Quashed

K.a.Unnimon v. State of Kerala

Kerala HC20 Oct 2020WP(C)/20055/2020

Case brief

AI extract

What is this about?

A writ petition challenging the validity of a Section 41-A CrPC notice issued for a monetary dispute. The court observed the notice lacked details of the alleged offence and held that police cannot adjudicate civil disputes, quashing the notice.

What did the court decide?

The writ petition is allowed and the Notice (Exh. P2) is quashed. The police officer is directed to strictly comply with statutory provisions.

K.a.Unnimon Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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TUESDAY, THE 20TH DAY OF OCTOBER 2020 / 28TH ASWINA, 1942

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WP(C).No.20055 OF 2020(F)

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PETITIONER:

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K.A.UNNIMON AGED 28 YEARS, S/O.ARAVINDAKSHAN, KUMARTHUSSERY (H), KUMARAKAM P O, KOTTAYAM-686 563 BY ADVS. SRI.C.A.MAJEED SRI.K.H.ASIF SMT.MOLTY MAJEED SRI.P.B.UNNIKRISHNAN NAIR SRI.RUBEN GEORGE ROCK

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY SPECIAL SECRETARY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001

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2 SUB INSPECTOR OF POLICE, KOTTAYAM WEST POLICE STATION, KOTTAYAM- 686 013

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3 K B UNNIKRISHNAN, AGE AND FATHER'S NAME NOT KNOWN, KURIYIL(H), KUMARAKAM THEKKUM BHAGAM, KUMARAKAM, KOTTAYAM-686563

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SRI KP HARISH SR GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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“CR”

JUDGMENT

Being traumatized by the constant summoning of the petitioner to the Police Station by the 2nd respondent for resolving a monetary dispute that he has with the 3rd respondent, the petitioner has approached this Court with this Writ Petition filed under Article 226 of the Constitution of India.

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To appreciate the grievance of the petitioner, the prefatory facts leading to this petition need to be briefly stated:- The petitioner states that he took the building owned by the 3rd respondent on lease in the month of January 2020 for starting a cold storage. At the time of entering into the agreement for lease, amounts were handed over to the landlord towards security. The petitioner carried out renovations to the building by expending amounts. However, he was not able to start the business as originally planned. He later surrendered the premises to the landlord. Admittedly, no amount was paid by the petitioner by way of rent for the period that the building was in his possession. The petitioner asserts that the landlord did not demand the same. However, after vacating the premises, on the premise that the landlord had filed a complaint against the petitioner, he was summoned to the police

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station. He states that he is being constantly pestered by the police and he was asked to clear off the rent arrears. He states that he was slapped with Ext.P2 notice issued purportedly under Section 41A of the Cr.P.C. calling upon him to appear before the Sub Inspector of Police, Kottayam police station on 25.9.2020. According to the petitioner, the police have no role in the dispute between the landlord and tenant and according to him, issuance of Ext.P2 notice to settle a civil dispute is clearly an abuse of process. He has in the aforesaid circumstances approached this Court seeking directions.

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On instructions, it is submitted by the learned Government Pleader that the 3rd respondent had filed a complaint before the 2nd respondent alleging that some amounts were due from the petitioner. It is in the aforesaid circumstances that the petitioner was summoned.

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I have considered the submissions advanced.

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I find from Exhibit P2 that notice under Section 41(A) of the Cr.P.C

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has been issued by the 2nd respondent calling upon the petitioner to appear before the said officer on 25.9.2020 to enquire into a complaint lodged before the said officer by Sri K.B.Unnikrishnan, the landlord. What is conspicuous from Exhibit P2 is that no mention is made about the offence for which his presence before the Police Officer is required.

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Chapter V of the Code of Criminal Procedure starts with the heading “Arrest of persons”. Section 41 A provides for issuance of notice of

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appearance before the Police Officer. The said provision reads thus:-

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Section 41-A Notice of appearance before police officer.—(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

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(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

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(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

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(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice.”

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7. The aforesaid provision makes it clear that in all cases where the

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arrest of a person is not required under Section 41(1) Cr.P.C, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the

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police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. In case the person upon whom the notice is issued, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice. In other words it is imperative to mention in the notice the offence which is alleged against him.

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It would also be apposite to refer to Section 41(1) of the Code at

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this juncture.

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When police may arrest without warrant.

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(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

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(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or

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(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house- breaking; or

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(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

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(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

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(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

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(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

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(h) who, being a released convict, commits a breach of any rule made under sub- section (5) of section 356; or

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(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

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The respondent has no case that the case of the petitioner falls in any of the instances made mentioned in Section 41(1) of the Code of Criminal

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Procedure.

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The Hon’ble Supreme Court in Arnesh Kumar v. State of

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Bihar , [(2014) 8 SCC 273] had occasion to explain the reason as to why the Parliament introduced Section 41 of the Code in the Statute Book. It was held that as arrest curtails freedom, brings humiliation and casts scars forever, no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. As per Section 41 of the Code, a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured.

