SC Directs Police Chiefs To Take Action Against Erring Officials For Arrests In Violation Of S.41/41A CrPC & SC Guidelines

"An uncontrolled power is the natural enemy of freedom."

- Harold Laski in 'Liberty in the Modern State'

It is a matter of paramount importance having a direct bearing with far reaching implications on all the citizens directly affecting their personal liberty that the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Satender Kumar Antil vs Central Bureau of Investigation & Anr in Miscellaneous Application No. 2034/2022 in MA 1849/2021 in SLP(Crl) No. 5191/2021 and cited in 2024 LiveLaw (SC) 600 that was pronounced as recently as on 6-8-2024 has directed explicitly without mincing any words whatsoever that every Magistrate and Sessions Judge to inform its jurisdictional Principal District Judge about any form of non-compliance by the police in following the arrest guidelines laid down in the Satender Kumar Antil's case within 1 week of recording such non-compliance. It was also directed by the top court that the reports regarding the non-compliance should ultimately be forwarded to the Head of Police through the Registrar General of the High Court. The Apex Court also further mandated that the Head of the Police should then take action against the erring officials. Very rightly so!

It must be borne in mind that the Apex Court in the landmark case of Satender Kumar Antil vs CBI (2022) 10 SCC 51 : 2022 LiveLaw SC 577 had issued a slew of most commendable directions on July 11, 2022 to prevent arbitrary arrest and to streamline the process of granting bail very rightly upheld the cardinal principle of "bail is the norm, jail is an exception". These commendable directions issued by the Apex Court meant for the investigating agencies and also for the courts which may be subject to State amendments are as follows:-

a) The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails.

b) The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the CrPC and the directions issued by this Court in Arnesh Kumar v State of Bihar & Another (2014 (8) SCC 273). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.

c) The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the CrPC. Any non-compliance would entitle the accused for grant of bail.

d) All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the CrPC while taking note of the order of High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of 2020 to comply with the mandate of Section 41A of the CrPC.

e) There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the CrPC.

f) There needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth v The State of Uttar Pradesh and another (LL 2021 SC 391).

g) The State and Central Governments will have to comply with the directions issued by this Court from time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.

h) The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Cr.P.C., facilitating the release.

i) While insisting upon sureties the mandate of Section 440 of the CrPC has to be kept in mind.

We also must not gloss over that John EED in his 'Essays on Freedom and Power' very rightly propounded that, "Liberty is one of the most essential requirements of the modern man. It is said to be the delicate fruit of a mature civilization. It is the very quintessence of civilized existence and essential requirement of a modern man."

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Bench of Apex Court comprising of Hon'ble Mr Justice MM Sundresh and Hon'ble Mr Justice Aravind Kumar sets the ball in motion by first and foremost putting forth in para A that, "Heard learned Amicus Curiae, Sh. Siddharth Luthra, and the learned counsels appearing for the respective parties. It is very unfortunate that despite more than sufficient time being given, some of the parties have still not complied with the directions issued by this court vide earlier orders dt. 11.07.2022, 03.02.2023, 21.03.2023, 02.05.2023 & 13.02.2024 by duly filing their respective compliance affidavits."

On a cautionary note, the Bench then notes in para B of this robust judgment that, "Learned counsels appearing for the non-complying parties have once again made a fervent plea that due compliance will definitely be made by the next date of hearing. Considering the aforesaid submission, we wish to give one last and final opportunity, and are deferring from passing any adverse orders. We make it clear that if due compliance is not made and reported by the next date of hearing, the consequence would follow."

Do note, the Bench notes in para C of this noteworthy judgment that, "The learned Amicus has filed reports dt. 03.08.2024 & 05.08.2024 before this Court after a detailed analysis of the Affidavits/Reports filed by the States, Union Territories (hereinafter referred to as UTs) and the High Courts, that were filed in pursuance to the directions passed by this Court vide order dt.13.02.2024."

While striking the right note, the Bench notes in para D of this remarkable judgment that, "It is submitted that subsequently, some of the States/UTs and High Courts have filed their respective Affidavits and Additional Affidavits which have already been compiled and filed separately. As a consequence of the Affidavits so filed, directions may be issued to the respective States/UTs and High Courts who are yet to comply with the directions of this Court as issued earlier vide orders dt. 11.07.2022, 03.02.2023, 21.03.2023, 02.05.2023 & 13.02.2024."

Most lamentably, the Bench candidly concedes in para E of this refreshing judgment that, "The learned Amicus also submitted that apart from the directions sought for against the High Courts and States/UTs, general directions may be issued with respect to Undertrial Prisoners (hereinafter referred to as UTPs) so as to ensure that all the High Courts and States/UTs are in full compliance of the SOP for UTPs as laid down by this court vide order dt.13.02.2024. He further submitted that it is extremely unfortunate that UTPs despite getting bail, are not being released from the prison since no family member or friend is coming forward to stand as surety or furnish bonds on the UTP's behalf."

