The High Court recently pulled up the State Police Department for arresting persons automatically upon the registration of FIR, without regard to the safeguards against arrest under Section 41A of the Code of Criminal Procedure.

Section 41A, CrPC pertains to issuing a notice of appearance before police officer when arrest is not necessary.

"In spite of the clear guidelines by the Hon'ble Apex Court, some of the police officials are continuing to make indiscriminate arrests, immediately after registering the complaint without proper investigation."

The court was hearing a plea by a Telugu Desam Party politician seeking to quash criminal proceedings against him under Section 153-A of the Indian Penal Code.

He was booked for a Facebook post that supposedly promoted enmity, hatred and ill-will among communities. The FIR was registered based on a complaint by the Social Media Coordinator in the office of a Member Legislative Assembly.

The Court questioned the Judicial Magistrate on why he remanded the arrestee to custody in this case and authorized detention in violation of Section 41A, CrPC. It also emphasised,

"The Magistrate must understand the power to authorise detention is a solemn function because it affects the liberty and freedom of the citizen. This duty has to be discharged with utmost care and caution, but not in a routine manner."

The petitioner contended that he was remanded without any notice, in violation of the Supreme Court's pronouncement in Arnesh Kumar v. State of Bihar where the Court directed a police officer to issue notice before directing an 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 office is of the opinion that the arrest is necessary."

Supreme Court in Arnesh Kumar v. State of Bihar

Finding that the lack of notice issued and the automatic arrest in this case violated the Supreme Court’s decision in Arnesh, the High Court sought a report along with the record from the Magistrate on what basis Section 41A of CrPC was dispensed with and the accused remanded.

The Court reiterated:

• If a police officer dispensed with the notice under Section 41-A,CrPC and proceeded to arrest, he was to forward a check list duly filed, with reasons that necessitated the arrest.
• After the accused was forwarded to the Magistrate, the Magistrate is expected to record reasons for authorising detention.
• A failure to comply with these directions will render the police officer liable for departmental action as well as contempt of Court proceedings before the High Court.

Even the Magistrate is also liable for departmental action by the High Court (if found contravening these Guidelines) the Judge underscored towards the end of her order.

As for the instant case, the Court has stayed the criminal proceedings against the petitioner and posted the matter for further consideration on November 26.