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10. In that view of the matter, while issuing a notice under Section 41A of the Code of Criminal procedure, the officer will have to inform the recipient of the nature of offence alleged against him and the necessity to question the person to ascertain facts and circumstances from him in relation to the investigation. He can be directed to appear before the officer at a stipulated time and he can also be called upon to refrain from tampering with the evidence, or from making any threat or inducement to the witnesses and to cooperate with the investigation. He shall be informed that the failure to comply with the notice may render him liable for arrest for the offence alleged against him and mentioned in the notice. If he complies with the direction, the officer shall, in all cases where the arrest of a person is not required under the provisions of the subsection, record the reasons in writing for not making the arrest. Section 41-A Cr.P.C is aimed to avoid unnecessary arrest or threat of arrest looming large on the accused.

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I find that the State Police Chief has issued circular No.7 of 2011 dated 16.03.2011, informing the police officers that though the Amendment to the Code of Criminal Procedure had come into effect with effect from 01.11.2010, the provisions are not being followed strictly. In the circular, the form of notice to be issued as per Section 41A of the Cr.P.C is provided. The form is extracted below for easy reference.

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Form of notice to be issued as per section 41(A) CrPC

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Office Address

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Notice

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In exercise of the powers conferred under sub section (1) of Section 41(A) of CrPC, I hereby inform you that during the investigation of Crime No……………..U/s……………………...registered at…………………………..Police Station, it is revealed that there are reasonable grounds to question you to ascertain facts and circumstances from you. Hence you are directed to appear before me at………….am/pm on……….at……………..Police Station. Date:

Signature

Name and Designation

(seal)

The power under Section 41A of the Code of Criminal Procedure

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gives authority to the police to summon a person if the allegation against him falls with the four corners of the statutory provision. The Police officers who exercise their powers under Section 41A of the Code are bound to act in strict compliance with the provisions of the statute and for that purpose they would do well to follow the form prescribed under the circular as detailed above. Under no circumstance will the police have any authority to interfere with the freedom of an individual by serving a notice under Section 41A . In other words the power given to the police under Section 41A is for sake of preventing abuse of powers and cannot be used to intimidate, threaten and harass a person.

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(See Rohini Biswas v State of West Bengal and Another Order dated

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28.10.2020 in SLP (Crl) 4937 of 2020 ).

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Of course, the Police officer, making an investigation, has power to require the attendance of witnesses invoking section 160 of the Code of Criminal Procedure. He may by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case. He is also entitled under Section 175 of the Code to summon persons for the purpose of the investigation, and any other person who appears to be acquainted with the facts of the case and every person so summoned shall be bound to attend and to answer truly all questions other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

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Under Section 63 of the Kerala Police Act, 2011, the Police may interfere in disputes, which if not resolved early, may culminate into a cognizable offence. The said provision reads thus: Section 63- Police action in disputes which may lead to cognizable offence:

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If anyone brings to notice of the circumstance of a dispute between individuals or groups which if not resolved at the earliest is likely to culminate into a cognizable offence, the Station House Officer shall take steps,-

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(a) to ascertain the facts and circumstances of the matter by interacting with the individuals concerned or to others acquainted with such facts; or

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(b) to give warning in writing to any individuals or all groups involved in the dispute against the doing of any unlawful act in continuation of the dispute; or

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(c) to encourage individuals or groups involved in the dispute to redress the dispute through mutual discussion or through mediation; or

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(d) to advise individuals or groups to approach the competent court having jurisdiction for redressing the dispute;

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(e) to require the individuals or groups to seek redressal of the dispute by appearing before an Executive Magistrate having jurisdiction; or

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(f) to report facts before the Magistrate having jurisdiction for taking suitable action against any individual or all groups under the provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974)

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From the submissions of the learned Government Pleader, it is

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evident that the petitioner was summoned by invoking the powers under Section 41A for inquiring into a complaint filed by a 3rd respondent. There is no

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case that a crime has been registered against the petitioner involving any cognizable offense or for an offense which prescribes punishment of upto 7 years. That is probably the reason why the details of the crime or the offense alleged is not mentioned in the notice. There appears to be considerable merit in the submission of the learned counsel appearing for the petitioner that he is being summoned to the police to resolve a dispute which the police have absolutely no authority to interfere. If any money is due from the petitioner towards arrears of rent or otherwise, the same being a purely civil dispute, the 3rd respondent will have to exhaust his remedies in the Civil Court.

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In that view of the matter, Ext.P2 will stand quashed. The 2nd respondent shall strictly comply with the statutory provisions henceforth if the presence of any person is required in connection with any case in which he is involved.

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This writ petition is disposed of.

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Sd/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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DSV

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