Police Officer To Take Action If Making Arrest Procedure U/S. 41A Cr.P.C Violated : Telengana High Court : Guidlines By The Hon'ble Apex Court

Very Recent, the Telangana High Court granted an accused the right to initiate proceedings against police officials if theprocedure for arrest U/S. 41A Cr.P.C is violated and the police officials are bound to maintain the guidlines by the Honourable Apex Court on the "Arnesh Kumar" case for arrest. 

A single-judge bench led by Justice Lalita Kanneganti was hearing an anticipatory bail application filed by the head of an education/job consultancy firm in Secunderabad, who was primarily accused with cheating under Section 420 of the Indian Penal Code. 

While hearing in the Honourable Court the application under Section 438 Cr.P.C, the Honourable Court marked that when the castigation for the transgression is less than seven years, police officials are necessary to follow the Honourable Appex Court’s rudder in Arnesh Kumar v. State of Bihar and persue the procedure under Section 41-A CrPC by outpouring a notice demanding the accused’s emergence.

According to the complainant, the alleged made a false employment pay off to him, assuring to him employment abroad in permutation for a payment of Rupees 10 Lakhs. In the hopes of recognizing work in a foreign country, the complainant conferred the amount demanded by the alleged. The alledged was not capacious to the complainant’s rummage about the job after that, despite repeated attempts, the complainant claimed. The complainant also assertioned that the accused tried to slip away the country. 

Soon after the complaint was obtained, the petitioner accused was captivated for offences punishable under Sections 406, 420, 504 and 506 of the Indian Penal Code. He then applied to the Telangana High Court for anticipatory bail under Section 438 Criminal Procedure Code. 

According to the petitioner, conflicting to the procedure followed under Section 41A Cr.P.Code for analogous offences, the police officers were adamant about assertaning the issue with the complainant. According to the counsel, they were even threatening the accused with arrest if he did not listen to them. 

The Honourable High Court also marked that an intermediate order had previously been issued on the same remonstrance raised by the accused. Before the intermediate order was issued, the petitioner’s counsel indictmented that the police consider the temperament of the offence, which is a bailable offence punishable by less than 7 (seven) years in prison under the code, and take adequate action. As a result, the court stated in the interim order: 

When the petitioner implored for a copy of the order on the same day he was arrested by police, Justice Lalita Kanneganti went on to expanded on the strict limitations take measured certified copies of bail orders for release. 

The court reputated that the unseverable right of an accused to bail, secured by the constitution, is inadequate if bail orders are not issued in a timely manner. As a result, the Telangana High Court has give up the needful for certified copies of bail orders, stating that e-copies will be accepted beginning 22nd November , 2021.

 IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDEIIABAD

THE FIFTEENTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY ONE :

PRESENT: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION N0: 8108 OF 2021

Bctween:

V. Bharath Kumar, S/o. V. Jaya Kumar, Petitioner/Accused

AND

The State ofTelangana, through P.S., Tukaramgate, Rep. by its Public Prosecutor, High Court of Telangana, Hyderabad. Respondent/Complainarfi ..,.

Petition under Section 438 of Cr.P.C, praying that in the circumstances stated in the petition and the grounds filed therein, the High Court may be pleased to enlarge the Petitioner/Accused on bail in the event of his arrest in Crime No.23312021 of P.S. Tukaramgate dated 18.10.2021;

The petition coming on for hearing, upon perusing the Petition and the grounds filed therein, and upon hearing the arguments of Sri Kararn Chendu Komireddy, Advocate for the Petitioner, and ofthe Asst. Public Prosecutor, lor the Respondent, the Court made the following.

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION NO. 8108 OF 2O2I

ORDER

This Criminal Petition under Section .138 Cr.P.C. is liled by the petitioner / accused seeking anticipaton' bail in Crime No. 233 of 2O2l of SHO, Tukaramgate Police Station, registered for the offences punishable under Sections 406, 42O, 5O4 and 506 IPC.

Heard learned counsel for the petitloner / accused as well as learned Assistant Public Prosecutor appearing lor respondent / State. Perused the material on record. The allegations of the prosecution, in brief, are as u nder: On 18.1O.2021 at 15.30 hours, the police received complaint from one Sri B. Kashi Ram stating that one person by name V. Bharath Kumar, Director of Eagle lmmigratlons and tregle Expert lmmigrations Private Limited, East Maredpally, promised that he would provide job abroad to the complainant and asked to pay Rs. 10,00,000/-.

