Seeking a direction to the respondent police not to harass the petitioners in Crime No.35/2016 on the file of the Kaliyakkavilai Police Station, Kanyakumari District without adhering to the mandatory provisions of law contemplated under Section 41(A) of the Code of Criminal Procedure Code, the petitioners have come up with this petition.

2. Heard Mr. S.C. Heroldsingh, learned counsel appearing for the petitioners.

3. It is the case of the petitioners that a regular FIR in Crime No.35 of 2016 under Sections 406, 498(A) and Section 4 of the Dowry Prohibition Act has been registered against the petitioners by the respondent police and that the respondent police should not harass the petitioners.

4. The Code of Criminal Procedure nowhere contemplates a remedy titled "not to harass". However, such jurisprudence has been developed by this Court over a period of time in exercise of power under Section 482 Cr.P.C, to deal with a situation where the police receive a complaint from a person and without registering an FIR, keep it pending and frequently call the adverse party to the police station in the guise of enquiry. This practice has been consistently deprecated by the Court and therefore, the Madras High Court has developed a "not to harass" jurisprudence to give minimum protection to the person against such high-handedness of the police.

5. Even though I have my own reservations on the legality of passing an order of "not to harass", I do not want to upset the apple cart now and in an appropriate case, the matter requires to be authoritatively dealt with by not less than a Division Bench. Once a regular FIR has been registered, the question of 'not to harass' will not arise, because the expression 'harassment' is so subjective that it cannot be encapsulated in an objective criteria.

6. When someone lodges a complaint, the bonafides of which is doubted by the Police Officer, he may choose to make a preliminary enquiry. This happens mostly in cheating cases, because, experience shows that, people frequently rush to the Police for help even in purely civil and commercial transactions. If Police do not register an FIR immediately, the complainant rushes to this Court under Section 482 Cr.P.C. for a direction to register an FIR. When a direction to enquire is issued by this Court on the complainant's petition, the Police perforce will have to call the adverse party for enquiry. Immediately, the adverse party rushes to this Court with a "Not to Harass" petition. If a "Not to Harass" order is passed, that is used as a shield by the adverse party to avoid appearance for Police enquiry. On one hand, this Court directs Police to conduct an enquiry on the complaint of a person and in the same breath, if a "not to harass" order is passed, at the instance of the adverse party, the Police will only be in a quandary.

7. Mr. S.C. Heroldsingh, learned counsel appearing for the petitioners relied upon the Judgment of the Supreme Court in Arneshkumar vs. State of Bihar, reported in (2014) 3 MLJ (Crl) (SC), wherein the Supreme Court has directed the police officers to follow the provisions of Section 41(A) Cr.P.C lest face departmental and contempt actions. The learned counsel further submitted that in view of the above said judgment, it is the mandatory duty of the police officer to follow the provisions of Section 41(A) Cr.P.C, and they cannot harass the petitioner. Learned counsel also submitted that this Court should give a positive direction to the Police to follow Section 41A of the Code of Criminal Procedure. This Court is also aware of the decision in Hema Mishra vs. State of U.P. [2014 (4) SCC 453], which came prior to Arnish Kumar, wherein Section 41A has been considered.

8. I am unable to countenance this submission for the following reasons. Once an FIR is registered under Chapter XII of the Code of Criminal Procedure, the investigation has to go through the mandates laid down in the said Chapter. Section 41A will come into play only whe