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TMI Blog2022 (10) TMI 1262X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, this Court holds that the impugned order certainly amounts to an intermediate order. Therefore, Revision lies. Is the judgment in Arnesh Kumar Vs. State of Bihar, a sword of Damocles as contended? - HELD THAT:- As rightly pointed out, no where in the judgment that is rendered by the Hon'ble Apex Court in Arnesh Kumar s case, it is laid down that the police officer is not empowered to arrest the accused for the offences punishable with imprisonment of either description for a term of seven years or less than seven years, though the offences alleged to have been committed are cognizable in nature and falls within the ambit of Section 41(1) Cr.P.C. The discussion that will go on in point No. 3 would make the above observations clear - A parental guidance by the Supreme Court through the judgment in Arnesh Kumar s case is thus not a sword of Damocles either in respect of police officers or Magistrates who exercise the power of arrest and remand respectively. Is it the mandate of law that no arrest can be effected without there being a notice issued under Section 41-A Cr.P.C. in all cases relating to cognizable offences which are punishable with imprisonment of either descripti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it Reddy lodged a complaint at Rajendranagar Police Station stating that on 26.9.2022, respondent Nos. 1 and 2 met him and negotiated with him requesting him not to contest as candidate from the party he belongs and to join another party. For doing so, they offered him an amount of Rs. 100 crores, Central Government civil contract works and other high Central Government posts. He was also threatened that in case, he fails to join, criminal cases would be booked and raids would be conducted by E.D/C.B.I. Since the said inducement of bribe was unethical, undemocratic and encouraging corruption, he decided not to entertain such unethical practises. On 26.10.2022, respondent Nos. 1 and 2 again contacted him and informed him that they are coming to his farm house for negotiations. They requested to mobilise some other M.L.As. They also informed that they along with respondent No. 3 would come to his farm house to finalise the deal. By stating so, the defacto complainant made a request to police to take necessary legal action against those persons. 4. On receipt of such complaint, a case was registered in Crime No. 455 of 2022 of Moinabad Police Station and investigation was taken up. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Police seized the pre-arranged electronic spy gadgets from the hall of the farm house and also the two voice recorders from the defacto complainant under the cover of seizure panchanama. On playing the voice recorders before the respondents-accused Nos. 1 to 3, they disclosed the conversation of offering of bribe of Rs. 50 crores to each M.L.A. besides other monetary benefits. 6. The two mobile phones which were found in the possession of respondent No. 1/accused No. 1, one mobile phone which was found in the possession of respondent No. 2/accused No. 2 and a mobile phone found in the possession of respondent No. 3-accused No. 3 were seized in the presence of the mediators. Other relevant material including some papers, dairy, laptop, etc., which were found in a car, were also seized. 7. The above set of case facts, as per the submission of the learned Advocate General, formed basis for police to take up investigation. 8. Learned Advocate General submits that as the offences committed by the respondents-accused Nos. 1 to 3 are heinous and serious in nature, they were arrested and produced before the Magistrate concerned for remand. Learned Advocate General states that the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u, but, it was indeed carried out by the Police officers of Moinabad Police Station, which is against the procedure prescribed under the Prevention of Corruption Act, 1988, and thus, registration of case itself is bad in law. 12. During the course of submission, it is also contended by the learned senior counsel that a Criminal Revision Case is not maintainable against an interlocutory order and thus, the present Criminal Revision Case itself is unsustainable. 13. Thus, multiple issues are before this Court to be addressed and decided. The core issue though is as simple as whether rejection of a request to remand the respondents-accused Nos. 1 to 3 by the learned Magistrate is justifiable or not, the case is made complicated. However, this Court is duty bound to address all the issues raised. 14. The seminal questions thus germinate for consideration are- (1) Whether High Court s power of Revision can be exercised to decide the legality of an order of rejection of remand. (2) Is the judgment in Arnesh Kumar Vs. State of Bihar, a sword of Damocles as contended. (3) Is it the mandate of law that no arrest can be effected without there being a notice issued under Section 41-A Cr.P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantially affects the, right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in s. 397 of the 1973 Code. 17. The subsequent decisions of Hon ble Supreme Court viz., Girish Kumar Suneja Vs. CBI [(2017) 14 SCC 809] and Madhu Limaye Vs. State of Maharashtra [AIR 1978 SC 47] also followed the same proposition. Pertinently, in the decision relied upon by the learned senior counsel appearing for the respondents in the case between State reptd by Inspector of Police Vs. N.M.T. Joy Immaculate [AIR 2004 SC 2282], the observations made in the preceding judgments were endorsed. 