Gauhati High Court directive on arrest and detention

 STAFF REPORTER

GUWAHATI: Pursuant to the directions issued by the Supreme Court of India on July 31, 2023, the Gauhati High Court has directed all courts dealing with various offences under its jurisdiction to ensure that the police do not arrest the accused unnecessarily and magistrates do not authorize detention casually and mechanically.

The Gauhati High Court has directed that the police shall not automatically make an arrest when a case under Section 498-A of the IPC is registered. The police shall first satisfy themselves about the necessity for arrest under the parameters laid down in the Amesh Kumar versus State of Bihar case.

“All police officers shall 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 filled and furnish the reasons and materials that necessitated the arrest while forwarding or 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 will the magistrate authorize detention. The decision not to arrest an accused shall 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,” the High Court said.

The High Court said, “The notice of appearance in terms of Section 41-A CrPC shall 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.”

The High Court also said, “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. Authorizing detention without recording reasons as aforesaid by the judicial magistrate concerned shall be liable for departmental action by the Gauhati High Court.”

The directions as aforesaid shall not only apply to the case under Section 498-A IPC or Section 4 of the Dowry Prohibition Act but also to such cases where the offence is punishable with imprisonment for terms which may be less than seven years or which may extend to seven years, whether with or without a fine, the high court said.

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