The High Court of Jammu and Kashmir and Ladakh has taken a decisive step by laying down guidelines concerning the arrest, detention, and bail of individuals implicated in criminal cases. These guidelines are applicable to
“all criminal cases where the offence alleged is punishable with an imprisonment term that could extend up to seven years, with or without a fine.”
These guidelines have been framed in alignment with the Supreme Court’s directives in the case of “Md. Asfak Alam v. State of Jharkhand”. The apex court, in this case, had explicitly called for
“authorities to refrain from making unnecessary arrests.”
The High Court’s notification, as detailed by the Registrar General, carries a stern warning. It states that
“any failure to comply with these guidelines would render the errant police officers liable for departmental action and also for contempt of court.”
Furthermore, it cautions that
“if any magistrate authorises the detention of an accused without recording reasons, such magistrate would also be liable for departmental action by the High Court.”
A central tenet of these guidelines pertains to cases under Section 498A of the Indian Penal Code (IPC). This section addresses cruelty towards married women by their spouses or in-laws. The guidelines explicitly state that
“Police officers should not automatically arrest persons accused of the offence under Section 498A of the India Penal Code (IPC).”
Instead, they should first
“satisfy themselves that it is necessary to arrest the accused in view of the criteria in Section 41 (when police may arrest without a warrant) of the Code of Criminal Procedure (CrPC).”
Moreover, police officers are directed to be familiar with the checklist in Section 41 (1) (b) (ii) of the CrPC, which deals with additional circumstances where an arrest is necessary. When presenting an accused before a magistrate for further detention, this checklist, along with the reasons or materials that necessitated the arrest should also be forwarded to the magistrate.
In instances where the police opt against arresting an accused after the initiation of a case, this decision must be “intimated to the magistrate within two weeks.” This period can be extended by the superintendent of police, but only “for reasons to be recorded in writing.”
Lastly, upon the filing of a case, the accused should be served a notice to appear before the police under Section 41A, CrPC (which deals with situations where the arrest of a person is not required) within two weeks. This duration can be extended by the superintendent of police, but again, only “for reasons to be recorded in writing.”
In summation, these guidelines by the Jammu & Kashmir High Court underscore the judiciary’s commitment to safeguarding the rights of the accused and ensuring the judicious application of the law.