Point of Law :
In all cases where the arrest of a person is not required under Section 41(1) Cr.P.C. the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.P.C. has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.

ORDER :

This Contempt Case is filed by petitioner against the respondent for arresting the petitioner without issuing any notice under Section 41-A of Criminal Procedure Code, 1973 (for short, ‘the Code’) in relation to Crime No.486 of 2019 dt.25.06.2019 registered under Sections 420, 354 and 509 of Indian Penal Code, 1860, thereby violating the judgment of the Supreme Court in Arnesh Kumar vs. State of Bihar, 2014 (8) S.C.C. 273.

2. The petitioner is accused in Crime No.486 of 2019 on the file of P.S. Sanjeeva Reddy Nagar, Hyderabad registered on 25.06.2019 under Sections 420, 354 and 509 of Indian Penal Code, 1860.

3. The said crime was registered against the petitioner on a complaint made by one K. Padma who alleged that petitioner came to her home and stated to her that there are hidden treasures in her home, and asked her to give Rs.10,000/- to him and that he would then bring out the hidden treasures. The complainant also alleged that she and her mother believed the words of petitioner and arranged the money and gave it to the accused and he started digging in their house and after a few days he went missing. She alleged that she searched for him, and after a few days met him and asked him to return the money to her, but he avoided the complainant on one pretext or the other. She also alleged that on 22.06.2019, the petitioner asked the complainant to come to his home at Borabonda and she went there, but she was abused by the brother-in-law of the petitioner who also allegedly dragged her saree and petitioner’s wife also abused her.

4. The petitioner contended that none of the offences alleged against the petitioner are punishable up to seven years and his arrest was therefore not necessary as per the above decision and Section 41-A of Cr.P.C. was also not followed by the respondent who arrested him. He stated that he was remanded to judicial custody on 27.06.2019 at 11:00 hrs. by the III Additional Chief Metropolitan Magistrate, Hyderabad and when questioned by the said Magistrate he informed the Magistrate that Section 41-A was not followed by the respondent. He alleged that the remand case diary was returned by the said Magistrate on 27.06.2019 and thereafter the respondent antidated a notice and pasted it on petitioner’s house on 27.06.2019. He alleged that his family members approached the higher authorities to take action against the respondent on 28.06.2019, but no action was taken. He also alleged that the remand report says that crime was registered on 25.06.2019 that petitioner was arrested on 26.06.2019 and this was done without following due procedure as contemplated under Section 41 and 41-A of the Code, and that this is an abuse of law and violation of Article 21 of the Constitution of India. He alleged that the respondent made the petitioner to sit in the Police Station for full day from 25.06.2019 to 27.06.2019 without providing any facility and he was not even allowed to call any friend or family member and the respondent also behaved rudely with him and abused him. He further alleged that it was incumbent on the part of the respondent to record reasons for making his arrest and the several directions given in Arnesh Kumar (supra) were violated. He alleged that he was innocent of the charges levelled against him and that he is a small businessman running a Stationery Shop at Borabanda, Hyderabad, and because of the said criminal case his entire family came on the road. The counsel for the petitioner reiterated these contentions.

5. Counter-affidavit was filed by the respondent alleging that petitioner was in the habit of deceiving people and that he was inducing people to part with money stating that there is hidden treasure in their house and he would trace it out and was thus cheating the public. He stated that petitioner’s arrest was ‘imminent’, and so, Section 41-A notice was not issued to him so as to prevent him from cheating others. It is also stated that during investigation, based on the statement of