Gujarat HC : No Contempt Action Against Police Officer Arresting Without Warrant, If Proper Explanation Given To Magistrate

Case Analysis: [Arnesh Kumar Guidelines] No Contempt Action Against Police Officer Arresting Without Warrant, If Proper Explanation Given To Magistrate: Gujarat HC

No Contempt Action Against Police Officer Arresting Without Warrant, If Proper Explanation Given To Magistrate: Gujarat HC

Introduction

The case of [Arnesh Kumar Guidelines] No Contempt Action Against Police Officer Arresting Without Warrant, If Proper Explanation Given To Magistrate: Gujarat HC [(2023) livelaw.in 238585 HC] deals with the question of whether a police officer can be held in contempt of court for arresting an accused without a warrant, without prior notice under Section 41A of the Criminal Procedure Code (CrPC), if the officer provides a valid explanation before the magistrate. The Hon’ble High Court provides a detailed analysis of the relevant provisions of law and important judgments to arrive at its conclusion.

Background of the case

The case arose from an application filed under Section 12 of the Contempt of Court’s Act, 1971, by the applicants who were arrested by the respondent police officer for offences punishable under Sections 406, 420, 504 and 506 IPC. The applicants alleged that the respondent violated the guidelines laid down by the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar & Anr., as reported in (2014) 8 SCC 273, which required the police to issue a notice under Section 41A CrPC before arresting an accused for offences punishable with imprisonment up to seven years. The applicants sought a court order directing the respondent to rectify the contempt of court and to initiate proceedings against him under the Contempt of Courts Act.

Contentions of the parties in Gujarat HC

The applicants contended that the respondent did not issue any notice under Section 41A CrPC before arresting them and did not record any reasons for doing so. They argued that this amounted to contempt of court as per the Supreme Court judgment in Arnesh Kumar case, which mandated that the police should follow a checklist and furnish reasons and material to justify the arrest. They also relied on various judgments from other High Courts to support their case.

The respondent contended that he had complied with the guidelines of Arnesh Kumar case and had given a valid explanation for arresting the applicants without notice under Section 41A CrPC. He stated that he had mentioned in the checklist that he arrested the applicants to prevent them from committing any further offence of similar nature, as they were running an education/job consultancy firm and had cheated many people by promising them jobs abroad. He also submitted that he had given a copy of the checklist to the magistrate at the time of production of the applicants and that the magistrate had authorized their detention.

Decision of the High Court Gujarat HC

The High Court held that contempt of court proceedings cannot be initiated against a police officer for arresting an accused without a warrant, without prior notice under Section 41A CrPC, if the officer provides a valid explanation before the magistrate. The High Court observed that Section 41A CrPC does not bar arrest in all cases, but only requires that the police should give notice to appear before them and record reasons for arrest if they fail to comply. The High Court also noted that Section 41(1)(b)(ii) CrPC allows arrest without warrant if it is necessary to prevent such person from committing any further offence.

The High Court relied on the Supreme Court judgment in Arnesh Kumar case, which clarified that arrest can be made in cases where there is a possibility of accused absconding or not appearing at trial or tampering with evidence or intimidating witnesses or repeating offences. The High Court found that the respondent had given a clear and specific reason for arresting the applicants in the checklist, which was to prevent them from committing any further offence. The High Court also found that the respondent had furnished a copy of the checklist to the magistrate and that the magistrate had authorized their detention after recording reasons.

The High Court concluded that the respondent had fully and substantially complied with the condition mentioned as per the statutory provision of CrPC as well as adhered with the directions and guidelines issued by the Supreme Court in Arnesh Kumar case. Therefore, the High Court held that there was no contempt of court on part of the respondent and dismissed the application filed by the applicants.

Conclusion

In conclusion, the High Court held that no contempt action can be taken against a police officer for arresting an accused without a warrant, without prior notice under Section 41A CrPC, if he provides a proper explanation before the magistrate. The High Court also held that arrest can be made in cases where it is necessary to prevent such person from committing any further offence. The High Court followed and applied the guidelines laid down by the Supreme Court in Arnesh Kumar case for arrest.

References

  • Case Name: [Arnesh Kumar Guidelines] No Contempt Action Against Police Officer Arresting Without Warrant, If Proper Explanation
  • Given To Magistrate: Gujarat HC
  • Case Citation: (2023) livelaw.in 238585 HC
  • Arnesh Kumar Vs. State of Bihar & Anr. [(2014) 8 SCC 273]

The checklist under Section 41(1)(b)(ii) CrPC can be incorporated as follows:

  • The police officer should record the reasons for arresting the accused without a warrant in writing and mention them in the checklist.
  • The police officer should specify which of the following grounds are applicable for the arrest:
    • To prevent the accused from committing any further offence of similar nature;
    • To ensure proper investigation of the offence;
    • To prevent the accused from causing the evidence of the offence to disappear or tampering with such evidence in any manner;
    • To prevent the accused 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 the police officer;
    • To ensure the presence of the accused in the Court whenever required.
  • The police officer should also state whether he has received credible information that the accused has committed a cognizable offence punishable with imprisonment for more than seven years or with death sentence and whether he has reason to believe on the basis of that information that the accused has committed the said offence.
  • The police officer should give a copy of the checklist to the magistrate at the time of production of the accused and explain why he did not issue a notice under Section 41A CrPC before arresting him.