strict stand over non-compliance of the guidelines in view of CRPC 41A, stated that the detention of accused should be authorised with utmost care, it ‘affects the liberty and freedom of the citizen’.

“The Magistrate must understand the power to authorize detention is a solemn function because it affects the liberty and freedom of the citizen. This duty has to be discharged with utmost care and caution, but not in a routine manner.”

The Single bench of Justice Lalitha Kanneganti observed that, the some police officials are still making ‘indiscriminate arrests’ without proper investigation.

“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 case, the petitioner (accused in the case), he was made accused under IPC sections following a social media post, which all the offences are punishable under 7 years. Police arrested the petitioner, a day after the registering the crime, and remanded to Judicial custody.

The learned counsel for the petitioner submitted that, the police has violated the guidelines issued by the Supreme Court in Arnesh Kumar v. State of Bihar in arresting the petitioner. He further submitted that petitioner was arrested without conducting any preliminary enquiry.

The bench reiterated the guidelines as in Arnesh Kumar case.

“In the light of the law laid down in Arnesh Kumar’s case, even though the punishment for the offence is below seven years, the discretion is with the police officer either to arrest the accused or to issue notice contemplated under Section 41-A.”

The bench added that, if the police officer ‘resorting to arrest’ it requries a check list with the relevant reason to arrest.

“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.”

It further states that, failure to comply with the directions will render departmental action against the police officer and the Magistrate.

“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.”

Justice Kanneganti also quoted in the order that, Justice Krishna Ayyar once said ‘who will police the police’.

“Hon’ble Justice Krishna Ayyar once said, ‘who will police the police‘ when the police are giving go-by to all guidelines while arresting the accused and producing for remand, the Magistrate shall not mechanically authorize the remand, but shall satisfy that there are sufficient grounds supported by material on which the accused need to be remanded.”

The bench also observed that, the reasons in the remand report are not according to the guidelines issued in the Arnesh Kumar case.

The bench invited the report from the Magistrate and also directed the Sub Inspector of Police, Guntur Urban a detailed affidavit, with regard to the compliance of the guidelines in Arnesh Kumar case.

Case : Jangala Sambasiva v. State of AP & Anr CRLP NO: 4854 of 2020 Order Dated : 28.10.2020

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