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The Supreme Court in
Arnesh Kumar V/s State of Bihar, 2014 has laid down the law
to restrict the undue arrest by police officials after registration of F.I.R
under section 498a/406 and offences in which the imprisonment for a term which may be less than seven
years or which may extend to seven years. The Supreme directed to use section 41A in these cases. After the judgment there is decline in the arrest numbers
in these type of cases but still there is doubt inculcated in the minds of
people that even after issuance of notice under section 41A and further
cooperating in the investigations can lead to arrest by police officials in the
case. This Blog will help understand and remove the doubts relating to question
whether still there is a need to get Anticipatory Bails from the courts?
Fighting 498A
Below are the guidelines given by the
High Courts that how the working of section 41A can be followed by the Police authorities.
The directions to comply with the Notice under section 41A are almost similar
to the general directions passed on the Anticipatory Bail. Not adhering to the directions
in the Anticipatory Bail will lead to cancellation of Anticipatory Bail just
similar in the case of not adhering to the direction of Notice under section 41A. So adhering direction to Notice of section 41A will not lead to arrest and
there is no need for Anticipatory Bail. Any police officer/Investigating officer failure to comply the procedure of section 41A is liable for departmental action, they shall also be liable to be punished for contempt of Court. Still if you feel the threat of arrest
you can go for Anticipatory Bail.
You can contact for legal consultation or advice by
The Delhi High Court in
case Amandeep Singh Johar vs State Of Nct Of Delhi & Anr on 7 February,
2018 directed that:-
“ it is directed that so far as working of Section 41A, the
following procedure shall be strictly followed by the police in Delhi:
Procedure for issuance of notices/order
by police officers under Section 41A "(i) Police officers
should be mandatorily required to issue notices under Section 41A CrPC (in the prescribed format) formally to be served in the manner
and in accordance with the terms of the provisions contained in Chapter VI of
the Code.
Model form of notice under Section 41A CrPC is reproduced herein below:-
Sr.No.............Police
Station .................
To, [Name of Accused/Noticee]
[Last Known Address]
[Phone No./Email ID (if any)]
Notice under Section 41A Cr.P.C. In exercise of the powers conferred under subsection (1)
of Section 41A of Cr.P.C.,
I hereby inform you that during the investigation
of FIR/Case No. ................... dated .......... u/s ............registered
at SV & ACB Police Station ................, it is revealed that there are
reasonable grounds to question you to ascertain facts and circumstances from
you, in relation to the present investigation. Hence you are directed to appear
before me at ....... am/pm on ...... at ..........Police Station.
You are directed to comply with all
and/or the following directions :-
(a) You will not commit any offence in
future.
(b) You will not tamper with the
evidences in the case in any manner whatsoever.
(c) You will not make any threat,
inducement, or promise to any person acquainted with the fact of the case so as
to dissuade him from disclosing, such facts to the court or to the police
officer.
(d) You will appear before the Court as
and when required/directed.
(e) You will join the investigation of
the case as and when required and will cooperate in the investigation.
(f) You will disclose all the facts
truthfully without concealing any part relevant for the purpose of
investigation to reach to the right conclusion of the case.
(g) You will produce all relevant
documents/material required for the purpose of investigation.
(h) You will render your full
co-operation/assistance in apprehension of the accomplice.
(i) You will not allow in any manner
destruction of any evidence relevant for the purpose of investigation/trial of
the case.
(j) Any other conditions, which may be
imposed by the Investigating Officer/SHO as per the facts of the case.
Failure to attend/comply with the terms
of this Notice, can render you liable for arrest under Section 41A(3) and (4) of CrPC.
In compliance with the abovementioned
notice dated ....... issued under Section 41A CrPC, the Noticee has
appeared on ............ from ........... to ............... That the Noticee's
presence has been recorded in the register to be maintained by the Police
Station.................. This acknowledgement is being issued in compliance
with Section 41A CrPC. The documents produced by the noticee have
duly been seized vide seizure memo/production memo (copy enclosed).
The noticee undertakes to continue to
comply with any further notices that she/he may receive during the course of
the present investigation.
[Signature of Accused] [Signature of IO]"
(ii) The concerned suspect / accused
person will necessarily need to comply with the terms of the notice under Section 41A and attend at the requisite time and place.
(iii) Should the accused be unable to
attend at the time for any valid and justifiable reason, the accused should in
writing immediately, intimate the investigating officer and seek an alternative
time within a reasonable period, which should ideally not accede a period of
four working days, from the date on which he / she were required to attend,
unless he is unable to show justifiable cause for such non-attendance.
(iv) Unless it is detrimental to the
investigation, the police officer may permit such rescheduling, however only
for justifiable causes to be recorded in the case diary. Should the
investigating officer believe that such extension is being sought to cause
delay to the investigation or the suspect / accused person is
being evasive by seeking time, (subject to intimation to the SHO / SP of
the concerned Police Station), deny such request and mandatorily require the
said person to attend.
