Release persons not arrested as per Arnesh Kumar guidelines: MP High Court

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The Madhya Pradesh High Court has directed Magistrates to release such persons from custody in cases where the guidelines in the Arnesh Kumar judgement were not followed.

The bench of Chief Justice Mohammad Rafiq and Justice Atul Sreedharan had taken cognisance of the overcrowded jails in the state on May 7. The bench had passed orders for releasing prisoners as per the Supreme Court’s directive that they should be released as per the High Powered Committee’s (HPC) guidelines from last year for 90 days.

The amicus curiae Adv. Sanklap Kochar and Senior Advocate CU Singh submitted before the bench that despite the latest recommendations of the HPC after their May 12 meeting, there are still 45,582 prisoners across jails in the state as against their total capacity of 28,675. They both suggested that the HPC ought to consider recommending release of all such convicts on parole, who have either served out one-third of the substantive sentence awarded to them or if sentenced to life imprisonment, have completed incarceration of seven years or more.

They also suggested that the HPC should also consider recommending release of all women prisoners, both convicts and under-trial, regardless of the offence for which they have been convicted and the sentence awarded to them or the maximum sentence that may be awarded to them upon conviction. In response to this suggestion, the Additional Advocate General (AAG) and the Director General of Prisons stated that they will collate the data under all these three categories and provide the same to the HPC within 3 days.

CU Singh and Sankalp Kochar also submitted that the police are not following guidelines of arrest as laid out by the Supreme Court in Arnesh Kumar vs. State of Bihar and another (2014) 8 SCC 273. To this, the court responded, “This explains why there was an enormous increase of approximately 8,000 under-trial prisoners in different jails of the State during the period of lockdown even after release of about 7,500 prisoners-convicts on parole and UTPs on interim bail”. The AAG submitted that he would seek instructions on whether or not the Arnesh Kumar guidelines were being followed.

In Arnesh Kumar judgement, the apex court had observed that the law mandates for the police officer, before making an arrest should record his satisfaction as mandated by Section 41of CrPC that the arrest is necessary:

(i) to prevent such person from committing any further offence;

(ii) for proper investigation of the offence;

(iii) to prevent such person from causing the evidence of the offence to disappear or tampering with evidence;

(iv) to prevent such person from making any inducement, threat or promise to any witness from disclosing facts to the court or to the police officer &

(v) and that unless such person is arrested, his presence in the court when required cannot be secured.

The court had further stated that if in his opinion, the arrest does not satisfy the requirements of Section 41 of the Code, the Magistrate is duty-bound not to authorize his further detention and release the accused after recording his own satisfaction. The apex court had also highlighted the importance of Section 41-A of CrPC which provided that where arrest was not required, the police officer should issue a notice directing the accused person to appear before him at a specific place.

The details of the Arnesh Kumar judgement may be read here.

The Supreme Court deprecated the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 of the Code for effecting arrest. The Supreme Court observed that it seems that police has not learnt its lesson; the lesson implicit and embodied in the Code and is persisting with its colonial approach despite six decades of independence, as the power of arrest is being used as a tool of harassment and oppression of the citizen, which is “one of the lucrative sources of police corruption”.

The bench pointed out that “all these directions issued by the Supreme Court were intended to put a check on the arbitrary power of police in mechanically arresting a citizen accused of committing offences of rather lesser gravity, either without adequate sensitivity or with oblique motive.”

The court, thus, directed the DGP to immediately issue fresh directions to all the Police Stations in the State to adhere to the guidelines issued by the Supreme Court in Arnesh Kumar judgement in letter and spirit. The court also directed all the Judicial Magistrates, upon the accused being produced before them by the police for authorizing further detention, shall mandatorily examine whether or not stipulations contained in both Sections 41 and 41A of the Code, have been followed.

The court stated that if the Magistrate is satisfied that the mandate of both or any of those provisions has not been complied with by the police, he/she shall refuse to authorise further detention of the accused and shall direct immediate release of the accused. More significantly, the court ordered thus,

“if any arrest has been made without adherence to the aforesaid guidelines, the accused concerned would be entitled to directly apply to the court of competent jurisdiction for his regular bail on this ground alone.”

The court also directed the Registrar to again circulate the copy of the judgment of the Supreme Court in Arnesh Kumar judgement along with a copy of this order to all the District Judges of the State, for being served upon the Judicial Magistrates. Further, the court directed the Director of the State Judicial Academy to organise online/virtual programme for sensitising Magistrates and police officers accordingly. The court put the onus on the Director of the state’s police academy to coordinate with the Director of State Judicial Academy to work out the modalities for sensitising the police officers and put the onus on the DGP for compliance.

The amicus curiae and Adv. CU Singh also brought to the court’s attention the order passed by the apex court in its suo moto case of last year, whereby all the Juvenile Justice Boards (JJB) and Children’s Courts were directed to proactively consider whether a child or children should be kept in the Child Care Institutions considering the best interest, health and safety concerns. This included directing JJBs to consider releasing children alleged to be in conflict with law, residing in Observation Homes, on bail unless there are clear and valid reasons for the application of the proviso to Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Accordingly, the court directed Secretary of the MP State Legal Services Authority, Jabalpur to require the Member Secretaries of the respective District Legal Services Authorities to move an appropriate application through their Legal Aid Counsels before the respective Juvenile Justice Boards on behalf of the children in conflict with law, for their release from Observation Homes. The court directed that such applications be decided within 3 days of filing.

The court directed that the copy of the order be forwarded to the Director General of Police, State of M.P., Bhopal; Director General of Prisons, Bhopal; Member Secretary, M.P. State Legal Services Authority, Jabalpur; Director, MP State Judicial Academy, Jabalpur; Director, MP Police Academy, Bhopal and the Registrar General of MP High Court, Jabalpur for necessary action.

The court will hear the case next on May 31.

The complete order may be read here: