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Police Can Not Violate the Supreme Court Guidelines On Arrest

In a case where the High court sent an IPS officer and three police officers to jail for the violation of Supreme court guidelines on the arrest. In this case, the officers had violated the direction of the court for issuing a notice of appearance in terms of Section 41 of the Criminal Procedure Code to the accused within two weeks from the date of institution of the case as per the directions of the Hon’ble court. 

In the case Arnesh Kumar vs the State of Bihar, the Supreme court made a judgement to grant a provision for bail to Arnesh Kumar who had applied for anticipatory bail, he was accused under the section 4 of the dowry prohibition act by the Supreme Court under his judgement stated the provisional bail to the accused on certain grounds and the court also discussed those aspects which were not dealt earlier in section 498A of Indian Penal Code and the woman are misusing that section. 

Section 498-A of the Indian Penal Code is a cognizable and non-bailable offence. It has a prime object to fight against the harassment and cruelty faced by women but some are misusing this section as a weapon, not as a shield under which many innocent husbands and their families are troubling. 

So the changes which are made by the Supreme Court in this case related to arrest is that all the state government should instruct its Police officer that all the complaints made under section 498 A are not automatically arrested a person, the necessity of arrest falls under section 41 of Criminal Procedure Code which state the notice by a police officer under Criminal Procedure Code is mandatory and the arrest has been made only when the accused falls under the section 41 of criminal procedure code clause. 

In the High Court of Telangana, the 1st petitioner was married to the complainant by way of registered marriage to both the 1st petitioner and the complainant. The marriage did not work out and they had been living separately. The 1st petitioner was shifted to Thailand with his daughter and his mother who is 2nd petitioner when she came back to India, the complainant made a conspiracy and filed a complaint against both the petitioner and his widow sister in law. The same was registered under Section 406(Criminal Breach of Trust), 420( Cheating) and 120-B (Criminal Conspiracy) of the Indian Penal Code. No notice was issued to the petitioners or to the widowed sister in law. Upon becoming aware of the FIR, the petitioners filed a criminal petition for quashing the same and a stay was granted against all of the charges imposed against them. The officer was aware of the whereabouts of the petitioner in Thailand but no notice was issued to them for arrest. And the officer filed a charge sheet against the petitioner immediately in front of the magistrate and didn’t follow the guidelines of the Supreme court on the arrest given under section 41 of the criminal procedure code and stated in the case of Arnesh Kumar vs the State of Bihar.

So in this recent case, the Telangana High court has directed the police to comply with the requirement of issue of section 41A notice under the criminal procedure code as the punishment prescribed for the offences alleged was up to seven years.

While the court noted the standing order issued by the Delhi Police in regard to the case of Criminal Writ Petition by Abhyananda Sharma, for the pendency of the bail case from by writ petitioner regarding guidelines for arrest, keeping in view Section 41A of the criminal procedure code which lays down the guidelines for arrest where the imprisonment is less than or extends to 7 years in matrimonial matters, arrest of a senior citizen in family matters etc, in incorporating the judgements and observation of the Supreme Court in Joginder Kumar’s case, D.K. Basu’s case and Arnesh Kumar’s case and the intent of section 41A of the Criminal Procedure Code.

Vanshika Jaiswal
Vanshika Jaiswal

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