2024 (7) TMI 1590 - HC - Indian Laws

Delhi HC allows writ petition challenging arrest despite alternative remedy available for Section 41A violation

Bibhav Kumar Versus State of NCT of Delhi

Bibhav Kumar Versus State of NCT of Delhi - 2024:DHC:4838 ISSUES PRESENTED and CONSIDEREDThe core legal issues considered in this judgment include:Whether the arrest of the petitioner was illegal due to non-compliance with Section 41A of the Code of Criminal Procedure (Cr.P.C.) and the mandates established in Arnesh Kumar v. State of Bihar and Amandeep Singh Johar v. State of NCT of Delhi.Whether the petitioner is entitled to compensation for the alleged illegal arrest.Whether departmental action should be initiated against the officials involved in the arrest.Whether the writ petition is maintainable in light of the availability of an alternative remedy.ISSUE-WISE DETAILED ANALYSIS1. Legality of Arrest and Non-Compliance with Section 41A Cr.P.C.The petitioner argued that his arrest was illegal due to non-compliance with Section 41A of the Cr.P.C., which requires notice to be given before arrest in certain cases. The petitioner relied on precedents set in Arnesh Kumar v. State of Bihar, which emphasized the necessity of compliance with Section 41A to prevent unnecessary arrests.The Court noted that the issue of non-compliance with Section 41A was previously raised by the petitioner during his police custody remand and was addressed by the Magistrate in an order dated 19.05.2024. The Magistrate had rejected the petitioner's application on this ground, and the petitioner had not challenged this decision in the Sessions Court.The Court acknowledged the petitioner's claim of breach of fundamental rights under Articles 21 and 22 of the Constitution, which was not limited to non-compliance with Section 41A but also included allegations of mala fide arrest.2. Entitlement to CompensationThe petitioner sought compensation for his alleged illegal arrest. The Court did not make a determination on this issue at this stage, as it required a detailed examination of the merits of the case, which would occur after the State's reply.3. Departmental Action Against OfficialsThe petitioner requested that departmental action be taken against the officials responsible for his arrest. Similar to the compensation issue, the Court deferred any decision on this matter until further proceedings.4. Maintainability of the Writ PetitionThe respondent argued that the writ petition was not maintainable due to the availability of an alternative remedy, as the petitioner had not challenged the Magistrate's order in the Sessions Court. The Court referred to the principles established in Radha Krishan Industries v. State of H.P., which outline exceptions to the rule of alternative remedies, particularly when fundamental rights are alleged to be violated.The Court concluded that the petition was maintainable at this stage for the purpose of issuing notice to the respondent, given the petitioner's claims of fundamental rights violations.SIGNIFICANT HOLDINGSThe Court held that:The writ petition is maintainable for the issuance of notice to the respondent, despite the availability of an alternative remedy, due to the alleged violation of fundamental rights.The merits of the petition, including the legality of the arrest, entitlement to compensation, and departmental action against officials, will be considered after the State files its reply.In conclusion, the Court ordered the issuance of notice to the State, requiring a reply within one week, and scheduled the matter for further hearing on 08.07.2024.