PIL filed alleging unlawful arrests in domestic cruelty cases in Assam

HC asks Government to file detailed affidavit

STAFF REPORTER

GUWAHATI: The Gauhati High Court has directed the State Government to file a detailed affidavit within four weeks clarifying whether persons are being automatically arrested, in contravention of Supreme Court guidelines, by the police in Assam in connection with cases registered under 498-A IPC, which deals with a woman being subjected to cruelty by her husband and/or his relatives.

The court's directive came during hearing of a Public Interest petition (PIL) filed by one Sandeep Chamaria, a resident of Chakreswar Path in the Kamakhya area.

Chamaria has submitted in his petition that various guidelines laid down by the Supreme Court in 2014 are not being followed by the police in Assam for various reasons.

While seeking an affidavit from the State Government, the High Court observed: "This public interest litigation raises an extremely important issue, which is that in spite of major amendments being made in the Code of Criminal Procedure in the year 2010, where Sections 41A, 41B, 41C & 41D have been incorporated, which makes a check on arrests. Moreover, in spite of the directions given by the Apex Court in its seminal judgment in Arnesh Kumar -Vs- State of Bihar & Anr., reported in (2014) 8 SCC 273, the same are not being followed and police still arrests person(s) without following the due process … Arrest is not necessary in every communal case."

The High Court cited the Supreme Court's judgment in the Arnesh Kumar case, which stated inter alia: "Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following direction: All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC; 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 authorizing 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 authorize 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 41-A of CrPC 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 the High Court having territorial jurisdiction."

The Advocate General of Assam, Devajit Saikia, assured the court that an affidavit would be filed by the State Government within four weeks. Hearing of the case will resume on April 19.

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