HIGH COURT FOR THE STATE OF TELANGANA:: HYDERABAD

ROC.NO. 1399/S0/2023 DATE:09.08.2023

CIRCULAR No. 12/S0/2023

Sub:- High Court for the State of Telangana - Supreme Court of India -
Judgment dated 31.07.2023 in Criminal Appeal No (s).2207 of 2023
in Special Leave Petition (SLP) (Crl) No. 3433 of 2023 between MD.
Asfak Alam Vs The State of Jharkhand & Anr. - Certain directions on
Section 41 of Cr.P.C with regard to arrest of accused by police
officers - Instructions - Issued.
Ref: - Letter dated 01.08.2023 in D.No.10318/2013, of Assistant Registrar,
Supreme Court of India along with certified copy of the Judgment
dated 31.07.2023 in Criminal Appeal No (s).2207 of 2023 in Special
Leave Petition (SLP) (Crl) No. 3433 of 2023 on the file of Supreme
Court of India.
*****
The Hon'ble Supreme Court of India in its Judgment dated 31.07.2023 in Criminal
Appeal No(s).2207 of 2023 in Special Leave Petition (SLP) (Crl) No. 3433 of 2023
between MD. Asfak Alam Vs The State of Jharkhand & Anr., issued certain directions
enumerating the procedure to be adopted by the Magistrates with regard to arrest of
accused made by the Police Officers. The relevant direction(s) of the Judgment is
extracted hereunder:

1.11 "Our endeavour in this judgment is to ensure that police officers do not
arrest the accused unnecessarily and Magistrate do not authorize
detention casually and mechanically. In order to, ensure what we have
observed above, we give the following directions:
11.1. All the State Governments to instruct its police officers not to
automatically arrest when a case under Section 498-A IPC is registered
but to satisfy themselves about the necessity for arrest under the
parameters laid down above flowing from Section 41 CrPC;
11.2. All police officers be provided with a check list containing specified sub­
clauses under Section 4l(l)(b)(ii);
11.3. The police officer - shall forward the check list duly filled and furnish the
reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for further
detention;
11.4. The Magistrate while authorizing detention of the accused shall peruse
the report furnished by the police officer in terms aforesaid and only
after recording its satisfaction, the Magistrate will authorize detention;]
11.5. The decision not to arrest an accused, be forwarded to the Magistrate
within two weeks from the date of the institution of the case with a
copy to the Magistrate which may be extended by tt1e Superintendent
of Police of the district for the reasons to be recorded in writing;
11.6. Notice of appearance in terms of Section 41-A CrPC be served on the
accused within two weeks from the date of institution of the case,
which may be extended by the Superintendent of Police of the district
for the reasons to be recorded in writing;
11.7 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 the High Court having territorial jurisdiction.
11.8. Authorizing detention without recording reasons as aforesaid by the
Judicial Magistrate concerned shall be liable to departmental action by
the appropriate High Court.
12. We hasten to add that the directions aforesaid shall not only apply to
the case under Section 498-A 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 terms which may be less than seven years or
which may extend to seven years, whether with or without fine."

Therefore, as directed, a copy of the Judgment datE�d.31.07.2023 in Criminal

Appeal No (s).2207 of 2023 in Special Leave Petition (SLP) (Crl) No. 3433 of 2023
between MD. Asfak Alam Vs The State of Jharkhand & Anr, is enclosed herewith and all
the Presiding Officers of the District Judiciary are hereby directed to comply with the
directions of the Hon'ble Supreme Court supra.
Any deviation in this regard will be viewed seriously.

