While using power to arrest an individual, there is a duty to duty to observe the safeguards under Section 41 of the CrPC: Kerala High Court

The Kerala High Court has upheld that while using power to arrest an individual, there is a duty to duty to observe the safeguards under Section 41 of the CrPC through a Division Bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P in the case of Muhammed Rafi v. Satheesh Kumar M.V (CON.CASE(C) NO. 808 OF 2022)


The Court was hearing a contempt petition filed by a man charged with violating Sections 406 and 420 of the IPC. The petitioner claimed that he was arrested in complete violation of the Supreme Court’s decision in [Arnesh Kumar v. State of Bihar & Anr. [2014 (3) KHC 69]. He further claimed that he was not given notice before being arrested, as required by Section 41A of the CrPC.

The petitioner’s counsel, Anand Kalyanakrishnan and C. Dheeraj Rajan, argued that the respondent Police Inspector had also violated a Sessions Court decision directing the Station House Officer to give notice under Section 41A if the petitioner’s presence is necessary for any lawful purpose. Despite such direction, the petitioner said, he was detained in March 2022 and remanded to judicial prison after appearing before the Magistrate. He further stated that he was imprisoned for 15 days as a result of the illegal arrest. As a result, the petitioner claimed that because the arrest was in complete breach of the Arnesh Kumar guidelines and the Sessions Court ruling, the respondent deserved no leniency while demanding adequate compensation for his two weeks in jail.

The respondent Inspector defended his actions by claiming that the petitioner was facing serious accusations and that his immediate arrest was required to collect the belongings and avoid imposing external influence on the complainant and witnesses. Because the Bench was dissatisfied with this response, Senior Government Unnikrishnan Unnikrishnan Kaimal requested permission to file an extra affidavit, which was granted. According to the second affidavit, the Sessions Court order was issued in 2018, but the FIR was filed in 2022, and both the Investigating Officer and the Station House Officer were new to the station. As a result, they had no prior knowledge of the order, and neither the petitioner, his relatives, nor his Advocate had told them of it. As a result, the respondent demanded an apology for his failure to understand the directive.


The Court noted that the power to arrest an individual vested in the State and exercised through its police officers at various stages of the criminal justice process could not be used as a punitive tool or as a measure of harassment unmindful of the duty to take into account the safeguards provided under Section 41 of the Cr.P.C. before the arrest of a citizen.

It reminded the authorities concerned that any attempt to circumvent the orders of the court is derogatory to the very dignity of the court and administration of justice. The directions issued by the courts, particularly by the Supreme Court have to be complied with without any exception or justification. The directions so issued are binding and must be obeyed by the parties and all concerned stricto sensu.

As a result, the Court deemed it appropriate to accept the affidavit of unconditional remorse and dismiss the contempt of court proceedings. However, it was noted that this would not affect the petitioner’s right to file appropriate legal processes to seek compensation for the acts committed against him.

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