A police officer arresting without serving notice was sentenced to simple imprisonment for a day as per section 41A of the Code of Criminal Procedure, which entails notice for appearing before a police officer, such police officer would be liable to be sentenced to imprisonment and fine.This was decided in the Delhi High Court consisting Justice Nazmi Waziri in the matter of Rakesh Kumar v. Vijayanta Arya (DCP) and Ors. (Cont. Cas(c) 480/2020 & CM APPL. 25054/2020) decided on 7.12.2021
The facts of this case are that the Respondent police officer arrested the Petitioner without serving any notice under section 41A of the Criminal Procedure Code.This action on the part of the police officer was marked punitive by this judgement in the High Court.The Petitioner was merely alleged of a criminal breach of trust, for which there is only provision of maximum 3 years imprisonment.The Respondent directly arrested the Petitioner without notice and due to this contempt proceedings would be initiated against the former as per the judgement.
The counsel on behalf of the Petitioner contended that mere allegation of criminal breach of trust does not justify wrongful arrest in any manner.The Petitioner had to spent 11 days in jail due to this wrongful arrest and his own complaints to the police were not responded to.Such an arrest is in violation of the dictum of Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar and Anr. (2014) 8 SCC 273.It prescribes notice under section 41A as a requisite established by law which has to be followed.This act of the Respondent also affected right of personal liberty of a person by the Constitution of India. No acquittal or release can soothe the embarrassment, humiliation, loss of dignity and reputation of the petitioner and his family in front of the neighbors and other people who witnessed the arrest due to the social stigma attached to it.Advocates appearing on behalf of the Petitioners are Ajay Kumar Pipania, Aaksh Sethi, Madhurima Soni, Aditya Sharma, Parcco Puniyani and Nikita Garg.
The counsel on behalf of the Respondent filed a late apology in form of an affidavit which was noted as unqualified or unreserved and labeled as a “last resort” and “no contrition in the apology”.The court would have accepted the apology if it was made in the first instance not when it was the last resort and when the Petitioner already suffered for days in prison and is currently out on bail.
The High Court Of Delhi held that the arrest in question is illegal and in violation of the guidelines laid down in Arnesh kumar case.The Respondent police officer was sentenced to a simple imprisonment of one day along with a fine of rupees two thousand considering that he is serving with the Delhi Police for seven years and has a long career ahead. Nominal cost of rupees fifteen thousands must be paid to the Petitoner by the Respondent within four weeks.The sentence is also kept in abeyancefor 2 months to provide ample opportunity for the Respondent to challenge the order.The petition along with all other standing orders were disposed off.