High Court guidelines on arrest, detention, bail in criminal cases

 The High Court of Jammu and Kashmir and Ladakh has framed guidelines on arrest, detention and bail of persons accused in criminal cases for the guidance of the Magistrates and the subordinate Criminal Courts.

The guidelines have been issued in compliance to the directions of the Supreme Court in a judgment titled Md. Asfak Alam vs State of Jharkhand passed in a criminal appeal, said a notification issued by the Registrar General of High Court, Shahzad Azeem.

“ Both the Governments of Union Territory of Jammu & Kashmir and Union Territory of Ladakh to instruct its police officers not to

automatically arrest accused when a case under Section 498-A Indian Penal Code 1860, is registered but to satisfy themselves about the necessity for arrest under parameters laid down and flowing from Section 41 CrPC,” the notification said.

Section 498-A of Indian Penal Code deals with cruelty to married women by their husbands or in-laws while Section 41 of Code of Criminal Procedure lays the conditions for when police may arrest a person without warrant.

The guidelines underscore that all police officers be provided with the check list containing specified sub-clauses under Section 41(1)(b)(ii) of CrPC, which deals with additional circumstances where an arrest is necessary.

The police officers shall forward the checklist duly filled and furnish the reasons and materials which necessitated the arrest while producing the accused before the Magistrate for further detention.

The Magistrate shall peruse the report furnished by the police officer and only after recording satisfaction can authorize further detention. The decision not to arrest an accused, the guidelines said, be forwarded to the Magistrate within two weeks from the date of the filing 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.

In terms of Section 41-A CrPC notice for appearing before the police be served on the accused within two weeks from the date of filing of the case, which may be extended by the Superintendent of Police of the district for• the reasons to be recorded in writing.

Failure to comply with the directions shall render the police officers concerned liable for departmental action and they shall also be liable to be punished for contempt to be instituted before High Court.

Authorising detention without recording reasons by the Judicial Magistrate concerned shall be liable for departmental action by the High Court.

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


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