(Prayer: Petition filed under Section 482 of Cr.P.C., praying to direct the 2nd respondent to direct the respondent police not to harass the petitioner in Crime No.35/2016 on the file of the Kaliyakkavilai Police Station, Kanyakumari District without adhering to the mandatory provisions of law contemplated under Section 41(A) of the Code of Criminal Procedure Code.)

1. Seeking a direction to the respondent police not to harass the petitioners in Crime No.35/2016 on the file of the Kaliyakkavilai Police Station, Kanyakumari District without adhering to the mandatory provisions of law contemplated under Section 41(A) of the Code of Criminal Procedure Code, the petitioners have come up with this petition.

2. Heard Mr.S.C.Heroldsingh, learned counsel appearing for the petitioners.

3. It is the case of the petitioners that a regular FIR in Crime No.35 of 2016 under Sections 406, 498(A) and Section 4 of the Dowry Prohibition Act has been registered against the petitioners by the respondent police and that the respondent police should not harass the petitioners.

4. The Code of Criminal Procedure nowhere contemplates a remedy titled not to harass. However, such jurisprudence has been developed by this Court over a period of time in exercise of power under Section 482 Cr.P.C, to deal with a situation where the police receive a complaint from a person and without registering an FIR, keep it pending and frequently call the adverse party to the police station in the guise of enquiry. This practice has been consistently deprecated by the Court and therefore, the Madras High Court has developed a not to harass jurisprudence to give minimum protection to the person against such high-handedness of the police.

5. Even though I have my own reservations on the legality of passing an order of not to harass, I do not want to upset the apple cart now and in an appropriate case, the matter requires to be authoritatively dealt with by not less than a Division Bench. Once a regular FIR has been registered, the question of not to harass will not arise, because the expression harassment is so subjective that it cannot be encapsulated in an objective criteria.

6. When someone lodges a complaint, the bonafides of which is doubted by the Police Officer, he may choose to make a preliminary enquiry. This happens mostly in cheating cases, because, experience shows that, people frequently rush to the Police for help even in purely civil and commercial transactions. If Police do not register an FIR immediately, the complainant rushes to this Court under Section 482 Cr.P.C. for a direction to register an FIR. When a direction to enquire is issued by this Court on the complainants petition, the Police perforce will have to call the adverse party for enquiry. Immediately, the adverse party rushes to this Court with a Not to Harass petition. If a Not to Harass order is passed, that is used as a shield by the adverse party to avoid appearance for Police enquiry. On one hand, this Court directs Police to conduct an enquiry on the complaint of a person and in the same breath, if a not to harass order is passed, at the instance of the adverse party, the Police will only be in a quandary.

7. Mr.S.C.Heroldsingh, learned counsel appearing for the petitioners relied upon the Judgment of the Supreme Court in Arneshkumar vs. State of Bihar, reported in (2014) 3 MLJ (Crl) (SC), wherein the Supreme Court has directed the police officers to follow the provisions of Section 41(A) Cr.P.C lest face departmental and contempt actions. The learned counsel further submitted that in view of the above said judgment, it is the mandatory duty of the police officer to follow the provisions of Section 41(A) Cr.P.C, and they cannot harass the petitioner. Learned counsel also submitted that this Court should give a positive direction to the Police to follow Section 41A of the Code of Criminal Procedure. This Court is also aware of the decision in Hema Mishra vs. State of U.P. [2014 (4) SCC 453 [LQ/SC/2014/53] ], which came prior to Arnish Kumar, wherein Section 41A has been considered.

