CRLP/15961/2014 of K.Manganuna, Vs The State of Telangana., on 30 December 2014

ORDER:

The petitioner, who is accused No.2 in Crime No.18 of2014 of Lingal Police Station, Mahabubnagar District, filed thepresent application under Section 438 Cr.P.C. seeking releasein the event of her arrest in connection with the above crimeregistered for the offences punishable under Sections 406, 409,420 r/w 34 IPC.

Though the learned counsel for the petitioner filed thepresent petition seeking anticipatory bail in Crime No.18 of2014, he restricts his prayer seeking a direction to theInvestigating agency to follow the conditions stipulated inSection 41 CrPC.

Heard learned Public Prosecutor appearing for therespondent-State.

Section 41 Cr.P.C. reads as under:

When police may arrest without warrant.

(1) Any police officer may without an order from aMagistrate and without a warrant, arrest anyperson –Magistrate and without a warrant, arrest anyperson –

(a) who commits, in the presence of a policeofficer, a cognizance offence;officer, a cognizance offence; (b)against whom a reasonable complaint hasbeen made, or credible information has beenreceived, or a reasonable suspicion existsthan he has committed a cognizable offencepunishable with imprisonment for a term whichmay be less than seven years or which mayextend to seven years whether with or withoutbeen made, or credible information has beenreceived, or a reasonable suspicion existsthan he has committed a cognizable offencepunishable with imprisonment for a term whichmay be less than seven years or which mayextend to seven years whether with or without fine, if the following conditions are satisfied,namely:-

(i) the police officer has reason tobelieve on the basis of suchcomplaint, information, or suspicionthat such person has committed thesaid offence;believe on the basis of suchcomplaint, information, or suspicionthat such person has committed thesaid offence;

(ii) the police officer is satisfied thatsuch arrest is necessary-such arrest is necessary- a)to prevent such person from committingany further offence; orany further offence; or b)for proper investigation of the offence;oror

c)to prevent such person from causingthe evidence of the offence to disappearor tampering with such evidence in anymanner; orthe evidence of the offence to disappearor tampering with such evidence in anymanner; or d)to prevent such person from makingany inducement, threat or promise toany person acquainted with the facts ofthe case so as to dissuade him fromdisclosing such facts to the Court or tothe police officer; orany inducement, threat or promise toany person acquainted with the facts ofthe case so as to dissuade him fromdisclosing such facts to the Court or tothe police officer; or e)as unless such person is arrested, hispresence in the Court wheneverrequired cannot be ensured,presence in the Court wheneverrequired cannot be ensured, and the police officer shall record whilemaking such arrest, his reasons in writing;(Provided that a police officer shall, in allcases where the arrest of a person is notrequired under the provisions of this sub-section, record the reasons in writing for notmaking the arrest.)

I n Arnesh Kumar v. State of Bihar and another (Crl.Appeal No.1277 of 2014), the Apex Court held as under:

1) All the State Governments to instruct its policeofficers not to automatically arrest when a caseofficers not to automatically arrest when a case under Section 498-A of the IPC is registeredbut to satisfy themselves about the necessityfor arrest under the parameters laid downabove flowing from Section 41 Cr.P.C.

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

3) The police officer shall forward the check listduly filed and furnish the reasons andmaterials which necessitated the arrest, whileforwarding/producing the accused before theMagistrate for further detention;duly filed and furnish the reasons andmaterials which necessitated the arrest, whileforwarding/producing the accused before theMagistrate for further detention;

4) The Magistrate while authorizing detention ofthe accused shall peruse the report furnishedby the police officer in terms aforesaid and onlyafter recording its satisfaction, the Magistratewill authorize detention;the accused shall peruse the report furnishedby the police officer in terms aforesaid and onlyafter recording its satisfaction, the Magistratewill authorize detention;

5) The decision not to arrest an accused, beforwarded to the Magistrate within two weeksfrom the date of the institution of the case witha copy to the Magistrate which may beextended by the Superintendent of police ofthe district for the reasons to be recorded inwriting;forwarded to the Magistrate within two weeksfrom the date of the institution of the case witha copy to the Magistrate which may beextended by the Superintendent of police ofthe district for the reasons to be recorded inwriting;

6) Notice of appearance in terms of Section 41 Aof Cr.P.C. be served on the accused within twoweeks from the date of institution of the case,which may be extended by the Superintendentof Police of the District for the reasons to berecorded in writing;of Cr.P.C. be served on the accused within twoweeks from the date of institution of the case,which may be extended by the Superintendentof Police of the District for the reasons to berecorded in writing;

7) Failure to comply with the directions aforesaidshall apart from rendering the police officersconcerned liable for departmental action, theyshall also be liable to be punished forcontempt of Court to be instituted before Highshall apart from rendering the police officersconcerned liable for departmental action, theyshall also be liable to be punished forcontempt of Court to be instituted before High Court having territorial jurisdiction.

8) Authorising detention without recordingreasons as aforesaid by the Magistrateconcerned shall be liable for departmentalaction by the appropriate high court.

The Apex Court also held that “ the directionsaforesaid shall not only apply to the cases underSection 498-A of the IPC or Section 4 of theDowry Prohibition Act, the case in hand, but alsosuch cases were offence is punishable withimprisonment for a term which may be less thanseven years or which may extend to seven years;whether with or without fine.”

From the above it is clear that the police officer, beforearresting any person, has to be satisfied that such an arrest isnecessary in terms of clauses (a) to (e) of Section 41(1)(b)(ii)Cr.P.C. and he has to record reasons while making such arrest. For the aforesaid reasons and having regard to the nature ofallegations made, it is ordered that the investigating officer whileexercising discretion, whether or not to arrest the petitionerherein, under Section 41 Cr.P.C. shall scrupulously follow theconditions stipulated therein and also the judgment of the ApexCourt,before taking any coercive steps against the petitioner.

With the above direction, the Criminal Petition isdisposed of.

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C.PRAVEEN KUMAR,J

30[th] December, 2014 cbs

HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

cbs

CRIMINAL PETITION No.15961 of 2014

30[th] December, 2014