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2017 DIGILAW 123 (CAL)

Debasish Saha v. State of West Bengal

2017-01-27

JOYMALYA BAGCHI

body2017
JUDGMENT : Joymalya Bagchi, J. 1. The petitioner has approached this court, inter alia, alleging that he was illegally arrested in connection Baguihati Police Station Case 668 of 2015 dated July 26, 2015 under Sections 341/323/354/345D/506 of the India Penal Code and under Sections 66A/66E of the Information Technology Act without complying with the directives laid down by the Apex Court in the case of Arnesh Kumar v. State of Bihar & anr. reported in (2014) 8 S.C.C. 273 . The learned lawyer appearing on behalf of the petitioner submits that his client was arrested in the instant case on September 28, 2015 without resorting to provisions of Section 41A of the Code of Criminal Procedure. He submits that the aforesaid criminal case had been registered at the behest of his estranged wife, namely, Mousumi Saha, in order to malign and harass him. He further submits that the arrest was unnecessary in the facts of the case and the police officer in an arbitrary and whimsical manner arrested his client and subjected him to unnecessary deprivation of liberty and irreparable loss and injury to his reputation in utter breach of the fundamental rights of life and liberty as enshrined under Article 21 of the Constitution of India. In support of his contention, he relies on Dr. Rini Johar & anr. v. State of Madhya Pradesh & ors. reported in 2016 (11) S.C.C. 703 . 2. Mr. Subhabrata Dutta, learned advocate appearing on behalf of the State respondents, submits that the first information report was lodged by the de facto complainant complaining of continual harassment by the petitioner. It has been alleged in the first information report that the petitioner was holding out threats to the de facto complainant and her mother and was regularly subjecting them to verbal abuses including physical assault. Several general diaries being General Diary Entry No. 2651 of 2015 dated July 29, 2015 and General Diary Entry No. 53 of 2015 dated August 1, 2015 respectively were lodged by the de facto complainant - complaining that after registration of the aforesaid criminal case, the petitioner was threatening the de facto complainant and her mother with dire consequences including death if they did not withdraw the aforesaid criminal case. On the basis of such complaints lodged by the de facto complainant, the investigating officer, being respondent No. 4 herein, came to the conclusion that there were prima facie materials that the petitioner was continuously threatening the de facto complainant and there was every chance of tampering of evidence and/or abscondence of the accused person. Hence, he recorded such grounds of arrest at page 23 of the case diary on 16th August, 2015 at 23.59 hours and thereafter proceeded to effect arrest in terms of Section 41(1)(b)(ii)(d) of the Code of Criminal Procedure. Such satisfaction was also reflected in forwarding memo dated 29th September, 2015 while producing the petitioner before the learned Magistrate in accordance with law. These facts have also been averred in the affidavit in opposition filed by respondent No. 4 in this case. 3. In reply, the learned lawyer for the petitioner submits that there was mere recitation of the words of the statute in the matter of arrest although the factual matrix of the case does not disclose adequate reasons justifying arrest in the instant case. He also submits that no checklist was prepared or forwarded along with forwarding memo while producing the accused before the learned Magistrate in terms of the directive clauses 2 and 3 of the decision in Arnesh Kumar (supra). 4. Arrest of an accused is a discretion vested in a police officer while investigating a cognizable offence. However, such arrest ought not to be made merely because the police officer has the right to do so. It is trite law that the power of arrest should be exercised by the police officer with due circumspection and ought not to be a product of whimsical callousness as unjustified deprivation of liberty of a person pending investigation causes severe inroad into his personal liberty as enshrined under Article 21 of the Constitution of India and has severe consequences. Arrest not only amounts to deprivation of liberty of the individual, as aforesaid, but also affects his reputation casting an indelible stigma on his psyche and existence which is barely erased by a subsequent exoneration. [See D.K. Basu v. State of W.B. (1997) 1 SCC 416 , Joginder Kumar v. State of U.P. (1994) 4 SCC 260 and Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694 ]. [See D.K. Basu v. State of W.B. (1997) 1 SCC 416 , Joginder Kumar v. State of U.P. (1994) 4 SCC 260 and Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694 ]. To remedy such state of affairs, Section 41 of the Code of Criminal Procedure was amended in 2010 so as to engraft Section 41(1)(b)(ii) therein enjoining certain objective parameters to be recorded by the arresting officer prior to effecting arrest of a person accused of committing offence punishable upto seven years' imprisonment. As a corollary, Section 41A was incorporated