REGISa�NCE)
F.A.C. REGISTRAR GENERAL
To
1. All the Unit Heads in the State of Telangana (with a irequest to circulate the
same among the Judicial Officers working in your Unit.)
2. All the Presiding Officers, working in the Tribunals in the State (for
information).
3. The Principal Secretary to the Hon'ble Chief Justice (with a request to place
the same before the Hon'ble the Chief Justice.)
4. All the Personal Secretaries to the Hon'ble Judges (with a request to place
the same before the Hon'ble Judges for their Lordship's kind perusal).
5. All the Registrars, High Court for the State of Telangana.
6. The Director, Telangana State Judicial Academy, Secunderabad.
7. The Member Secretary, Telangana State Legal Services Authority,
Hyderabad.
8. The Director, Medication and Conciliation Committee, High Court Buildings,
Hyderabad.
9. The Director General of Police, Telangana State, Hyderabad (with a request
to issue necessary directions to all the Police Officers working in the State.)
10.Section Officers:
(a) E Section and (b) O.P.Cell section, High Court for the State of Telangana.
 1

REPORTABl.,l(
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(fil. )}_CJ] OF 2023

!ARISING OUT OF SPECIAL LEA VE PETITION (CRL.) No. 3433 OF 2023]

MD. ASFAK ALAM ... APPELLANT(S)

VER.SUS

179683
THE STATE OF JHARI<HAND & ANR. ...RESPONDENT(S)

C�rtrii�d to be true
JUDGMENT Assistar.r �g,� P¥
CO
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·---�(�,ll�i,,
S. RAVINDRA BHAT, J. SuJ�r;� Coi1rfoffnd1J �0-1-J

1. On the previous date of hearing, i.e., on 26.07.2023, this Court heard the
counsel for the parties to the Special Leave Petition. But having regard lo the
peculiar nature of the impugned order, kept this matter back for orders to be
pronounced today.
2. Special leave granted. The appellant is aggrieved. by the denial 01

anticipatory bail and a further direction to surrender before the Court and seek
regular bail.
3. The necessary facts are that the appellant and the second respondent
(hereafter referred to as "husband and wife", respectively) were married on
5.11.2020. The appellant alleges th�t the respondent-wi fe was not happy and
her father used to interfere and pressurize him and his family. This led to
complaints lodged against the wife's family for threatening the appellant's
family. It is alleged that on 02.04.2022, without complying with the directions
 - t
l
i
2

of Five Judge Bench in Lalita Kuman· vs. Govt. of VP &Ors., 1 the concerned.
Police Station 2, registered the First Information Report (FIR) against the
appellant and his brother and others, complaining of commission of offences
under Section 498A, 323/504/506 of the Indian Penal Code, 1860 (IPC) and
Seotion 3 & 4 of the Dowry Prohibition Act.
4. The appellant apprehended arrest and applied for anticipatory bail under
Section 438 of the Code of Criminal Procedure, 1973 (CrPC) before the
Sessions Judge, Gurnla, Jharkhand; that application was dismissed on
28.06.2022. The appellant then approached the Jharkhand High Court seeking
anticipatory bail on 05.07.2022. All this while, the appellant cooperated with
the investigation ' and after its� com1)letion ' a charge-sheet was filed before the
(.

Sessions Judge.
5. Cognizance was taken on O 1.10.2022 by the Sessions Comi. The Sessions
Comi noted in this order that on 08.08.2022, the High Court had protected the
appellant with the interi1n order directing that he may not be anested. When the 1'

application was heard by the High Court.next on 18.01.2023, without adverting,

the pending anticipatory bail was rejected, and the High Court went on to direct
the appellant to surrender before the competent Court and seek regular bail.
The relevant extracts of the High Court impugned order3 read as follows:

"Considering the facis and circumstances of the case and rival

contentions of the learned counsel, I found that there are serious
allegations against the petitioner Lhat the informant is also being
�
subjected to cruelty by lodging criminal cases against the family
membersjust afier institution of this case.
Considering the rival submission of learned counsels and materials
f
available against petitioner as well as gravity o allegations, I am not
inclined to grant privilege of anticipatory bail to the petifione,� which
stands rejected.

1 12013114 SCR 713.

