IN THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

Cont. Case(C) No. 427 of 2022

(Violations of the guidelines in Arnesh Kumar vs State of Bihar 2014 (3) KLJ 330 of
Hon’ble Supreme Court of India)

Gopika Jayan and Another : Petitioner

Vs
Faisal M.A : Respondent

REPLY TO THE AFFIDAVIT FILED BY THE RESPONDENT AS DIRECTED BY

THIS HONOURABLE COURT

I, Gopika Jayan, aged 22 years D/o Jayakumar, Chaithram Apartment,Near,

Changampuzha Park, Edappally Ernakulam District 682024 do hereby solemnly
affirm and state as follows:
1. I am the 1st petitioner herein and am conversant with the facts of the case. I
am swearing to this on my own behalf and for the 2nd petitioner for whom I
am also authorized.
2. The above contempt was filed for taking action against the respondent for
violating the guidelines of the Hon’ble supreme court in Arnesh Kumar Vs
State of Bihar (2014)8S CC 273, D.K Basu V State of West Bengal
(1997)1SCC416, and Joginder Kumar Vs State of UP (1994)4SCC260.
3. The respondent filed the affidavit dated 06.07.2022 on 06.07.2022. In the 4th
paragraph of the affidavit it is stated that 2nd petitioner had criminal
antecedents and Annexure R1(b) is filed along with the affidavit. The FIR no
345/2022 registered U/s 143,147,294(b),323,324 R/w 149 IPC and FIR no
153/2022 registered U/s 118(a) of Kerala police act were registered only
posterior to the registration of the crime No 44/2022 of the Elamakkara police
station. All the cases shown in the Annexure R1(b) except FIR No 345/2022
registered by the Paravoor police are of petty offenses. The respondent is
 trying to showcase the 2nd petitioner as a criminal. The 2nd petitioner is
innocent in all the above offenses.
4. In the paragraph 5 of the affidavit it is stated that the respondent altered the
charges after thorough investigation which is not true. No statements were
recorded from the 1st petitioner regarding the same. The section 75 of THE
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015
is stated below:
75. Whoever, having the actual charge of, or control over, a child, assaults,
abandons, abuses, exposes or wilfully neglects the child or causes or
procures the child to be assaulted, abandoned, abused, exposed or neglected
in a manner likely to cause such child unnecessary mental or physical
suffering, shall be punishable with imprisonment for a term which may
extend to three years or with fine of one lakh rupees or with both:
Provided that in case it is found that such abandonment of the child by
the biological parents is due to circumstances beyond their control, it shall
be presumed that such abandonment is not wilful and the penal provisions
of this section shall not apply in such cases:
Provided further that if such offence is committed by any person
employed by or managing an organisation, which is entrusted with the
care and protection of the child, he shall be punished with rigorous
imprisonment which may extend up to five years, and fine which may
extend up to five lakhs rupees:
Provided also that on account of the aforesaid cruelty, if the child is
physically incapacitated or develops a mental illness or is rendered
mentally unfit to perform regular tasks or has risk to life or limb, such
person shall be punishable with rigorous imprisonment, not less than three
years but which may be extended up to ten years and shall also be liable to
fine of five lakhs rupees.
The first proviso to the section 75 of the Juvenile Justice (care and protection)
Act 2015 states that “ Provided if the abandonment of the child by the biological
parents is due to circumstances beyond their control, it shall be presumed that such
abandonment is not wilful and the penal provisions of this section shall not apply in
 such cases:” Hence the respondent ought to have taken the statement of me
(1st petitioner herein) to ascertain whether I have willfully caused any actions
which would amount to cruelty to my son Trilok. In fact, myself and my son
were living under the custody and protection of my mother and Saji Varghese.
The same fact is very evident from the facts narrated on the 5th page of the
memo filed by the senior government pleader, producing the statement of
facts submitted by Sr. Nagaraju Chikilam, the Commissioner of Police in
Kochi city.
5. It is humbly submitted that, though the respondent stated in the 5th
paragraph of his affidavit that the 2nd petitioner herein was arrayed as 2nd
accused but the affidavit is silent about the reason for his arrest.
6. Furthermore, the respondent states that the arrest of myself was intimated to
the complainant and the arrest of the 2nd accused/2nd petitioner was
informed to the younger brother of the 2nd accused. Also, it is stated in the