in the Code empowering the police officer to issue notice of appearance to a suspect whose arrest, for reasons to be recorded in writing, he considers unnecessary during the investigation of the case. For better appreciation of the statutory scheme, the relevant portions of the aforesaid provisions are set out hereinbelow:- "41. When police may arrest without warrant - (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person- ...... For better appreciation of the statutory scheme, the relevant portions of the aforesaid provisions are set out hereinbelow:- "41. When police may arrest without warrant - (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person- ...... (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:- (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; (ii) the police officer is satisfied that such arrest is necessary- (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person 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; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing: [Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.]" .......... "41A. Notice of appearance before police officer - (1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice." 5. The aforesaid provisions fell for interpretation in Arnesh Kumar (supra) wherein the Apex Court while dealing with investigation in connection with offences punishable under Section 498A of the Indian Penal Code read with Section 4 of the Dowry Prohibition Act arising out of a matrimonial dispute laid down certain directives relating to arrest of an accused in such cases. The aforesaid provisions fell for interpretation in Arnesh Kumar (supra) wherein the Apex Court while dealing with investigation in connection with offences punishable under Section 498A of the Indian Penal Code read with Section 4 of the Dowry Prohibition Act arising out of a matrimonial dispute laid down certain directives relating to arrest of an accused in such cases. The directives are as under:- (1) "All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498A of the Indian Penal Code is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 of the Code of Criminal Procedure; (2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii); (3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; (4) The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention; (5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; (6) Notice of appearance in terms of Section 41A of the Code of Criminal Procedure be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; (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 High Court having territorial jurisdiction. (8) Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court." In the said report, the Apex Court further observed and directed as follows:- "We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498A of the Indian Penal Code or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine. We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance." 6. Analysis of the aforesaid directives show that a police officer investigating an offence punishable upto seven years of imprisonment shall not arrest an accused unless he has reason to believe that the accused has committed the offence and any of the parameters laid down in Section 41(1)(b)(ii) of the Code are satisfied in the facts of the case necessitating such arrest. Prior to effecting arrest, the arresting officer must record the reasons of such arrest in a checklist and forward the same while producing the accused before the Magistrate who shall peruse such report and record necessary satisfaction prior to remanding the accused. If such parameters as laid down in Section 41(1)(b)(ii) of the Code are absent in the facts of a case, the investigating officer shall within two weeks from registration of FIR issue notice of appearance to the accused in aid of investigation of the case. Such time frame may be extended, for reasons recorded in writing, by the Superintendent of Police of the district. Failure to comply with such procedure shall make the police officer and Magistrate liable to departmental action and/or initiation of contempt proceeding so far as the police officer is concerned. 7. In this backdrop, it is to be seen as to whether the arresting officer, that is, the respondent No. 4 herein, in the instant case had complied with the directives as laid down in Arnesh Kumar (supra) or not. 8. 7. In this backdrop, it is to be seen as to whether the arresting officer, that is, the respondent No. 4 herein, in the instant case had complied with the directives as laid down in Arnesh Kumar (supra) or not. 8. The factual matrix of the case reveals that the de facto complainant being the wife of the petitioner had registered the aforesaid criminal case of assault, harassment and/or stalking including posting of offensive messages/pictures on the social media site in order to criminally intimidate the de facto complainant and/or to harass and humiliate her in the eyes of society. 