In Re Applicant v. Chandan Kumar, Investigating Officer Opposite Party.

1. Heard Sri. Abhishek Mishra, learned counsel for the contemnor and Sri. Sudhir Mehrotra, learned counsel for the High Court.

2. The brief facts of the case is that an application under Section- 167 Cr.P.C. was moved before the Additional Chief Judicial Magistrate-III, Court No.-15, Shahjahanpur by Investigating Officer, Shri Chandan Kumar, seeking 14 days judicial remand of accused Sohail @ Bablu under Sections-353, 504, 506 IPC arising from Case Crime No. 575 of 2021, Police Staion-Kanth, District-Shahjahanpur, which was rejected by the order dated 06.09.2021, in compliance of the directions of the Supreme Court rendered in Arnesh Kumar v. State of Bihar 2014 (6) S.C.J. 219.

3. Upon perusal of the record produced by the Investigating Officer, it was found that in the aforesaid Sections maximum punishment is not more than 7 years, as such, Section- 41(1)(b) Cr.P.C. would apply and before arresting the accused notice is required to be served upon him by the Investigating Officer. However, the mandate of Section 41A was not complied by the Investigating Officer, further, he has to furnish reasons for arresting the accused. The learned Magistrate has further noted that the Investigating Officer did not follow the directions in Arnesh Kumar (supra). In view thereof, the learned Magistrate refused to grant 14 days judicial remand of the accused consequently order was passed that the accused be released on furnishing surety of Rs. 50,000 on certain conditions. The learned Magistrate, thereafter, made contempt reference against Sri. Chandan Kumar, Investigating Officer, noting therein that the opposite party, herein, did not follow the direction of Supreme Court rendered in Arnesh Kumar (supra), therefore, the Investigating Officer is liable to be punished under the Contempt of Court Act to be instituted before the High Court.

4. The contempt reference made by the Presiding Officer for initiating criminal contempt proceedings against Sri. Chandan Kumar, Investigating Officer was placed before Hon'ble the Chief Justice, and on his direction vide order on 17.11.2021, the matter was placed before the Administrative Judge. Administrative Judge vide communication dated 01.12.2021, addressed to the Hon'ble the Chief Justice, opined:

“In my opinion, disobedience to the order of the Apex Court constitutes criminal contempt.

Submitted for appropriate orders.”

5. Thereafter, the present proceeding was initiated against the Investigating Officer calling upon him to show cause vide order dated 11.07.2022 as to why charge may not be framed against him as prima facie allegation against the opposite party was made out, fixing 21.07.2022.

6. Pursuant to the order, contemnor appeared on the date fixed and filed affidavit dated 21.07.2022, furnishing explanation and tendering unconditional apology. Against the comtemnor following charge came to be framed which reads thus:

“Pursuant to order dated 11.07.2022, the contemnor (Sri. Chandan Kumar, Investigating Officer) is present and affidavit has been filed.

On perusal of the affidavit, we are, prima facie, convinced that the mandate contained in paragraph 14 sub para (7) and (8) passed in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 : AIR 2014 SC 2756, has not been complied. Sub paras (7) and (8) are extracted:

“(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 High Court having territorial jurisdiction.

(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.”

Accordingly, following charge is framed against the contemnor:

“1. You Shri produced the accused before the court seeking remand of 14 days in Case Crime No. 575 of 2021, under sections 353, 504, 506 I.P.C.

2. You neither served notice upon the accused nor furnished reasons for arresting the accused as per section 41(1)(b) Cr.P.C. since the indictment against the accused entailed not more than 7 years of maximum sentence.

3. You did not follow the guidelines of Hon'ble Apex Court in Arnesh v. State of Bihar, 2014 (6) SCJ page 219 which constitutes disobedience to the order of Apex Court.”

The contemnor/opposite party is directed to file his response, if any, on or before the next date.

Rule for contempt need not issue as the contemnor is present. The copy of the order shall be handed over to the opposite party who shall submit his reply within ten days from date.

List on 04.08.2022.”