8. I am unable to countenance this submission for the following reasons. Once an FIR is registered under Chapter XII of the Code of Criminal Procedure, the investigation has to go through the mandates laid down in the said Chapter. Section 41A will come into play only where the arrest of a person is not required under the provisions of Sub-Section (1) of Section 41 of the Code. In other words, if the Police Officer decides not to arrest a person, who is involved in an offence punishable with imprisonment for seven years or less, then he is required to follow Section 41A. There can also be instances where the Police Officer may consciously decide not to arrest a person and may not even require him for interrogation. He may collect all the evidences against the person and directly file a final report even without going anywhere near the accused. In fact, in Joginder Kumar vs. State of U.P., 1994 (4) SCC 260 , [LQ/SC/1994/459] the Supreme Court has clearly held that, existence of power to arrest is one thing and the exercise of such power is quite another thing. Though Sections 160 and 161 Cr.P.C. empower a Police Officer to examine a person accused of an offence, yet, in a given case, as stated above, a Police Officer can elect not even to examine or arrest an accused and can proceed to file the final report with the evidence collected collaterally. In such cases too, is it necessary that the Police Officer should follow Section 41A The obvious answer is an emphatic No. Arnesh Kumar judgment should not be interpreted in a manner that would lead to absurd results. Section 41A empowers the Police Officer to issue a notice of appearance to an accused and casts a duty upon the accused to comply with the notice. Thereafter, Section 41A does not say anything more and ends in a cul-de-sac. Examination of a person is covered by Sections 160 and 161 Cr.P.C. and Section 41A has in no way enhanced or diminished the power of the Police Officer, conferred by Sections 160 and 161 Cr.P.C. As pointed out by the Supreme Court in Hema Mishras case, Section 41A is for the purpose of identification of the accused, when the Police Officer does not want to arrest. The necessary corollary is, if the Police Officer knows the identity of the accused, but consciously takes a decision not to arrest him and also records the reasons thereof, there is no necessity for him to issue notice under Section 41A, for, such an exercise will only be an empty formality.

9. Further Arnish Kumars case was decided on an entirely different backdrop. The Supreme Court observed that, in matrimonial offences, the Police were indiscriminately arresting all and sundry, and to control such arrests, the provision of arrest as amended in 2008 and 2010 was expatiated. No doubt, the Supreme Court has stated that the guidelines would apply to other IPC offences, where the punishment is seven years and less, also. The Supreme Court has not imposed a complete ban on arrests, but has only qualified it by expounding on the spirit behind the existing provisions.

10. The fact that Arnish Kumar has been misconstrued by Magistrates can be well illustrated by referring to a recent happening in Madurai. On 15.10.2015, the Police Control Room received a phone call and the caller said that a bomb has been kept in the Madurai District Court building and that it may explode between 10 and 11 a.m. The caller did not identify himself, but the Police traced the call to a particular mobile number. The Police informed the District Judge and for three to four hours, there was a thorough search with sniffer dogs and bomb detecting devices of the nook and corner of the Court building. Work in all the Courts in the building came to a standstill, putting litigants, lawyers, staff, et al to great inconvenience. The Police swung into action and with the help of the service provider, they found out that the particular SIM card was in the name of a lady. When the Police descended on her, they learnt that the lady had refused the overtures of one X, who, in order to wreak vengeance, had used her mobile to make the hoax call. X was arrested and produced before a Judicial Magistrate for remand together with the reasons justifying the arrest as required under Section 41. The Judicial Magistrate refused to remand the accused saying;

The reason / intension is also found one, which turns out to be an impish prank. This Court is not lost sight of the inconvenience the general public / police / litigants / judicial officers were put to. However, that cannot be the reason to incarcerate the accused, who is otherwise protected by Arnish Kumar vs. State.

The accused walked out of the Court and had the last laugh at the fretting and fuming Police. To ruefully quote Palkhivala:

"Our Legal System has made life too easy for criminals and too difficult for law abiding citizens. A touch here and push there and India may become ungovernable under the present Constitutional Set up."

11. If a not to harass order is passed in this case, where a regular FIR has been registered against the petitioners, a notice by the Investigating Officer under Section 41A can also be construed as an harassment. Mr.Herold Singhs submission that a positive direction should be given by this Court to the Police to follow Section 41A has to be rejected on another ground too. In the teeth of the presumption under Section 114(e) of the Evidence Act, it is not open to this Court to issue such a direction on the premise that a statutory authority will not follow the statute and that he has to be goaded by the Court.

12. In fine, I am unable to agree with the submissions of Mr.Herold Singh, learned counsel for the petitioners and in the result this petition stands dismissed.