DORAND AND ORS.
V THE SUPERINTENDANT OF POLICE,
NAGERCOIL AND ORS.
Citation: Crl.O.P.(MD) No.1727 of 2016
Date of Judgement: February 1, 2016
Brief facts of the case:
1. The case arose in the Kaliyakkavilai Police station of Kanyakumari District, when an FIR was registered
against the petitioners under Sections 406, 498(A) IPC and Section 4 of the Dowry Prohibition Act.
2. The petitioners later reached the court, alleging that the police were repeatedly calling them to the
station, registering false cases related to dowry, and pressuring them to settle the family dispute
without proper investigation, thereby acting in contravention of section 41(A) CrPC.
Issues:
1. Whether the police was acting in contravention of safeguards set under Section 41(A) of CrPC?
2. Whether the court should grant a “not-to-harass” order when a regular FIR has already been registered?
Arguments provided by the petitioner:
1. The petitioners, hailing from Kanyakumari, alleged that after the complaint was lodged, they faced
hardships due to the conduct of the police, as they registered a false case related to Dowry Prohibition
Act, merely after the complaint was lodged.
2. According to the petitioners, the police were pressurizing the petitioners into settling the matter without
proper investigation.
3. The petitioners alleged that there was violation of the Arnesh Kumar guidelines and section 41(A) of
CrPC by the police, as they did not follow the set guidelines for arrest as has been laid out, and that it
was necessary for them to do so and not harass the petitioner.
4. They contended that the police should be given a “positive direction” by the court to follow the said
guidelines and to include the “not-to-harass” principle which had been formulated by the Madras High
Court in this case.
Arguments by the Respondent:
1. The respondent (police) contended that all guidelines were followed, as the arrest was made after FIR
was registered. They were arrested as they had to be produced before the magistrate as accused for the
said offences.
2. The police also contended that a “not-to-harass” principle would interfere with the investigation.
Legal Principles Involved:
The two main legal principles involved in the case are as follows:
1. Section 41(A) of CrPC (now section 35 of BNSS)
The petitioners heavily relied on Section 41(A) of the CrPC, which was introduced through amendments
to prevent unnecessary arrests and uphold personal liberty. It reads as under
“41A. 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.
3[(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.”1
In other words, this statute states that in case arrest is not mandatory (when an offence is punishable for
less than 7 years), the police must issue a notice to the accused, to request the presence of the accused
for investigation instead of making an immediate arrest.
This provision was added after the judgement of Arnesh Kumar v State of Bihar2, which provided
guidelines for arrest for offences which are less than 7 years, especially for offences pertaining to 498-A
of IPC (cruelty; now section 86 in BNS). These guidelines have now been included in the BNSS under
section 35(1)(b)(ii). It has been stated by the Hon’ble Supreme Court in the said judgement that the
failure to follow these guidelines by the police officers and magistrates would leave those officers liable
for departmental action. 3The petitioners also relied on these guidelines to substantiate their arguments,
1
The Code of Criminal Procedure, 1973 (2 of 1974)
2
AIR 2014 SC 2756
3
Id.
and thereby contend that these were not followed which should result in departmental actions for the
requisite police officers.
2. The Principle of “not-to-harass”
The question of whether the petitioners could seek protection from claimed police harassment while a fo
rmal complaint had already been filed was one of the main legal questions in this case. While not
specifically mentioned in the CrPC, the idea of "not to harass" was created by Indian courts, most
notably the Madras High Court, to stop police power abuse when complaints are made but official FIRs
are not filed.
The issue occurs when officers frequently call someone to the police station under the guise of an
informal investigation and fail to file a formal complaint. Since police cannot put people under excessive
pressure without following due process, courts have often denounced this behavior. But in this instance,
the court decided that the "not to harass" issue is resolved once a formal complaint has been filed
because legal procedures must be followed.
Ratio Decidendi:
The court elaborated on the points which were put forward by the petitioner, and thereby helped in clearer
interpretation of the section 41(A), as well as the doctrine of “not-to-harass”.
Doctrine of “not-to-harass”
1. The principle of “not-to-harass” has been provided nowhere in the CrPC, but is a judicial creation,
especially of the Madras High court, to give an accused “minimum protection” in case the police are
found sending repeated summons to the accused without lodging an FIR, under the pretence of enquiry.
2. However, this principle has a limited application. It extends to scenarios where the accused are being
called to the police station on a regular basis without the FIR being lodged. However, once an FIR is
formally registered according to chapter XII of CrPC, the scope of “not to harass” ceases to exist
because the investigation then follows established legal procedures. If a court grants a “not to harass”
order even after an FIR has been registered, it would confuse the police and obstruct their investigation.
3. Under the assumption established by Section 114(e) of the Evidence Act, this Court is not authorized to
give such a directive on the grounds that a statutory authority will not adhere to the statute and that the
Court must coax him to do so.
Arnesh Kumar Guidelines
4. The application of the case of Arnesh Kumar v State of Bihar here is faulty because the factual
background of both the cases is significantly different. Also, through these guidelines, The Supreme
Court has simply modified the current regulations by elaborating on their spirit rather than outright
prohibiting arrests.
5. Section 41A of the CrPC is applicable when arrest is not necessary, and when it is up to the discretion of
the police whether an accused has to be interrogated or not.
Final Judgement:
Ultimately, the court decided that the “not-to-harass” principle and Arnesh Kumar guidelines would not be
applicable here. The act of police to repeatedly call the accused in the police station does not violate any
guidelines or statutes, and is perfectly valid.