affidavit that the arrest was informed to Adv. Abraham Varghese of Kerala
legal service authority over his mobile phone. And it is also stated that the
alteration of charges and case details and arrest were all informed to the
counsel who was present in the police station. The statement made by the
respondent is completely false. Neither Adv.U.Jayakrishnan(counsel for the
petitioners) nor Adv.Roopesh N.R (K/1165/2018), who appeared for us before
the Judicial first class magistrate court I at Aluva on 25.01.2022, were present
at the Elamakkara police station on 25.01.2022 when the we were arrested.
The statement made by the respondent is completely false and was made with
the intent to mislead the court. It is a well settled principle that the arrest of a
person shall inform the person of the choice of the accused. Such information
given to the de facto complainant itself would cause great injury and
hardship to the accused. That would be tantamount to the violations of the
guidelines given by the apex court in D.K Basu V State of West Bengal (1997)1
SCC 416, and Joginder Kumar Vs State of UP (1994)4SCC260.
7. It is falsely stated in the 5th paragraph of the affidavit that I didn’t complain
about the sexual harassment of Saji Varghese to the respondent. I complained
 about it but he did not care about the same and he did not reduce the same in
writing.
8. The respondent in the 7th paragraph of his affidavit falsely stated that all the
mandatory directions issued by the Hon’ble Supreme Court of India in
Arnesh Kumar Vs. State of Bihar and Anr (2014) SCC 273 and in DK Basu Vs.
State of West Bengal (1997) 1 SCC, 416 have been observed and compiled
during the arrest of the accused persons. On the 6th page of the memo filed
by the IGP and Commissioner of police, it is stated that the respondent officer,
who is a graded Sub Inspector aged 53, was unaware of the case law as
enshrined in Arnesh Kumar V/s State of Bihar. This would reveal that the
respondent stated before the commissioner of police that he wasn't aware of
the judgement of the apex court in Arnesh Kumar V/s State of Bihar but he
lied on his affidavit that he had followed the guidelines enshrined in the
above case laws. This would clearly reveal that the respondent has no
regard or respect for the judiciary.
9. It is humbly submitted that, though the respondent stated that he has
compiled all the guidelines of the apex court in Arnesh Kumar Vs State of
Bihar (2014)8S CC 273, D.K Basu V State of West Bengal (1997)1SCC416, and
Joginder Kumar Vs State of UP (1994)4SCC260, the affidavit is silent about
recording his reasons for arrest and check list containing specified
sub-clauses under Section 41(1)(b)(ii). The reason for not forwarding the
checklist duly filled and furnished the reasons and materials which
necessitated the arrest, while forwarding/producing the accused before the
Magistrate for further detention. In pith and core, the Police Officer before
making an arrest must ask himself the following Questions to himself:
a. Why Arrest?
b. Is it really required?
c. What Purpose it will serve?
d. What Object it will achieve?
10. The affidavit submitted by the respondent is undoubtedly with malicious
intentions to mislead the court. The apology sought by the respondent lacks
 bonafide. The hon’ble supreme court in Suo-Motu Contempt Petition (Civil)
No. 3 of 2021 dated 11.07.2022 ( MANU/SC/0843/2022):

15. It is thus well settled that a person who makes a false statement before the
Court and makes an attempt to deceive the Court, interferes with the
administration of justice and is guilty of contempt of Court. The extracted
portion above clearly shows that in such circumstances, the Court not only
has the inherent power but it would be failing in its duty if the alleged
contemnor is not dealt with in contempt jurisdiction for abusing the
process of the Court.
The above observations made by the hon’ble apex court are clearly applicable
in the above case as this Hon’ble court admitted the above case only after
perusing the documents which led to the arrest of myself and the 2nd
petitioner.
11. Hence for the reasons stated above, this Hon’ble court may allow the petition
filed by me and pass an appropriate judgement. The petitioners also pray that
this Hon’ble court may take necessary actions against the respondent who
filed an affidavit only to deceive this Hon’ble court.
What is stated above is true and correct.

Dated this the 23rdth day of July, 2022

Deponent

Solemnly affirmed and signed before me by the deponent who is personally known

to me on this the 23rdth day of June, 2022 at Kollam.

U.Jayakrishnan

Advocate