Kerala High Court seeks explanation from Magistrate for remanding accused arrested in violation of Arnesh Kumar guidelines

The Kerala High Court has sought an explanation from a judicial officer for remanding two accused persons in a case in which arrest was made without satisfying the guidelines laid down by the Supreme Court in Arnesh Kumar v. State Of Bihar [Gopika Jayan & Anr. v Faisal MA]..A division bench of Justices Alexander Thomas and Shoba Annamma Eapen also issued contempt of court notice to the police officer responsible for the arrest "The Registrar General will forthwith call for a report from the learned Judicial First Class Magistrate, who has rendered remand order dated February 3, 2022 on Crime No.44/2022 of Elamakkara Police Station, Ernakulam, as to how he could reach reasonable satisfaction, based on the parameters laid down by the Apex Court in the aforesaid decisions and the applicable legal principles and as to why the arrest and remand of both these accused persons was highly imperative. So also, it shall be explained as to how he has ordered that A1 (1st petitioner) is remanded to the District Jail, Kakkanad and A2 (2nd petitioner) is remanded to the Judicial custody to Borstal School, Kakkanad," the High Court ordered.The Court also observed in its order that more often than not, Arnesh Kumar guidelines are violated than complied by police authorities."We cannot be oblivious to the fact that most of these directions of the Apex Court in cases as in Arnesh Kumar's case, D.K.Basu's case, Joginder's case etc., have been more observed by the Police Authorities in the breach than its adherence," the Court said in its order..The Court asserted that no arrest or remand can be made without reasonable satisfaction that the complaint is genuine and that the complicity of the accused warrants arrest."It is now well established as an elementary proposition of criminal jurisprudence, as can be seen from a reading of Arnesh Kumar, DK Basu v State of West Bengal, and Jogindar Kumar v State of UP & Ors, that no arrest can be made merely because it is lawful for the Police Officer to do so and the existence of the power to arrest is one thing and justification of the exercise of it is quite another and no arrest shall be made without reasonable satisfaction reached after some investigation about the genuineness and bonafides of a complaint and a reasonable belief that both as per the person's complicity and even as to the necessity to arrest that person and denial of liberty is a serious matter, etc," the order stated. .The Court was considering a contempt of court case instituted by a 22-year-old divorced woman with a 10-month-old baby who was living with her mother and her mother's live-in partner. She approached the police, with the help of the second petitioner, alleging sexual harassment at the hands of her mother's the live-in partner. She claimed that did not receive a receipt for the complaint and is unaware of the status of the same.Her mother was somehow alerted and the petitioner received a heated phone call and was told not to return home.On the same day, the mother e-mailed the Child Welfare Committee alleging that the petitioner had abandoned her child and thereafter, gave a first information statement to the police.The police apparently proceeded on the assumption that the petitioner had intentionally deserted the child and that the second petitioner had abetted the act.On this basis, criminal proceedings were initiated by the respondent police officer, by first registering a man missing FIR under the Kerala Police Act and later altering it to offences under the Juvenile Justice Act (JJ Act).When the petitioners were called to the police station, they believed it was for the man missing report but they were arrested and the police allegedly did not inform them of the offences involved.After the petitioner was brought before the jurisdictional Magistrate, the petitioner gave a statement about the harassment by her mother's live-in partner and other circumstances. The Magistrate remanded the petitioners to 5 days judicial custody. The petitioners then approached the High Court by way of the present contempt case alleging patent and flagrant violation of the directives and guidelines issued by the apex court Arnesh Kumar..The Court noted that going by the prescriptions of the JJ Act, the offences alleged would come within the ambit of Section 41 A(1) of the Code of Criminal Procedure (CrPC). In the instant case, the Court found that police authorities had violated Arnesh Kumar guidelines by not serving a Section 41A notice. The Court opined that the case papers and the remand order also did not show any application of mind."Prima facie, we would also observe in the same breadth that though, the first petitioner had given a statement before the learned Magistrate in terms of Annexure A6, the learned Magistrate has not taken into consideration those aspects regarding the harassment said to have been meted out to her by her so called step father and has not cared to make any proper satisfaction as to whether the case of deliberate and premeditated abandonment of the child is made out," the Court noted..Therefore, the Court issued contempt of court notice and chided the police officer for not filing a personal affidavit in the case and for seeking repeated adjournments.It also sought an explanation from the Magistrate who passed the remand order."The matter cannot brook any further delay," the Court said as it posted the case for further consideration on July 7..[Read Order]