� Gum la Mahi la P.S. in Case No. 07/2022.
J /\.B./\. No. 5771 of2022 dated 18.0 i.2023
 3

Petitioner is directed to surrender be.fore the court below and /Jl'CIY jhr
regular bail, the learned court below shall consider the same on its own
merits, )l)ithout being prejudiced by this orde1: "

6. The appellant contends that importance has been placed by the

Constitution on the value of personal liberty, the necessity for arrest before
filing of the charge sheet occurs when the accused's custodial investigation or
interrogation is essential or in certain cases involving serious offences where the
accused's possibility of influencing witnesses cannot be ruled out Learned
counsel contends that an arrest can be made does not mandate that it ought to be
made in every case and emphasised that the distinction between the existence or
the power (to arrest) and the justification of exercising it must always be kept in
mind. lt is thus argued that the procedural requirements of Section 4 J ;\ or Lhc
CrPC must always be followed in this regard.
7. Learned counsel relied upon the decisions of this Court in .11.rnesh 1<..'umar
v. State of Bihar and Another4 , Satender Kumar Anti! v. Central Bureau (�/"
Investigation and /J.nother5 and Siddharth v. State of Uttar Pradesh and
A nother6 to underline the submissions and �lso highlighted that it is only i r the
Investigating Officer believes that the accused may abscond or disobey
summons then only, he or she needs to be taken into custody.
8. Learned counsel on behalf of the State submitted that the 1ncrc fact that a
charge sheet is filed would not per se entitle an accused to the grant or
anticipatory bail, which always remains discretionary. The Court always weighs
the possibility of an accused [depending on his past conduct] of influencing
witnesses or otherwise tampering with evidence. It was highlighted that the
respondent, who is a complainant in this case, had alleged harassment on a
regular basis by the appellant and his relatives at the matrimonial home just
about one and a half months after their marriage and that she had even been

� r2014] 8 SCR 128.

" j2022] IO SCR 35 l.
r. c2022) 1 sec 676.
 4

threatened with loss of lifo. H was highlighted that according to the

con,plainant, the threat extended to the one that she would be injected in such a
manner that rncdical evidence would disclose thAt. she had died of a heart attack.

Anafvsis

9. This court has emphasised the values of personal liberty in the context of
applying discretion to grant bail. It has been ruled, in a long line of cases that
ordinarily bail ought to. be granted and that in serious cases - which are
specified in the provisions of the CrPC (Section 43 7) which involve allegations
relating to offences carrying long sentences or other special offences, the comi
should be circumspect and careful in exercising discretion. The paramount
considerations in cases where bail or anticipatory bail is clai1ned are the nature
and gravity of the offence, the propensity or ability of the accused to influence
evidence during investigation or interfere with the trial process by threatening
or otherwise trying to influence the witnesses; the likelihood of the accused to
..
ilec from justice and other such considerations. During the trial, the court is
always in control of the proceedings, and it is open for it to impose any
condition which it deems necessary to ensure the accused's presence and
participation in the trial. The court wust, in every case, be guided by these
overarching principles.
I 0. ln the five judge Bench decision of Sushila Aggarwal v. State (NCT of
Delhi/, this court had occasion to review past decisions, including considering •

the judgment in Gurbaksh Singh Sibbia v State of Punjab8 and decide whether
imposition of conditions limiting the order of pre-arrest bail, particularly when
charge-sheet is filed, is warranted. The court held, inter alia, in its judgment
(M. R. Shah, J) that:

