Jammu & Kashmir High Court frames guidelines to curb unnecessary arrests; no automatic arrest in Section 498A cases

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The High Court of Jammu and Kashmir and Ladakh has framed guidelines on arrest, detention and bail of persons accused in criminal cases.

The directions so issued are applicable to all criminal cases where the offence alleged is punishable with an imprisonment term that could extend up to seven years, with or without a fine.

According to a notification issued by the High Court’s Registrar General, the guidelines were framed in line with directions given by the Supreme Court in Md. Asfak Alam v. State of Jharkhand, in which the top court had called for authorities to refrain from making unnecessary arrests.

The High Court has also cautioned that any failure to comply with these guidelines would render the errant police officers liable for departmental action and also for contempt of court.

Further, if any magistrate authorises the detention of an accused without recording reasons, such magistrate would also be liable for departmental action by the High Court, the guidelines added.

The guidelines issued are as follows.

Police officers should not automatically arrest persons accused of the offence under Section 498A of the India Penal Code (IPC), which deals with cruelty to married women by their husbands or in-laws.

The guideline adds that the police must first satisfy themselves that it is necessary to arrest the accused in view of the criteria in Section 41 (when police may arrest without a warrant) of the Code of Criminal Procedure (CrPC).

Police officers should be informed of the checklist in Section 41 (1) (b) (ii) of the CrPC, which deals with additional circumstances where an arrest is necessary. When an accused is produced before a magistrate for further detention, this checklist and the reasons or materials that necessitated the arrest should also be forwarded to the magistrate.

The magistrate can authorise further detention of the accused only after examining the report furnished by the police and recording its satisfaction on the need for further detention.

If a decision is made not to arrest an accused after the institution of a case, this should be intimated to the magistrate within two weeks. This may be extended by the superintendent of police for reasons to be recorded in writing.

After a case is filed, the accused should be served a notice to appear before the police under Section 41A, CrPC (which deals with situations where the arrest of a person is not required) within two weeks. This time period may be extended by the superintendent of police for the reasons to be recorded in writing.

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