Tuesday 27 January 2015

Contempt notice against police by Magistrate for not complying with arrest procedure laid down by Supreme court

MUMBAI: In probably the first time, a magistrate refused to authorize the detention of two businessmen in a tax evasion case and instead, issued a contempt notice against the investigation officer for failing to comply with arrest procedures. Metropolitan magistrate C V Marathe asked sub-inspector S Koli to explain why a report of contempt of court should not be sent to the Bombay high court. 

"When an accused is produced before a magistrate, the police officer concerned has to furnish the facts, reasons and conclusions for arrest and the magistrate, in turn, is to be satisfied that they comply with the condition laid down under Section 41 of CrPC. Only after that the magistrate can authorize the detention of an accused," said the magistrate, referring to a July 2014 Supreme Court order. "In this case, the investigation officer did not follow the procedure." 

The apex court last year laid down guidelines in criminal cases where the punishment is up to seven years in jail. In such cases, the officer has to issue a notice to the suspect to appear before him. If a person appears before the officer, he may not be arrested, unless the police officer feels the arrest is necessary; he must record the reasons in writing. The officer has to make a memorandum of arrest, with details. The form has to be attested by a family member or a prominent member of the area. "The SC rules were meant to avoid unnecessary harassment of people," said advocate Mohan Tekavde, counsel for the accused. Businessmen Dharmesh Joshi and Nitin Raikar were arrested by the V P Road police on December 16, 2014, following a complaint by the assistant commissioner of sales tax that they had evaded tax allegedly by preparing false bills. In court, the magistrate noted procedural lapses. In the arrest and remand forms, the date and timing of the arrest were not mentioned. The reports were not attested by a witness and notices under CrPC were not issued to the accused before arrest. 
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