Bibhav Kumar v. State of NCT of Delhi

1. The present criminal writ petition under Article 226 of the Constitution of India, read with Section 482 of the Code of Criminal Procedure, 1973 („Cr.P.C.‟), has been filed by the petitioner praying for grant of following reliefs:

2. Sh. Sanjay Jain, learned Senior Counsel appearing on behalf of the respondent, at the outset has raised certain preliminary objections and has opposed the issuance of notice in the present petition. He argues that the petition is not maintainable since the petitioner has not disclosed true facts and has not annexed the order passed by learned Magistrate on 20.05.2024 wherein a separate application filed by the petitioner specifically raising the issue of non-compliance of Section 41A of Cr.P.C. was disposed of by the learned Magistrate, with the observations that the issue of non-compliance of Section 41A of Cr.P.C. had already been dealt with by the learned Magistrate at the time of grant of police custody remand of the accused/petitioner vide order dated 19.05.2024.Sh. Sanjay Jain argues that the petitioner has not challenged the order of the learned Magistrate dated 20.05.2024 before the Court of Sessions and, therefore, since an alternative remedy is available to the petitioner, the present writ petition under Article 226 is not maintainable. Therefore, he prays that the petition be dismissed on this ground itself.

3. Sh. N. Hariharan, learned Senior Counsel appearing on behalf of the petitioner, on the other hand, has argued that the petitioner herein has been challenged his arrest in the present case, primarily on the grounds of non-compliance of Section 41-A of Cr.P.C., directions of Hon‟ble Apex Court in case of Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 and violation of fundamental rights of the petitioner guaranteed to him under Article 21 and 22 of Constitution of India. He also states that two other reliefs have been sought in the present petition i.e. grant of appropriate compensation to the petitioner for his illegal arrest and taking action against the erring police officers. Learned Senior Counsel also argues that it is not mandatory for the petitioner to specifically challenge the order passed by the learned Magistrate before the Court of Sessions, and he is well within his right to raise the issue of non-compliance of provisions of law and directions of the Hon‟ble Apex Court before this Court under Article 226 of the Constitution of India since the same directly affects his fundamental rights. Therefore, he prays that notice be issued in the present petition.

4. This Court has heard arguments addressed by learned Senior Counsel for the petitioner as well as learned Senior Counsel for the State, and has perused the material available on record.

5. Having gone through the records of the case, this Court is of the opinion that the petitioner herein had raised an objection regarding non-compliance of Section 41A of Cr.P.C. when his police custody remand had been sought by the State, and the same was dealt with and rejected by the learned Magistrate vide a detailed order dated 19.05.2024. Since a separate application in this regard had also been filed by the petitioner, the same was rejected by the learned Magistrate on the ground that the grounds raised in the said i.e. noncompliance of Section 41A of Cr.P.C., have already been dealt with by the learned Magistrate in his order dated 19.05.2024, and, therefore, the same had become infructuous.

6. It is true that the petitioner herein has not challenged the dismissal of the abovesaid application by the learned Magistrate, which he should have challenged before the learned Sessions Court as per the provisions of law, before approaching this Court. However, this Court is also of the opinion that it is not the non-compliance of Section 41A of Cr.P.C. alone which has been challenged before this Court, but also the manner in which he was arrested, the malafide of arrest and breach of his fundamental rights. Additionally, reliefs such as payment of compensation and taking action against the erring officers who have arrested him without giving him a notice under Section 41A of Cr.P.C. have also been prayed for.

7. As far as the issue of maintainability of a writ petition, in light of availability of alternative remedy is concerned, it will be apt to take note of the observations of the Hon‟ble Apex Court in case of Radha Krishan Industries v. State of H.P. (2021) 6 SCC 771 which are extracted hereunder: