In a Constituent Assembly debate, Dr. B. R. Ambedkar preferred “due procedure established by law” over “due process of law.” A puzzled member rose to ask him the difference between the two, Dr. Ambedkar opined, his choice would make codified law be a rule of law while in contrast “due process” would make the law to work with the whims of the enforcers!

What Chairman of the Drafting Committee meant was – the enforcers would adhere to the dictum of the codified law and its unambiguous interpretation instead they apply their will and pleasure to decide the course of justice.

But, what today’s India is following in the Polices’ establishment and in the Courts of law is what Ambedkar hated very much i.e. due process of law!

Once a while, through a rare Judgment, our Supreme Court reminds us the existence of soul of our forefathers (lawmakers) and theirs spirit bestowed on the essence of implementing a codified law as a rule of law, however, still a few in the Police and Judiciary tend to destroy such essence and spirit gave on us by those great souls.

Take for an example of a Judgment pertaining to Arnesh Kumar -Versus- State of Bihar, wherein, in 2014, the Supreme Court made certain observations with reference to Section 41 and 41-A of Code of Criminal Procedure [Cr.P.C] and that still remind us that soul-keepers are amidst us. Unfortunately on the other hand, the enforcers are still destroying such institution of procedure established by law and ruling of the Supreme Court in invoking such established procedure.    

Section 41-A is one such provision which came to adore the statute of Code of Criminal Procedure by Act 5 of 2009. And from 01-11-2010 onwards it became an important limb of the procedural law. And it reads as follows;

41-A. Notice of appearance before police officer – [1] The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

[2] Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

 [3] Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

[4] Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.

Section 41-A thereby reduced enormous powers vested on the Police under Section 41 [when Police may arrest without warrant] of Cr.P.C. while executing arrest of an Accused voluntarily, yet on flimsy grounds, when an offence was said to have committed in its presence or based on credible information like Complaint or through its [anonymous] sources …

So the point is, Police before arrest of any person who is said to have committed an offence and which may bring him punishment to an extent of 7 years, it must issue a summons to such person under Section 41-A to appear before the IO for inquiry.

• Provided such person appeared on the said date for inquiry, the IO should not arrest him for those offences for which he was summoned.

• And, if IO tend to arrest, he must reasoned out the purpose behind such move.

• And if arrested then the person must be produced before the Magistrate at the earliest and the Magistrate should not be mechanical in taking the Accused into judicial custody.

• The Court must satisfies itself whether the IO followed “due procedure established by law” i.e., Section 41 and 41-A diligently?

• If not, then the Magistrate must release the Accused therein either on his own bond or calls for sureties for his release.

In Arnesh Kumar Versus State of Bihar the Court hasten to add, provided the IO or the Magistrate do not follow the detention process;

“Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine.”

Further, SC had observed that Section 41-A came into existence to defeat Section 438 of Cr.P.C. [direction for grant of bail to person apprehending arrest] to a large extent. Had the enforcers strictly follow Sections 41 and 41-A of Cr.P.C. the purpose to seek anticipatory bail from the Sessions and High Court would tremendously come down, the Court opines.  

From a bare reading of such a rare judgment by the SC what we understand is that our law makers kept “check and counter check” to ensure miscarriage of justice wouldn’t happen and if it happened – interpreted by the SC in such a way – it kept equal footing to punish an IO and the Magistrate should they breach due procedure established by law.

But in spite of such checks and counter checks and mandating punitive actions against those erring officers, why such abuses still continues?

Here is a case which happened a couple of days ago in Chennai and came to my notice which I can’t allow to go unnoticed!

An IO summoned the Complainant Husband to his Police Station by issuing him a Summons under Section 41-A. The Summons clearly spelled out that he require to attend an inquiry on his Complaint and the Summons also explained that IO has sought presence of the Accused Wife and Son on that day.

All three assembled before the IO on the determined date and the IO arrested both Husband and Son, showed Wife as absconder, in a Counter FIR, dated March 2021, and produced them before the Magistrate.

The Magistrate, mechanically, without following due procedure established by law, remanded duo to the judicial custody. While remanding to judicial custody, a Counsel present there, informed the Magistrate that such arrest was unnecessary under the provisions of law as the case pertains to a family, both are Complainants in the case against each other and on top of it the FIR was dated March 2021, the Magistrate simply directed the Counsel to represent in the Court.

This is a fit case to be called “damages done by imprisoning a person for the very reason that he complied with the Summons sent under the law!”

What I understood is, “due process of law” still continue to haunt our Polices’ and the Courts – their whims and fancies takes the lead than the “due procedure established by law.” Unfortunate isn’t it!