Between 08.O3.2021 and 04.04.2021, the complainant paid Rs.8,00,000/- through cheque and Rs.2,00,000/- by way of cash. On 05.05.2021, even after repeated requests, he was not provided with job. Further, when petitioner is making efforts to leave the country, present report is lodged Basing on the same, the subject crime is registered Learned counsel for the petitioner Si Karam CLrcndu Komireddg submits that though the punishrnent pre scribed for the 3 4 q 2 4 aforesaid offences is below seven years and the police, having issued notice under Section 41-A Cr.P.C., still are not following procedure contemplated under the said section and threatening the petitioner to enter into compromise with the complainant. 

In fact, challenging the high-handed action of the respondent - police, the petitioner filed W.P. No. 27774 of 2O2l and this Hon"ble Court was pleased to pass interim order dated 08.11.2021, which reads as under: "Main grievance of petitioner is that police are not following procedure contemplated under Section 41-A Cr.P.C. and guidelines issued by the Supreme Court in Arnesh Kumar v. State of Bihar (AIR 2014 SC 2756). Petitioner is sole accused in FIR No. 233 of 2021, P.S. Tukaramgate registered for the offences under Sections 106, 12O,504 and 506 IPC.

Learned counsel for the petitioner submits that all the offences are bailable with less than seven years imprisonment and mandatory procedure under Section 41-A Cr.P.C. is required to be followed. Notice before admission. Personal notice is permitted to Respondent No.5. Learned Assistant Government Pleader for Home to get instructions bv the next date of hearing. Post on 15.1 1.2021. In case petitioner is required for the purpose of investigation, Respondent No.4 - Station House Officer, Tukaramgate Police Station is directed to follow procedure under Section 41-A Cr.P.C. and guidelines issued by the Supreme Court in Amesh Kumar's case."  Learned counsel for the petitioner submits that in spite of the above order passed by this Court, the respondent - 7 3 police are pressurizing the petitioner to enter into compromise with the complainant and threatenrng to arrest him.

When the punishment for the aforesaid olfences is below seven years, the respondent - police are bound to follow the procedure contemplated under Section 41-A Cr.P.C. and also the guidelines issued by the Hon'ble Apex Court in Arnesh Kumar u. State of Bihr:rl. Further, the Hon'ble Apex Court has also provided remedies to the aggrieved party, if the provisions under Section 41-A Cr.P.C. are not followed by the police officers as well as the judicial officers If the petitioner is aggrieved by the action of the police in not following the procedure contemplated under Section 41-A B 9 threatening him to compromise the matter, petitioner is at liberty to initiate appropriate proceedings against the officers concerned.

It is lurther directed that having issued notice under Section 41-A Cr.P.C., the police are bound to follow the procedure and the guidelines issuecl by the Honble Apex Court. Hence, police are directed to adhere to the procedure contemplated under Section 41-A Cr.P.C. and also the guidelines issued by the Apex Court in Arnesh Kumar's case (supra) scrupulously. Any deviation in this regard $,ill be viewed seriously. After passing this order, learned counsel lbr the Cr.P.C. and resorting to other means and measures by lAIR 2014 sc 2756 I &# petitioner requested for a copy thereof on the same day, else police may take coercive steps against the petitioner. 

The bail petitions are heard by the Court as expeditiously as possible and orders are also passed immediately. The difficulty and the delay, however, is in dispatching the certified copies of the orders. Once the signed orders leave the Chambers of the Judge and by the time the advocate I clienL receives the certified copy it has to pass through several phases of scrutiny and approval. In some cases, it may take days together lor dispatching the order due to invariable reasons. This procedure of dispatching the order coples has been followed by the Courts from a very long ttme. Justice Kishna IAer once said that 'our judicial system is 200 years behind when compared to developed countries'.

In this advanced age of technologu, we should make use of technologr in improving the administration of justice. It will enhance the efficiency and we will be able to achieve the goal of giving time ly justice to the needy.  Protection of personal liberty of an individual is, undeniably, a constitutional duty ol this Court. Our criminal justice system always gives paramount consideration to the protection of the rights of the accused. Article 21 of the Constitution of India mandates that the personal liberty of an accused can be curtailed only alter strict compliance with the procedure establlshed by law.

Sections 438 and 439 Cr.P.C. ensure that the accused is not deprived of his personal liberty arbitrarily. The Honble Apex Court in catena of cases held that ) ry 'speedg adjudication process is one of the rnain facets that constitute tLe essence of access to justice and uithout it, access to justice as a constitutional ualue uill be a mere illusion'.