7. Pursuant to order dated 21.07.2022, contemnor is present today and filed affidavit dated 04.08.2022 in reply to the charge. The contemnor has furnished the following explanations which reads thus:

“4. It is further submitted that, since the issue involved was from two religious group and the Principal Richa Chaudhary has stated that, the accused Sohail is continuously threatening her as such, just to maintain the local condition, the accused was arrested and the same is being endorsed in the case diary, already filed along with affidavit, filed earlier.

5. That in reply to the 2 charge, it is most humbly submitted that, the deponent has served the notice to the accused but even if any shortcoming is being found against the deponent, the deponent is seeking unconditional apology with his folded hands.

6. That in reply to the 3 charge, it is most humbly submitted that the deponent to his best effort had tried to follow all the staturory provision under the statute and further had followed the princeples prescribe by Hon'ble Apex Court in the case of Arnesh Kumar. But in any case if any shortcoming is being found by learned magistrate, the same was never deliberated and was only human mistakes and deponent/opposite party seeks unconditional apology with his folded hands before this Hon'ble Court with most humble request and prayer that the shortcoming if any which is being found by the learned magistrate will never be repeated ever again throughout his career.”

8. Further, in para 7 and 8, contemnor has tendered unconditional apology which reads thus:

“7. That deponent/opposite party is a government servant and a law abiding employee and having highest regards to the might of the institution and he cannot even imagine even in his dreams to flout or violate the orders, directions and judgments of any court, forum and even quasi judicial authority; that even any remotest unwilful action being committed by the deponent he is tendering unconditional apology before the Hon'ble Court with the folded hands and this Hon'ble Court may kindly be pleased to consider the unconditional apology of the deponent with magnanimity.

8. that the deponent is a subordinate employee and he cannot imagine even in his dreams to violate the order of the Hon'ble Courts and any inconvenience caused in the administration of justice to this Hon'ble Court due to his conduct he is tendering unconditional apology and this Hon'ble Court may be pleased to discharge the deponent from any adverse direction.”

9. On specific query, the contemnor has placed reliance upon his earlier affidavit dated 05.05.2022 bringing on record the prescribed format under Section- 41(1)(b)(ii), wherein, the compelling reasons for arrest of the accused is assigned; which is extracted:

10. Sri. Mehrotra has invited our attention to the notice dated 06.09.2021, issued to the accused under Section - 41(A), wherein, following conditions on the accused was imposed to comply for not arresting him. The conditions reads thus:

11. Sri. Mehrotra submits that any accused would readily accept and comply the conditions, further, there is no material to show that the apprehension expressed by the contemnor to arrest the accused is justified. The I.O. mechanically has assigned the reason to arrest the accused to by-pass the law.

12. To consider the above issue, it is necessary to extract Section 41-A Cr.P.C. It reads as follows:

“Notice of appearance before police officer —

(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.”

13. Thus Section 41-A Cr.P.C. shows that it was mandatory for the police officer to issue a notice directing the accused to appear before him in all cases where the arrest of the person is not required under the provisions of Section 41(1) Cr.P.C. and it was a basic postulate of natural justice.

14. The Hon'ble Supreme Court in Arnesh Kumar (supra), while considering the provision under Section 41-A Cr.P.C. inter alia held that:

“Aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, 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 notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.

We are of the opinion that if the provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued.”

“Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:

(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

(4) The Magistrate while authorising 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 authorise detention;

(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;

(6) Notice of appearance in terms of Section 41(A) of Cr.PC 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;

(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 High Court having territorial jurisdiction.

(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.”

15. The crux of the guidelines in Arnesh Kumar (supra) is to ensure that police officers do not unnecessarily arrest any person and the Magistrates do not mechanically remand any person. The guidelines No. 1 to 3 are stipulated to avoid unnecessary arrests. Guideline No. 4 is stipulated against any mechanical remand. Guideline No. 5 stipulates that the decision of the police officer not to arrest must be taken and communicated to the Magistrate within 14 days, unless time is extended by the Superintendent of Police for the reasons to be recorded in writing. Guideline No. 6 stipulates that notice of appearance under Section 41-A Cr.P.C. to be given to the accused within two weeks of the institution of the case unless extended. Guideline No. 7 stipulates consequences of contempt for a police officer for violating the above guidelines and Guideline No. 8 stipulates consequences of Departmental action against the Magistrate authorizing remand without reasons. As per the guideline No. 6, violation of which exposes for contempt as per Guideline No. 7.