18. In the case on hand, an order accepting the request for remand would send the accused to jail and refusal to do so would let them free. Thus, such an order which tends to decide the liberty of accused on one hand and the right to arrest by police on the other hand finally and conclusively, cannot be termed to be an interlocutory order. Thus, this Court holds that the impugned order certa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. 7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest. 7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by subclauses (a) to (e) of clause (1) of Section 41 CrPC. 21. The guidelines that were issued by the Hon'ble Ape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of the police officers is as under:- 11.7. 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 the High Court having territorial jurisdiction. 24. The caution given by the Hon'ble Apex Court so far as Judicial Magistrates are concerned, is as under:- 11.8. Authorising detention without recording reasons as aforesaid Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court. 25. The submission of the learned Advocate General is that by fear of action, more particularly the caution give by the Hon'ble Apex Court in Arnesh Kumar s case (first cited supra), the Judicial Magistrates are not exercising the power of remand and are returning the remand reports directing the police to issue notice under Section 41-A Cr.P.C. and the same is undesirable. 26. As rightly pointed out, no where in the judgment that is rendered by the Hon'ble Apex Court in Arnesh Kumar s case (first cited supra), it is laid down that the police officer is not empowered to arrest the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11605, 11613 and 11142 of PS Rajendranagar, R.R. District at 9.15 pm and also Shiva Reddy, ASI, PC 6080, PC 2790 and HG 1760 of PS Moinabad. Verified the particulars of the accused. A-2 stated that police did not allow him to contact his advocate. The alleged offences are under Sections 120-B, 171-B r/w 171-E, 506 r/w 34 IPC and Section 8 of the PC Act, 1988. Maximum punishment prescribed is upto 7 years for the offence u/s 8 of PC Act. Therefore, as per decision of Hon'ble Apex Court in Arnesh Kumar Vs. State of Bihar, it is mandatory to issue notice under Section 41-A Cr.P.C. to the accused persons. But, police violated to follow the guidelines of Hon ble Supreme Court. Hence, arrest of accused Nos. 1 to 3 is illegal for not giving mandatory notice under Section 41-A of Cr.P.C. Therefore, it is a fit case to reject the remand of the accused persons. Accordingly, remand report is rejected. A-1 to A-3 are set free. Police are directed to release A-1 to A-3 as far as this crime is concerned. 31. The submission made by the learned Advocate General is that there is no mention in the judgment rendered by the Hon'ble Apex Court in Arnesh Kumar s case (first cited supra) that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing. Circumstance No. VI: Who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody. Circumstance No. VII: Who is reasonably suspected of being a deserter from any of the Armed Forces of the Union. Circumstance No. VIII: Who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India. Circumstance No. IX: Who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356 Cr.P.C. Circumstance No. X: For whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hours of their custody. (2) The Police Custody of the accused persons is very much essential to due to the seriousness of the charges against them. (3) In order to prevent accused persons from causing the evidence of the offence to disappear or tamper with such evidence in any manner. (4) To prevent accused persons from making any inducement, threat or promise to any person acquainted with the facts of the case, so as to dissuade him from disclosing such facts to the court or to any Police Officer. (5) To ensure that the accused persons shall not commit similar offences of which they are presently accused of (6) The accused persons are likely to interfere with the process of further investigation and likely to interfere with the process of recording of 164 Cr.P.C. statement of the complainant. (7) Further, several other witnesses and other documents are to be examined and other follow up action needs to be taken up in this case. 42. Now, let us see whether the case falls under Section 41(1)(b) Cr.P.C., which is mostly relied upon the learned Advocate General. 43. For exercising the power of arrest under the said provision, as earlier indicated, twin conditions have to be complied. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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