9. All the offences alleged in the first information report/charge sheet are punishable with imprisonment upto seven years although some of them are non-bailable in nature. It was, therefore, incumbent upon the investigating officer while arresting the petitioner in the aforesaid case to comply with the guidelines laid down by the Apex Court in Arnesh Kumar (supra). Upon perusal of the records of investigation, I find that the investigating officer arrived at a satisfaction that there was prima facie materials against the petitioner that he was threatening the de facto complainant including her witnesses and general diaries being General Diary Entry No. 2651 of 2015 dated July 29, 2015 and General Diary Entry No. 53 of 2015 dated August 1, 2015 had been lodged in that regard. On such premise, the investigating officer arrived at a conclusion that the condition as laid down in Section 41(1)(b)(ii)(d) of the Code of Criminal Procedure was satisfied and proceeded to arrest the petitioner in order to prevent the latter from threatening the de facto complainant and her witnesses in the instant case. Necessary averment to that effect was also made in the forwarding report while producing the accused before the court below. These facts have not only been averred in the affidavit in opposition sworn by the investigating officer/respondent No. 4, but are also evident from the contemporaneous records maintained in the course of investigation. 10. It is, however, argued that such satisfaction was arrived at a mechanical manner and the factual foundation for recording such conclusion, as aforesaid, is singularly absent in the instant case. 11. I am unable to accept such contention. 10. It is, however, argued that such satisfaction was arrived at a mechanical manner and the factual foundation for recording such conclusion, as aforesaid, is singularly absent in the instant case. 11. I am unable to accept such contention. The satisfaction of the investigating officer that the petitioner was threatening the de facto complainant and her witnesses is borne out from the general diaries lodged by her in the instant case and upon inquiring into such complaints the investigating officer had come to the requisite conclusion that it was necessary to arrest the petitioner to prevent the latter from intimidating the de facto complainant and her witnesses. In Dr. Rini Johar (supra) the arrest was effected without recording reasons as contemplated in Section 41(1)(b)(ii) of the Code for effecting arrest whereas in the instant case such satisfaction was duly recorded by the arresting officer, as aforesaid. Hence, the said authority is of no help to the petitioner. 12. It is true that the investigating officer had merely recorded such reason in the records of investigation and not incorporated the same in a checklist as required under directive No. (2) in the authority of Arnesh Kumar (supra) and forwarded such checklist while producing the accused in the instant case. 13. Upon queries made to the learned lawyer for the State, he is unable to satisfy the Court as to whether such checklist had been provided by the State to the police stations as required by the directions issued in the aforesaid report. In the absence of materials to show that the checklist was provided to respondent No. 4, it would be absurd to expect that he would record his satisfaction in terms of such checklist and forward the same to the learned Magistrate while arresting the accused. In this backdrop, I am of the opinion there is substantial compliance of the directives of the Apex Court in Arnesh Kumar (supra) in the matter of effecting arrest in the instant case and no case for initiating contempt proceeding against respondent No. 4 has been made out by the petitioner. The petition is accordingly dismissed, however, with no order as to costs. 14. Before parting, I note with concern that all the directions in Arnesh Kumar (supra) are not being followed in the State of West Bengal in a scrupulous manner. The petition is accordingly dismissed, however, with no order as to costs. 14. Before parting, I note with concern that all the directions in Arnesh Kumar (supra) are not being followed in the State of West Bengal in a scrupulous manner. Nothing was placed before me to show that either the Chief Secretary or the Director General of Police had ensured supply of checklist in terms of directive No. (2) of Arnesh Kumar (supra) to all the police stations so that the investigating officers may record their satisfaction in an objective manner prior to effecting arrest of a suspect while investigating cases involving offences punishable with imprisonment upto seven years and forward such checklist while producing the accused before the learned Magistrate for the latter's perusal and satisfaction in accordance with law. 15. Under such circumstances, I direct the Director General of Police, West Bengal, to file a report before this Court as to compliance of direction (2) & (3) in Arnesh Kumar (supra) with regard to furnishing checklists in terms of direction (2) of the said report to every police station so that the investigating officers may utilize the same while recording the necessary satisfaction coupled with reasons for effecting arrest in cases involving offences punishable with imprisonment upto seven years on the next date of hearing. For the aforesaid purpose, let this matter appear four weeks hence.