1
2020 (2) SCR 1
s 1980] 3 SCR 383
 5

''7. 6. Thus, considering the observations made by the Const ii uUon Rench
of this Court in Gurbaksh Singh Sibb;a [Gurbaksh Singh ,.')'ibbic.1 1•. Stole
of Punjab, (1980) 2 sec 565 : J 980 sec (Cri) .:/65./ . the court may. if'
there are reasons for doing so, limit the operation of the order lo a short
period only c!fter filing of an FIR in respecl of' the matter covered by
order an.cl the applicant may in such case be directed lo obtain an order
of bail under Sections -137 or -139 of the Code within a reasonable short
period aft.er the filing of the f"'JR. The Constitution Bench has further
observed that the same need not be follmved as an invariable rule. fl is
further observed and held that normal rule should be no! to limit the
operation of the order in relation to a period of time. We ore of the
opinion that the conditions can be imposed by the court concerned while
granting pre-arrest bail order including limiting the operation qf' the
I
order in relation to a period of time { the circumstances so wa!'l'cml.
more particularly the stage at which the "anticipatory bail·· application
is moved. namely, whether the same is at the stage before the Fl R is jiled
01· at the stage when the f1R isfiled and the investigation is in progress
or at the stage when the investigation is complete and the charge-sheet is
filed. Howeve1; as observed hereinabove, the normal rule should be not
to limit the order in relation to a period o,ftime. ,.

The concurring view expressed (by the author of this judgment) was:

"85.3. Section 438 CrPC does not compel or oblige courts to impose
conditions limiting relief in terms o.l time, or upon filing qf FIR, or
recording of statement of any witness, by the police, during investigation
or inquiry, etc. While weighing and considering an application (for grant
of anticipatory bail) the court has to consider the nature of the offence.
the role of the person, the likelihood of his influencing the course of
investigation, or tampering with evidence (including intimidatin,�
witnesses�, likelihood ojfleein.g justice (.rnch as leaving the country). etc.
The courts would be just(fied -- and ought to impose conditions .1pelt out
in Section 437(3) CrPC [by virtue of Section .:/38(2)] '/'he necessity to
impose other restrictive conditions, would have to be weighed on a case­
by-case basis, and depending upon the materials produced by the State
or the investigating agency Such special or other restrictive condition.1·
may be imposed if the case or cases warrant, but should not be imposed
in a routine manne,� in all cases. Likewise, conditions which limit the
grant of anticipatory bail may be granted, if they are required in the fact.1·
of any case or cases; howeve,� such limiting conditions may not be
invariably imposed.
*********************************

85.4. Courts ought to be generally guided by the considerations such as

nature and gravity of the offences, the role attributed to the applicant.
and the facts of the case, while assessing whether to grant anticipatmy
bail, or refusing it. Whether to grant or not is a ,natter of discretion:
 6

equolly whethe,� and if so. what kind of special conditions are Lo be

imposed (or not imposec() are dependent on facts of the case, and subject
Lo the discretion of the court.
85.5. Anticipalory bail granted can, depending on the conduct and
behaviour oft he accused, continue after filing of the charge-sheet till end
of triai. Also orders of anticipatory bail should nor be "blanket" in the
sense that it should not enable the accused to commit ji,rrher ojfences
and claim rehef It should be cOJ1'fined to the offence or incident, for
which apprehension ofarresl is sought, in relation to a spec!fic incident.
It cannot operate in respect of a fi1ture incident that involves commission
ofan offence.

*********************************
87. The hislmy of our Republic - and indeed, the Freedom Jvfovemenl ,.
has shown how the likelihood o.f arbitrary arrest and indefinite detention
and the lack (�/ safeguards played an important role in rallying the
people to demand Independence. Witness the Row/au Act, the nationwide
protesls again.sf it, the .Jallianwala Bagh Massacre and several other
incidents. where the general public were exercising their right to protest
but were brutally suppressed and eventually jailed for long. The spectre
q/ arbitrary and heavy-handed arrests : loo ojien, lo harass and
humiliate citizens, and ojientimes, at the interest ofpowe,ful individuals
(and nor to ji1rther any meaning/it! investigation into offence�) led to the
enactment of Section 438. Despite several Law Commission Reports and ..
recommendations of several committees and commissions, arbitrary and
groundless arrests continue as a pervasive phenomenon. Parliament has
nor thought it appropriate to curtail the power or discretion of the courts,
in granting pre-arrest or anticipatory bail, especially regarding the
duration, or till charge-sheet is filed, or in serious crimes. Therefore, it
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would not be in the larger interests of society i the Court, by judicial
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exercise would be that in fractions, little by little, the discretion,

advisedly kepi wide, would shrink to a very narrow and unrecognisably
tiny portion, thus frustrating the objective behind the provision, which
has stood the test of time, these 46 years. . , •