Most significantly and most remarkably, the Bench then encapsulates in para F what constitutes the cornerstone of this notable judgment postulating that, "We are in full agreement with the aforesaid submission, as it is indeed a palpable situation which continues to be faced by the UTPs. Further, directions are also required to be issued to set in place an Institutional Monitoring Mechanism to ensure full and complete compliance of not only the directions which have already been passed, but also those directions which may be passed by this Court in the future as well. Accordingly, it is directed as follows: -

i. That all the High Courts and States/UTs must ensure compliance of the SOP for UTPs as laid down by this court vide order dt.13.02.2024, in those cases where no family member or friend is coming forward to stand as surety or furnish bonds on the behalf of the UTPs.

ii. NALSA shall suggest a policy for implementing the direction sought for by the Amicus in Para.14(b) of the Report dt. 03.08.2024;

iii. To ensure implementation of the mandate of Para.100.2 & 100.3 of Satender Kumar Antil vs. CBI & Anr., (2022) 10 SCC 51, the following directions must be carried out:

a. Every Magistrate and/or Sessions Judge shall inform its jurisdictional Principal District Judge about any form of non-compliance of Para.100.2 or Para.100.3 of Satender Kumar Antil vs. CBI & Anr. (2022) 10 SCC 51, within 1 week of recording such non-compliance;

b. Every Principal District Judge shall maintain a record of details of such non-compliances received from the concerned Magistrates;

c. Every Principal District Judge upon receipt of details of non-compliance by the concerned Magistrate shall, on a monthly basis, forward the same to the Registrar General of the concerned High Court and to the Head of Police in the concerned District;

d. The Head of Police of the concerned District shall, upon receipt of details of non-compliance of Para.100.2, take action against the erring officer as soon as possible and inform the concerned Principal District Judge;

e. The Registrar General of each High Court shall, upon receipt of details of such non-compliance of Para.100.2 and/or Para.100.3, place the same before the Committee for "Ensuring the Implementation of the Decisions of the Apex Court" for further action and forward it to the higher Police Authority. In those High Courts where such a committee is not currently in place, the same shall be constituted by the respective High Court."

It would be instructive to note that it is stated in para 100.2 of Satender Kumar Antil vs CBI case decided in 2022 that, "The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action." It is further stated in para 100.3 that, "The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail."

It is worth noting that while dwelling on the directions for Union of India to be complied with, it is directed in para 37 by the Bench that, "(i) The Union of India vide order dt. 13.02.2024 was already asked to inform this Court as to whether any Bail Law (in terms of Para.100.1 of Satender Kumar Antil vs. CBI & Anr. (2022) 10 SCC 51) is in contemplation or under preparation. However, no response has been solicited from the Union of India with respect to the progress achieved in specific reference to the preparation or framing of a Bail Law. Hence, the Union of India shall file an affidavit to that effect indicating the progress achieved in this regard.;

(ii) The Union of India must inform this Court as to whether any assessment has been made to ascertain the requirement of creating additional Special Courts (CBI) in Districts with high pendency of cases, along with requisite data;

(iii) An SOP which was framed by the Central Government to alleviate the situation of UTPs was already taken on record by this Court vide order dt. 13.02.2024 and subsequently, directions were also issued. However, it is unknown as to the extent to which the said SOP has been implemented and given effect to. Hence, the Union of India shall file an affidavit in order to indicate to this court as to the level, efficiency and effectiveness of the implementation of the aforesaid SOP.;

(iv) The Union of India must provide specific details with respect to the allocation of funds to all the States through the Central Nodal Agency for effective implementation of the Scheme for support to poor prisoners as laid down by this Court in Para. I of the order dt.13.02.2024;

(v) The Union of India must clarify the concern raised by the State of Punjab with respect to how the funds from SNA Account of Nodal Officer are to be transferred to the beneficiaries (as per Para. 6 of Affidavit dt. 30.07.2024 filed by the State of Punjab)."

Be it noted, the Bench notes in para 38 on directions for CBI to be complied with that, "(i) The CBI must provide clarification regarding the details of non compliance of Para.100.2 by the erring Officer in CBI Case No.02 of 2023 before Special Judge (Anti-Corruption), CBI, Dehradun and to provide details of action taken against the said erring officer;

(ii) The CBI must provide an updated and detailed Affidavit as required vide order dt. 02.05.2023 in consonance with Model tabular chart be filed."

While concluding the Bench then finally holds in para H of this commendable judgment that, "We wish to take up this matter in a phased manner, keeping in view the large number of parties. The case will be taken up on a staggered basis. On 15.10.2024, the following parties in the table annexed below will be heard. The remaining parties in the tabular chart annexed at Page 9 of the Compliance Report of the Learned Amicus dt. 03.08.2024, will be heard on subsequent days after the initial hearing fixed for 15.10.2024 takes place."

In a nutshell, we thus see that the Apex Court in this leading case very rightly asks police chiefs to take action against erring officials for arrests in violation of S.41/41A CrPC and Supreme Court guidelines. Due to paucity of space it was not possible to discuss about the directions issued to every State separately. It thus merits no reiteration that this will definitely go a long way in bringing accountability in the functioning of the police and so has to be lauded for its sincere efforts so that the personal liberty of citizens is not mercilessly hijacked by police officials and those who err are made to face the long arms of the law and punished for not adhering to the directions laid down by the Apex Court in the landmark case of Satender Kumar Antil and so also Arnesh Kumar and other such commendable cases! No denying or disputing it!