Denial of this right undermines public conlidence in the justice-delivery system. It is also a settled 1aw that the right of an accused to have his bail application heard by the Court within a reasonable time has been entrenched as a constitutional liberty. At the same time, disposal of bail application without furnishing the order copy within a reasonable time will not place the accused in a better position. Mere emphasizing that an accused has an indefeasible fundamental right to bail itself is not sufficient without furnishing the copy of the order. 

This is high time, the Courts shall address these issues with a progressive approach by adopting the innovative methods. 

The Hon'ble Apex Court has expressed the concern that serious deficiency in the criminal judicial system is the delay in communication of orders, which we need to address on warfooting, because it touches upon the human liberty of undertrialers / convicts. The Hon'trle Apex Court also introduced a mechanism for speedy communication of bail orders to prisons under an electronic transmission channel known as FASTtrR (Fast and Secured Transmission of Electronic Records). 

Hence, this Court feels that an alternative mechanism shall be evolved to address the plight ol these under-trial prisoners / accused. 

(a) Parties / Advocates sha1l download the order copy from the High Court's Website along with case details which are available in the case status information.

(b) Whiie filing the memo on behalf of accused for furnishing sureties, the Advocate shall state in the Memo that he / she has downloaded the order copy from the High Court's Website. The Administrative Officer / Chief Ministerial Officer of the Court concerned shall verify the order from the High Court's Website and make an endorsement to that effect and then shall place the same before the Court.

(c) The Public Prosecutor shall also obtain necessary instructions in this regard and assist the Court.

(d) The Presiding Ofiicer, on the same day, shall dispose of the same and dispatch the release order to the jail authorities concerned forthwith through e-mail or any other electronic mode.

(e) In cases of anticipatory bail, the burden to verify the authenticity of the copy is on the Station House Officer concerned and if necessary, he should obtain necessary instructions from the Public Prosecutor's Office and complete the process on the same day expeditiously as per law.

(f) The jail authorities on receipt of the release order shall release the accused forthwith.

(g) Registrar (Judicial) shall communicate copy of this order to

1) The Principal Secretary for Home Affairs, State of 7 Telangana,

2) The Director General of Police, State of Telangana,

3) The Director of Prosecution, who, in turn, shall sensitize the police officers / Station House Officers / Public Prosecutors and ensure implementation of this order.

(h) Registrar (Judicial) shall communicate copy of this order to al1 the Principal District Judges in the State, who, in turn, shal1 sensitize all the Presiding Ollicers and ensure implementation of this order.

(i) Registrar (Judicial) is further directed to circulate the copy of this order to all the Bar Associations in the State through the Principal District Judges, so that they can eflectively address their client's cause

(j) Registrar (Judicial) shall also issue a separate notification in this regard and the same shall be displayed in the High Court's Websrte.

(k) These directions will apply to all bail application including bails in Criminal Revision as well as Criminal Appeals. This order shall come into force from22.11.2021.  The Judicial Officers in the State shall bring to t.he notice of the Registrar (Judicial) the dilficulties / hit.ches, if any in implementing the directions of this Court. In case ol anticipatory bails, the police officials shall bring to the notice of the Public Prosecutor, High Court about their difficulties in implementing the orders of this Cor,rrt and the Registrar (Judicial) and Learned Public Prosecutor shall place the same before this Court bv the next date of hearing ie. 22.12.2021. 8 t6. These directions will be in force until further orders or suitable Rules are framed in this regard. It is needless to mention, if any clarification or modification is required for effective implementation, they will be examined accordingly on the next date of hearing. 

In spite of all odds, determined eilorts are required for achieving the goal. Ways and means have to be found out by constant thinking and monitoring. It is the responsibility of all the stakeholders to uphold the public conlidence in the j ustice-delivery system by giving timely justice which includes furnishing the copies of orders / judgments.

Post on 22.12.2021.

                                                                                                                                               SD/-

                                                                                                                                K. VENKAI ASSISTANT 

Copy to :

1. SECTION OPFICER The Registrar (Judicial-l).

2. High Court ofTelangana, at Hyderabad -" The Section Officer, Special Officers Sectiort.

3. High Court ofTelangana, at Hyderabad Two CCs to Public Prosecutor.

4. High Court ofTelangana, at Hyderabad (BY SPL. MESSENGER).

5. One CC to Sri Karam Chendu Komireddy, Advocate (OPUC) .

6. one Spare copy.

DATE:15-11-2021

ORDER CRL.P. NO.8108 0F 2021