S. Sree Kumar vs State

Moushumi Bhattacharya, J

The petitioner/accused and the Investigating Officer appear in person by reason of the ongoing cease work in the local Bar.

The petitioner/accused was arrested on charges of cheating, criminal breach of trust and forgery more particularly under Sections 408, 420, 468 and 471 of The Code of Criminal Procedure, 1973. The accused was arrested and produced before the learned Chief Judicial Magistrate, Port Blair on 4th November, 2019 whereby the application for bail of the accused was rejected and the accused was remanded to police custody and by an order dated 7th November, 2019 the accused was sent to Judicial Custody till 20th November, 2019.

Upon reading the orders dated 4th November, 2019 and 7th November, 2019, it appears that the charges against the accused are false representation and manipulation of documents with regard to the proprietorship of Haddo Point Bar and Restaurant. The case was registered against the accused on 5th December, 2018 by one G. Mohan Das with regard to commission of offence of cheating, forgery etc. The Learned Chief Judicial Magistrate was of the view that there is a prima facie case of criminal breach of trust and the involvement of the accused with the alleged crime. It is submitted by the accused person that notice under section 41 A of The Code of Criminal Procedure, 1973 has not been complied with by the concerned Police Officer before the accused was arrested on 3rd November, 2019.

The Investigating Officer appearing in person submits that the offence is serious in nature and that several searches have been conducted at various places for the relevant documents after which certain original documents were found in the office of the Deputy Commissioner. The Investigating Officer submits that notice under section 41 A of The Code of Criminal Procedure was not given since the cumulative nature of the offences were taken into consideration by the Police Officer. It is submitted that the Case Diary contains compliance by the accused of the notice given under section 160 of The Code of Criminal Procedure.

Having heard the petitioner/accused and the Investigating Officer and perused the documents on record including the Case Diary, this court is of the view that non-compliance of the requirement of section 41 A of The Code of Criminal Procedure is an issue vital to the matter. Admittedly, no notice of appearance before the Police Officer under section 41 A has been given to the accused and the orders dated 4th November, 2019 and 7th November, 2019 also did not record any such notice being given under section 41 A of The Code of Criminal Procedure.

The Supreme Court of India in Arnesh Kumar -vs- State of Bihar and another reported in (2014)8 SCC 273 placed emphasis on ensuring that Police Officers do not make unnecessary arrests and likewise detentions are not mechanically authorized by Magistrates. In furtherance of such objective the Supreme Court formulated certain directions which included the following:

(The paragraphs are reproduced)

"(6) Notice of appearance in terms of Section 41 A of Cr. P.C. 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;

(7) 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".

The points laid down with regard to compliance of section 41 A of the Cr.P.C. by the Supreme Court in Arnesh Kumar -vs- State of Bihar and another were revisited in Dr. Rini Johar and another -vs- State of M.P. and others reported in (2016) 11 SCC 703 where the Supreme Court noted that there is a flagrant violation of the mandate of law enshrined under section 41 and 41 A of the Cr. P.C. and that the Investigating Officer cannot flout the law in a brazen manner.

Besides the law laid down by the Supreme Court with regard to the compliance of section 41 A of The Code of Criminal Procedure, this court also finds that on the facts, the accused was remanded in police custody for four days by the order dated 4th November, 2019 and until 20th November, 2019 by the order dated 7th November, 2019 by the Chief Judicial Magistrate, Port Blair. Today is the last day of the Judicial Custody.

As would appear from the submissions made by the accused, the accused is not only a resident of Port Blair but also has assets and properties in Port Blair. It is also relevant that the I.O. has found certain documents relevant to the case in the office of the Deputy Commissioner and further that the accused has complied with the requirement of section 160 of the Cr. P.C. which deals with the power of the police authorities to require the attendance of witnesses.

This court is prima facie satisfied that there is no imminent likelihood of the accused fleeing from justice or any pressing reason for the accused to be kept in custody for a further period of time.

In view of the above, this court directs that the accused/petitioner namely S. Sree Kumar shall be released on bail upon furnishing a bond of Rs. 10,000/- with two sureties of like amount to the satisfaction of the learned Chief Judicial Magistrate, Port Blair.

It is further directed after being released on bail, the accused/ petitioner namely S. Sree Kumar shall meet the I.O. of the case and make himself available for interrogation as and when required. The petitioner will also not tamper with any evidence or intermediate any witnesses.

The application for bail is disposed of in terms of the above.

Let a copy of this order be sent down to the learned court below.