Illegal: Summoning and Detaining without a crime being registered.
Supreme Court observed that summoning and detaining an individual without a crime being registered against him/her violates the basic principle. The direction issued under Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 will be applicable even if not crime was registered. The bench comprising justices U.U. Lalit, S. Ravindra Bhat and Bela M. Trivedi also said: "The mere fact that no crime was registered, could not be a defence, nor would it be an escape from the rigour of the decisions rendered by this court. As a matter of fact, summoning the person without there being any crime registered against him and detaining him would itself be violative of basic principles".
In this case, A man based in Andhra Pradesh moved the high court seeking a direction not to arrest him without giving due notice under Section 41A of CrPC. The man's wife had filed a criminal complaint against him. The single judge of the high court directed the police to strictly follow the guidelines laid down by the top court in Arnesh Kumar Vs State of Bihar. However, he was forcibly taken away by the police officer and was detained.
Later, he filed a contempt case alleging that in spite of the high court direction, he was detained at the police station. The sessions judges, tasked to filed an inquiry report in the matter, stated that the petitioner was not only summoned to the police station in the name of counseling but was also detained. The single-judge bench of the high court held that the police officer is guilty of contempt of court and sentenced the officer to 3 months imprisonment.
The division bench of the high court set aside this order. The court noted that in the instant case, no crime was registered. "When there is no crime, the question of arresting the writ petitioners would not arise", it added. Restoring the single bench order, the Court modified the substantive sentence of three months to 15 days.
Guidelines laid down under Arnesh Kumar case:
All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);
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;
The Magistrate while authorising 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 authorise detention;
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;
Notice of appearance in terms of Section 41A of Cr.PC 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;
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.
Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. 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.
Reference: Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014: https://indiankanoon.org/doc/2982624/