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High Court Issues Arrest, Detention, and Bail Guidelines in Jammu and Kashmir

November 1, 2023
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The High Court of Jammu and Kashmir and Ladakh has recently introduced comprehensive guidelines pertaining to the arrest, detention, and bail of individuals accused in criminal cases. These directives are to be applied to all criminal cases involving offenses that may lead to imprisonment for up to seven years, either with or without a fine.

According to a notification released by the High Court’s Registrar General, these guidelines were developed in alignment with the directives of the Supreme Court in the case of Md Asfak Alam vs State of Jharkhand, where the court emphasized the importance of avoiding unnecessary arrests by authorities.

Furthermore, the High Court has issued a stern warning that any failure to adhere to these guidelines may result in disciplinary action against the concerned police officers, as well as potential contempt of court proceedings. Additionally, if a magistrate authorizes the detention of an accused without recording valid reasons, they too may face departmental action by the High Court.

The key provisions of these guidelines include:

  1. Law enforcement officers should not automatically arrest individuals accused under Section 498A of the Indian Penal Code (IPC), which deals with cruelty to married women by their spouses or in-laws.
  2. The police are required to assess the necessity of arresting the accused based on the criteria outlined in Section 41 of the Code of Criminal Procedure (CrPC), which specifies situations in which police may make arrests without a warrant.
  3. Police officers should be knowledgeable about the checklist provided in Section 41(1)(b)(ii) of the CrPC, which details additional circumstances justifying an arrest. When an accused is presented before a magistrate for further detention, this checklist and the reasons or evidence supporting the arrest should be presented to the magistrate.
  4. The magistrate is only authorized to approve further detention of the accused after a thorough review of the police report and upon being convinced of the necessity for extended detention.
  5. In cases where the decision is made not to arrest an accused after the initiation of a case, this information must be communicated to the magistrate within two weeks. An extension beyond this timeframe may be granted by the superintendent of police, provided that it is accompanied by recorded reasons.
  6. Following the filing of a case, the accused must be issued a notice to appear before the police under Section 41A of the CrPC, which addresses situations where arrest is deemed unnecessary. This notice should be served within two weeks, with the possibility of an extension by the superintendent of police, provided that it is supported by documented reasons.

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