The failure to produce a checklist in the prescribed format during an arrest does not constitute contempt if the arrest is based on genuine grounds.

ORAL ORDER

(PER : HONOURABLE MS. JUSTICE GITA GOPI)

1. The present application has been filed with prayer to take appropriate action against the respondent No.4 and other erring officials for behaving in a highhanded manner against the present applicant, stating that the action of the respondent No.4 is against the guidelines laid down by the Hon’ble Apex Court in the case of Arnesh Kumar Vs. State of Bihar & Anr., reported in 2014 (8) SCC 273 , and thereby has committed contempt towards the said decision of the Hon’ble Apex Court.

2. Learned advocate Mr. Ekrama H.Qureshi appearing for the applicant has submitted that the applicant is an advocate by profession and belongs to the family residing at rural remote area of village Kotda, Taluka – Nakhatrana in Kutch District. It is submitted that the applicant practices in the lower courts of district Kutch and now at Bhuj and the family members of the applicant used to earn their livelihood by running the shops of tyre repair, service station etc., in the village.

3. It is contended by learned advocate Mr. Qureshi that the respondent No.4 made an arrest of the applicant in connection with the F.I.R. bearing FIR No.11205035230193 of 2023 registered with Nakhatrana Police Station, District Kutch under Section 153A of the Indian Penal Code dated 05.03.2023. It is submitted that the respondent No.4 had not filed any check list before the Magistrate and had made an arrest of the applicant in a highhanded manner and produced him before the Court. He submitted that it is in gross violation of the conditions and directions laid down in case of Arnesh Kumar (supra)

4. Learned advocate Mr. Qureshi further stated that respondent No.4 was mandated by the directions issued by the State Government to produce the check list as per Annexure-V, as promulgated and failure to do so, has led to illegal detention, which has therefore, led to gross violation and ultimately, contempt of Court.

5. Per contra, learned senior advocate Mr. B.B. Naik referring to the provisions of Section 41 of the Code of Criminal Procedure , as referred in Arnesh Kumar (supra) has stressed upon Condition No.4, stating that the check list would be necessary only in case of further detention and that the police could not be obliged to file any check list at the first instance since Section 41 of the Cr.P.C. gives the authority to the police to arrest the person if, he is satisfied with the conditions, as laid down in the said Section.

6. Learned senior advocate Mr. Naik further stated that it is not the case that the respondent No.4 had not produced any check list before the concerned Magistrate while producing the accused and making a prayer for taking the accused in the Court custody, he had filed a check list, which was in a type form and the learned Additional Chief Judicial Magistrate has seen the same and accepted the check list. It is submitted that the grounds for the arrest has been laid down in the check list and the police had come to its own satisfaction that the arrest of the applicant would be necessary, as that would create tension between the two communities since he had some writing placed in the Whatsapp status and therefore, that would have lead to promoting enmity between two groups and ultimately, breach of public order.

7. Heard learned advocates appearing for both the sides and perused the documents on record. The record suggests that while producing the accused in the Court custody, the learned Additional Chief Judicial Magistrate had accepted the custody of the applicant and the check list, which was seen and accepted by the learned Judge. However, it requires to be noted that the State Government vide its notification with the subject of Guideline