11. The decisions cited by counsel are useful and valuable guides with
respect to the powers of the police, the discretion and the duties of the court in
several kinds of cases, including those relating to the matrimonial offences such
as 4981\ of IPC, and other cases. In Arnesh Kumar (supra), it was held that:

"9. From a plain reading of the aforesaid provision, it is evident that a

person accused of an offence punishable with imprisonment for a term
which may be less than seven years or which may extend to seven years
v11;th or vvithoul fine, cannot be arrested by the police officer only on his
 7

satisfaction that such person had committed the offence punishable as

aforesaid. A police officer before arrest, in such cases has to be .fi,rther
satisfied that such arrest is necesscuy to prevent such person .fi·om
com.mitting any further offence,· or for proper investigation c�f the case:
or to prevent the accused from causing the evidence of the <�ffence lo
disappear,· or tampering with such evidence in any manner: or to 1Jreve11/
such personfi-·om making any inducement, threat or pmmise to a witness
so as to dissuade him ji-om disclosing such facts to the cow·r or the police
officer: or unless such accused person is arrested, his presence in the
court w · henever required cannot be ensured. These are the conclusions,
which one may reach based on/acts. The lc rw mandates the police officer
to state the facts and record the reasons in writing which led him to come
to a conclusion covered by any o.f the provisions aforesaid. ·while 111.aking
such arrest. The law further requires the police officers to record the
reasons in writing jiJr not making the arrest. in pith and core. the police
f
officer before arrest must put a question to himsel why arrest? !.1· it
really required? What purpose it will serve? ·what object it will achieve?
It is only after these questions are addressed and one or the other
conditions as enumerated above is satisfied, the power of arrest needs to
be exercised. In fine, before arrest first the police officers should have
reason to believe on· the basis of information and material that the
accused has commilted the offence. Apart from this, the police officer has
to be satisfied further that the arrest is necessary for one or the more
f
purposes envisaged by sub-clauses (a) to (e) o clause (J) o/ Section -1- I
CrPC"

The court also issued valuable directions to be followed by the police authorities
and the courts, in all cases where the question of grant of bajl arises. Further, the
court had underlined the centrality to personal liberty in its decision in
Siddharth (supra):

"10. We may note that personal liberty is an important aspect of our

constitutional mandate. The occasion to arrest an accused during
investigation arises when custodial investigation becomes necessary or it
is a heinous crime or where there is a possibility of influencing the
witnesses or accused may abscond. Merely because an arrest can be
made because it is lawful does not mandate that arrest must be made. A
distinction must be made between the existence of Lhe power to arrest and
the justification for exercise of it. J.f arrest is made routine, it can cause
incalculable harm to the reputation arid se(festeem <�[ a person. {f the
investigating officer has no reason to believe that the accused will
abscond or disobey summons and has, in jc1ct, throughout coopemted
with the investigation we fail to appreciate ·why there should be a
compulsion on the officer to arrest the accused. "
 ·•
.
8

