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2024 (7) TMI 1590 - HC - Indian LawsMaintainability of petition - availability of alternative remedy - Legality of arrest of the Petitioner at the hand of the Respondent - gross violation of the provisions of Section 41A of the Code of Criminal Procedure - HELD THAT - This Court is of the opinion that the petitioner herein had raised an objection regarding non-compliance of Section 41A of Cr.P.C. when his police custody remand had been sought by the State and the same was dealt with and rejected by the learned Magistrate vide a detailed order dated 19.05.2024. Since a separate application in this regard had also been filed by the petitioner the same was rejected by the learned Magistrate on the ground that the grounds raised in the said i.e. non- compliance of Section 41A of Cr.P.C. have already been dealt with by the learned Magistrate in his order dated 19.05.2024 and therefore the same had become infructuous. It is true that the petitioner herein has not challenged the dismissal of the abovesaid application by the learned Magistrate which he should have challenged before the learned Sessions Court as per the provisions of law before approaching this Court. However this Court is also of the opinion that it is not the non-compliance of Section 41A of Cr.P.C. alone which has been challenged before this Court but also the manner in which he was arrested the malafide of arrest and breach of his fundamental rights. Maintainability of a writ petition in light of availability of alternative remedy - HELD THAT - It will be apt to take note of the observations of the Hon ble Apex Court in case of M/S RADHA KRISHAN INDUSTRIES VERSUS STATE OF HIMACHAL PRADESH ORS. 2021 (4) TMI 837 - SUPREME COURT where it was held that When a right is created by a statute which itself prescribes the remedy or procedure for enforcing the right or liability resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy convenience and discretion. Thus one of the exceptions to the general rule that a writ petition would not be maintainable when an alternative remedy is available is when a writ petition has been filed for enforcement of fundamental rights as enshrined in the Constitution of India. As noted above the petitioner herein has specifically alleged breach of his fundamental rights by the State/police while challenging his arrest on grounds of non-compliance of Section 41A of Cr.P.C. and directions of the Hon ble Apex Court. Conclusion - This Court is therefore of the opinion that at this stage the petition before this Court is maintainable to the extent of issuance of notice to the respondent. The merit of the case will however be decided only after a reply is filed in this case by the State. Let the matter be listed on 08.07.2024.
ISSUES PRESENTED and CONSIDERED
The core legal issues considered in this judgment include:
ISSUE-WISE DETAILED ANALYSIS 1. Legality of Arrest and Non-Compliance with Section 41A Cr.P.C. The petitioner argued that his arrest was illegal due to non-compliance with Section 41A of the Cr.P.C., which requires notice to be given before arrest in certain cases. The petitioner relied on precedents set in Arnesh Kumar v. State of Bihar, which emphasized the necessity of compliance with Section 41A to prevent unnecessary arrests. The Court noted that the issue of non-compliance with Section 41A was previously raised by the petitioner during his police custody remand and was addressed by the Magistrate in an order dated 19.05.2024. The Magistrate had rejected the petitioner's application on this ground, and the petitioner had not challenged this decision in the Sessions Court. The Court acknowledged the petitioner's claim of breach of fundamental rights under Articles 21 and 22 of the Constitution, which was not limited to non-compliance with Section 41A but also included allegations of mala fide arrest. 2. Entitlement to Compensation The petitioner sought compensation for his alleged illegal arrest. The Court did not make a determination on this issue at this stage, as it required a detailed examination of the merits of the case, which would occur after the State's reply. 3. Departmental Action Against Officials The petitioner requested that departmental action be taken against the officials responsible for his arrest. Similar to the compensation issue, the Court deferred any decision on this matter until further proceedings. 4. Maintainability of the Writ Petition The respondent argued that the writ petition was not maintainable due to the availability of an alternative remedy, as the petitioner had not challenged the Magistrate's order in the Sessions Court. The Court referred to the principles established in Radha Krishan Industries v. State of H.P., which outline exceptions to the rule of alternative remedies, particularly when fundamental rights are alleged to be violated. The Court concluded that the petition was maintainable at this stage for the purpose of issuing notice to the respondent, given the petitioner's claims of fundamental rights violations. SIGNIFICANT HOLDINGS The Court held that:
In conclusion, the Court ordered the issuance of notice to the State, requiring a reply within one week, and scheduled the matter for further hearing on 08.07.2024.
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