16. On specific query, learned counsel for the contemnor submits that since the accused declined to accept the conditions of the notice, he was taken into the custody. However, on specific query, no explanation or material, either entry in the diary or otherwise has been placed on record to show that in not arresting the accused, communal tension would flare up between two communities. The conditions imposed in the notice are not such that any accused would decline to accept and comply. The apprehension that the accused would repeat the offence is also not forthcoming. On a careful perusal of the notice of 06.09.2021 under Section-41(A) reflects that the accused has signed it, meaning thereby, it was served upon him. It would follow that the accused has accepted the conditions imposed upon him for not arresting him. The notice is a printed format, the date and time of appearance of the accused before the Investigating Officer has been left blank. The entry of the service of notice is recorded in the G.D. No.- 62, dated 06.09.2021 at 23 : 00 hrs. Thereafter, in compliance of Section-4(1)(b)(ii) Cr.P.C., the reason assigned to arrest the accused is noted in column 7 & 9, recording that:

(i) accused refused/declined to comply the terms and conditions of the notice under Section-41(A) dated 06.09.2021;

(ii) the matter pertains to a lady restraining her in performing public duty; since the matter involves two rival communities, may adversely affect the communal harmony.

(The relevant portion has already been extracted earlier.)

17. The reason for arrest failed to inspire confidence with the Learned Magistrate. Before this Court the contemnor miserably failed to justify the arrest without an order of the Magistrate. It appears that taking advantage that the accused belongs to a different community, comtemnor mechanically, without reasons to believe, made an entry in the G.D. that accused failed to comply the conditions of the notice to justify the arrest. The conduct of the contemnor being wilful and deliberate to defy the authority of law by assigning non existing reason. It is established form the material brought on record that it is a case where the contemnor to bypass the mandate of Arnesh Kumar (supra), made mechanical entry in the diary and mechanically assigned reason contained in Section-41 Cr.P.C. for effecting arrest of the accused. Such action and conduct of mechanically making entry was apprehended by the Supreme Court in Arnesh Kumar (supra) and was directed to prevent it to avoid unnecessary arrest.

18. The contemnor for arresting the accused furnished the following explanation. Para-6 & 7 of affidavit dated 21.07.2022 is extracted:

“6. That the F.I.R. dated 03.09.2021 was being registered in order to comply with the directions, of higher authorities when certain incident took place in the school against a lady working there and also because of the agitation took place by two groups during the aforesaid period and also to maintain the cordial atmosphere of the society, as there was apprehension of dispute between two groups of different religion.

7. That furthermore the deponent/opposite party had duly served notice under Section-41(A) Cr.P.C. as recorded in General Diary, to the accused but he had immediately denied to accept the terms and condition mentioned in the aforesaid notice and when the condition as mentioned in the aforesaid notice has not been compiled by the accused and further the practical situation of the society were going beyond the control the deponent/opposite party had prepared notice under Section-41(1)(b)(ii) and prepared checklist accordingly and after getting information from the Mukhbir had caught the accused.”

19. The paragraph has been sworn on personal knowledge; there is no G.D. entry to that effect brought on record. The F.I.R. was registered on 03.06.2021 on the direction of higher officials. It appears that the thana wan not even aware of the incident or not inclined to lodge the FIR. The demonstrations and communal harmony being breached is not supported from the G.D. entry or any other material. Admittedly, the accused had accepted the notice under Section-41(A), on 06.09.2021, i.e., three days after the alleged incident. In that event, the breach of the conditions of the notice, and/or it's nature, is not explained. The approach of the contemnor has been casual, thereby, imposing himself over and above the law. The contemnor being a member of the disciplined force is bound to comply the mandate of law, breach thereof would entail civil and criminal consequence. The apology tendered is qualified and guarded to escape the proceedings.

20. We have considered the rival submissions of the learned counsel for the parties and perused the material placed on record.

21. For the reasons assigned, herein above, contemnor is held guilty of the charge. Applicant is put to notice to address on the quantum of punishment/sentence.

22. On request of the learned counsel for the parties, list this case on 17.08.2022.