Point of Law: If provisions of Section 41 CrPC which authorises police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, wrong committed by police officers intentionally or unwittingly would be reversed and number of cases which come to Court for grant of anticipatory bail will substantially reduce.

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, the petitioner has prayed for following substantive reliefs:-

“i. That the action of the respondent authorities arresting the petitioner in FIR No.5 of 2022 registered at Police Station Bharari, Shimla under sections 419, 420, 201 and 120-B of Indian Penal Code may kindly be quashed and set aside and be declared illegal and unlawful.

ii. That the FIR No.5 of 2022 registered at Police Station Bharari, Shimla under sections 419, 420, 201 and 120-B of Indian Penal Code may kindly be quashed and set aside qua the present petitioner or in alternate the FIR's registered at various police station regarding the leak question paper in Police Constable Recruitment Exam Paper may kindly be clubbed in the interest of justice and fair play.

iii. That the contempt notice may kindly be issued to the respondent authorities as the action of the respondent department arresting the petitioner is in violation of the Judgment Passed by the Hon'ble Supreme Court in Arnesh Judgment (2014) 8 SCC 273.

iv. That the respondent may kindly be directed to release the petitioner in FIR No.5 of 2022 registered at Police Station Bharari, Shimla under sections 420, 120 B, 201 and 120-B of Indian Penal Code as his arrest in unlawful.”

2. The ground on which above noted reliefs have been claimed by the petitioner can be summarised as under :-

a. Arrest of petitioner in the same case in which he was bailed out earlier is abuse of power and against the constitutional safeguards available to the petitioner. The arrest of petitioner is just to circumvent the bail order passed by the learned Additional Sessions Judge-III, Kangra at Dharamshala.

b. The arrest of petitioner in FIR No.5 of 2022 registered at Police Station Bharari, Shimla is against the dictum of law in Arnesh Kumar vs. State of Bihar and another reported in (2014)8 SCC 273 and Arnab Ranjan Goswami vs. Union of India & Ors, reported in (2021)2 SCC 427.

c. The arrest of petitioner is in violation of Section 41-A of the Code of Criminal Procedure (for short “the Code”).

d. The manner of arrest in the case of petitioner is gross abuse of power. He was arrested in arbitrarily and malafide manner without observance to the due procedure of law.

3. Brief facts necessary for adjudication of petition are that a case was registered at Police Station Gagal, District Kangra, H.P., on 05.05.2022 vide FIR No. 41 of 2022, under Sections 420 and 120-B of the IPC (for short, “1st FIR”) alleging interalia that the question paper meant for written examination scheduled to be conducted during recruitment process for the posts of Constables and Drivers in Police Department of the State of Himachal Pradesh had been leaked a day or two before the date of examination i.e. 27.3.2022. Many persons were suspected to be involved in the criminal conspiracy and commission of offence. During investigation of 1st FIR some arrests were made. The complicity of petitioner was also found and he was also arrested on 09.06.2022. Petitioner remained in custody in above said case till 31.07.2022. He was released on bail on 01.08.2022.

4. During the course of investigation of 1st FIR certain facts were stated to have been discovered during the interrogation of the accused persons revealing intra district ramification of the scam. The Superintendent of Police, Kangra had apprehended the possibility of jurisdictional issues of trial courts and since CID Police Station Bharari exercised jurisdiction all over the State, it was requested to register the case keeping in view possible legal implications. Accordingly, on 07.05.2022 another FIR bearing No. 5 of 2022, under Sections 420 and 120-B of the IPC was registered at Police Station CID , Bharari, District Shimla (for short, “2nd FIR”). After his release on bail in 1st FIR petitioner was arrested in 2nd FIR on 02.08.2022. Presently the petitioner is in judicial custody in 2nd FIR.

5. In the back drop of aforesaid facts, the petitioner has approached thi