Excelsior Correspondent
SRINAGAR, Oct 7: Second Additional Sessions Judge Srinagar Tahir Khurshid Raina, while deciding revision petition against an order of Judicial Magistrate, has held the Investigating Officer of Police Station Women’s Cell Srinagar guilty of violating the various directions of Supreme Court with regard to arrest of an accused under Section 498-A IPC (cruelty against married woman).
In the judgment in Arnesh Kumar case, the Supreme Court while directing all DGPs of the States to comply with the same in letter and spirit had categorically held that failure will entail contempt proceedings against police officer to be instituted in the High Court having territorial jurisdiction.
The clear mandate of the judgment is that there should be no automatic arrest of the accused and his family members unless Investigating officer (IO) draws full satisfaction that arrest is required and inevitable . It’s a strong check on frivolous complaints filed with a purpose to harass accused and his family members and relatives who are sometime even not remotely associated with the matrimonial issues between husband and wife .
2nd Additional Sessions Judge Srinagar, while putting the IO on show cause notice, sought explanation from him within three days as to why a reference of contempt against him be not sent to High Court for initiation of contempt proceedings for violation of SC judgement.
Petitioner husband earlier sought anticipatory bail which was declared infructous by a court on 14th September on the ground that there is no FIR pending against him in Police Station Women’s Cell Srinagar. On the very next day, in the evening complaint was lodged against him and his relatives. The IO just waited for the night to pass and on very next day put him under arrest, while his family members got anticipatory bail.
“In the case diary nowhere any such findings are recorded that why his arrest is required as per requirements of judgment and what are the compelling factors which warrants his custodial interrogation, knowing fully that till yesterday he was on anticipatory bail granted by a Session’s Court for apprehending arrest on a complaint to be lodged by his estranged wife”, 2nd Additional Sessions Judge said.
“Even the contents of the complaint nowhere refers to any such immediate criminal act at his part which warranted his swift arrest, rather an old dispute where in even conciliatory efforts were going on for last 5 months and complainant is putting up at parental house since then”, the court said.
Court further observed, “more unfortunate is that even judicial remand has been given by the Magistrate on same material and his police custody has been extended for one week. And the irony of the situation is that Magistrate gave bail to this accused after one week of arrest on the premise that investigation is complete”, adding “simply on one date absence where on he was busy in conciliatory efforts, when appeared before Magistrate on next date, was taken into custody in the court itself and handed over to police for further investigation. And the same Magistrate earlier while giving bail has opined that investigation in the case is complete”.
Accordingly, the Session’s Court Srinagar while deciding the revision petition, set aside the order impugned of Judicial Magistrate and issued direction for release of accused from the custody forthwith.
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