12. In the present case, this Court is of the opinion that there are no startiing
Ccatures or elements that stand out or any exceptional fact disentitling the
appellant to the grant of anticipatory bail. What is important is not that the
matrimonial relationship soured almost before the couple could even settle
dovm but whether allegations levelled against the appellant are. true or paiily
true at this stage, which at best would be matters of conjecture, at least for this
Court. l lowever, what is a matter of record is that the time when the anticipatory
bai I was pending can be divided into two parts - firstly, when there was no
protection afforded to him through any interim order (between April 2022 and
�
08.08.2022). Secondly, it was on 08.08.2022 that the High Court granted an
order effectively directing the police not to arrest him during the pendency of
his application under Section 43 8 of the CrPC. Significantly, the investigation
was completed, and chargesheet was filed after 08.08.2022, and in fact
cognizance was taken on 01.10.2022 by the Sessions Judge. These factors were
of importance, and though the High Court has noticed the factors but interpreted
them in an entirely different light. vVhat appears from the record is that the
appellant cooperated with the investigation both before 08.08.2022, when no
protection was granted to him and after 08.08.2022, when he enjoyed protection
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Thus, once the chargesheet was filed and there was no impediment, at least on
the paii of the accused, the court having regard to the nature of the offences, the
..
allegations and the maximum sentence of the offences they were likely to carry,
ought to have gTantcd the bail as a matter of course. However, the court did not
do so but 111cchanically rejected and, virtually, to rub salt in the wound directed
the appcilant to surrender and seek regular bail before the Trial Comi.
Therefore, in the opinion of this court, the High Court fell into enor in adopting
such a casual approach. The impugned order of rejecting the bail and directing
the appellant, to surrender and later seek bail, therefore, cannot stand, and is
hereby set aside. Before parting, the comt would
 9

direct all the com1s ceased of proceedings to strictly follow the law laid down in
Arnesh J(umar (supra) and reiterate the directions contained thereunder, as well
as other directions:

"I. 11. Our endeavour in this judgment is to ensure that police

officers do not arrest the accused unnecessarily and Magistrate
do not authorize detention casually and mechanically. In order
to, ensure what we have observed above, we give the following
directions:

11.1. All the State Govern111ents to instruct its police officers not
to automatically arrest when a case under Section 498-A IPC is
' registered but to satisfy then1selves about the necessity for arrest
under the parameters laid clown above flowing fron1 Section 41
CrPC·'

11.2. All police officers be provided with a check list containing

specified sub-clauses under Section 41 (1 )(b)(ii);

11.3. The police officer- shall forward the check list duly filled
and f-tirnish the reasons and materials which necessitated the
arrest, while forwarding/producing the accused before the
Magistrate for f-tu-ther detention;

11.4. The Magistrate while authorizing detention of the accused

shall peruse the report furnis·hed by the police officer in terms
aforesaid and only after recording its satisfaction, the Magistrate
will authorize detention;

11. 5. The decision not to arrest an accused, be forwarded to the

Magistrate within two weeks from the date of the institution of
the case with a copy to the Magistrate wpich may be extended by
the Superintendent of Police of the district for the reasons to be
recorded in writing;

11.6. Notice of appearance in terms of Section 41-A CrPC be

served on the accused within two weeks from the date of
institution of the case, which may be extended by the
Superintendent of Police of the district for the reasons to be
recorded in writing;
 10,

11. 7. 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 the High Court having
territorial jurisdicLion.

11 .8. Authorizing detention without recording reasons as

aforesaid by the Judicial Magistrate concerned shall be liable for
departmental action by the appropriate High Court.

12. We hasten to add that the directions aforesaid shall not only
apply to the case under Section 498-A 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 terms .,
which may be less than seven years or which may extend to
seven years, whether with or without fine."

II. The High Court shall frame the above directions in the form of
notifications and guidelines to be followed by the Sessions courts and
all other and criminal courts dealing with various offences.

III. Likewise, the Director General of Police in all States shall ensure that
strict instructions in terms of above directions are issued. Both the
High Courts and the DGP's of all States shall ensure that such
guidelines and Directives/Departmental Circulars are issued for
guidance of all lower courts and police authorities in each State within
eight weeks from today. ...

IV. Affidavits of compliance shall be filed before this court within ten
weeks by all the states and I Iigh Courts, though their Registrars.

13. The appeal is accordingly allowed in the above terms. The appellant is
directed to be enlarged on bail subject to such tenns and conditions that the
Trial Court may impose. The High Courts and the Police Authorities in all
 !
11

States arc required to comply with the above directions in the manner spell out

in the para above, within the time framc/22::.:�JJ.�.�-.��:,F"4,..N...

jS. RAVINDRA BHAT]

..
IARAVIND KUMARJ

NEW DELHI;
JULY 31-, 2023

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