Fighting 498A
(v) A suspect / accused on formally
receiving a notice under Section 41A CrPC and appearing before the
concerned officer for investigation / interrogation at the police station, may
request the concerned IO for an acknowledgement,
(vi) In the event, the suspect / accused
is directed to appear at a place other than the police station (as envisaged
under Section 41A(1)CrPC), the suspect will be at liberty to get the
acknowledgement receipt attested by an independent witness if available at the
spot in addition to getting the same attested by the concerned investigating
officer himself.
(vii) A duly indexed booklet containing
serially numbered notices in duplicate / carbon copy format should be issued by
the SHO of the Police Station to the Investigating Officer. The Notice should
necessarily contain the following details:
a Serial Number
b Case Number
c Date and time of appearance
d Consequences in the event of failure
to comply e
Acknowledgment slip
(viii) The Investigating Officer shall
follow the following procedure:-
a The original is served on the
Accused/Suspect;
b A carbon copy (on white paper) is
retained by the IO in his / her case diary, which can be shown to the concerned
Magistrate as and when required;
c Used booklets are to be deposited by
the IO with the SHO of the Police Station who shall retain the same till the
completion of the investigation and submission of the final report
under section 173 (2) of the Cr.P.C.
d The Police department shall frame appropriate
rules for the preservation and destruction of such booklets
(ix) Procedure booklets in format
identical to the above prescription in guideline (vii) & (viii) with
modifications having regard to the statutory provisions in the forms for the
notices and acknowledgment shall be maintained.
(x) Failure on the part of the IO to
comply with the mandate of the provisions of the Cr.P.Cand the above
procedure shall render him liable to appropriate disciplinary proceedings under
the applicable rules and regulations as well as contempt of Court in terms of
the directions of the Hon'ble Supreme Court in the case of Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273.
(xi) Publicity should be undertaken and
pamphlets educating the public at large, should be issued by the DCP of all
Districts.
(xii) The above information should be
displayed at prominent places in Police stations, the subordinate courts and
the High Court and made available to with the State and District Legal Services
Authorities, to inform the public of their rights and recourses available
to them.
(xiii) Training programmes be specially
formulated for Police Officers and Judicial Officers to sensitize them towards
effective compliance of Section 41A, 91, 160 and 175 of the CrPC."
16. It is directed that the above
procedure shall apply also to the working of Sections
91, 160 and 175of the CrPC as well. The above procedure shall be
mandatorily followed by the Delhi Police when working the requirements of all
the above noted sections.
17. The respondent no.2 shall issue a
circular forthwith upon receipt of a copy of this order directing the strict
compliance of the procedure laid above, by every police personnel. The Circular
shall be also posted on the official website of the Delhi Police and effective
publicity given to ensure that the public is apprised of the procedure which
has to be followed.
18. The necessary features of the
Circular shall be prominently displayed at all police stations in English and
vernacular to enable every person who visits the police station of the
procedure which has to be followed.”
In Madras High Court the case Unknown vs Tr.Nakeeran Gopal:
From a
conspectus of the judgments the following principles emerge governing the
arrest and remand of an accused person http://www.judis.nic.in
a) Where the offences alleged carry a
punishment of up to seven years or below, the police officer is under a
statutory obligation to follow the edict of Section 41(1)(b) of the
Cr.P.C. After the 2009 Amendment (vide Act 5 of 2009) to Section 41 of
the Code, mere satisfaction of the police officer that there is a reason to
believe that the accused has committed an offence will not suffice to effect
arrest. The police officer must also demonstrate that a need for arrest has
arisen by showing that the case falls within any of the limbs under Section 41(1)(b)(ii). In other words, the satisfaction of the police officer that there
exists reason to believe that the accused has committed the offence must be
coupled with one or more of the conditions set out in Section 41(1)(b)(ii) viz.,
a) that arrest is necessary to prevent the accused from committing any further
offence or b) for proper investigation of the offence or c) to prevent the
accused from tampering with the evidence or d) to prevent the accused from
winning over witnesses through inducement or threat or e) to secure his
presence before the Court.
b) In all cases where the police officer
decides to effect arrest he must set out the facts and record reasons in
writing disclosing http://www.judis.nic.in the satisfaction that has led
him to conclude that arrest is necessary for the purposes of investigation.
This is the plain requirement of the law, as was held by the Supreme Court in Arnesh Kumar v State of Bihar (2014 (8) SCC 273), and is a safeguard to ensure
that the power of arrest does not degenerate into a weapon of harassment. Ipso
facto, the requirement would be the same where the police officer decides not
to arrest the accused in view of the proviso to Section 41(1)(b) of
the Code.
c) In cases where the police officer
decides not to arrest the accused,Section 41-A Cr.P.Cwill come into play. In
such cases, the police officer can issue a notice directing the accused to
appear before him at a time and place set out in the notice. The police officer
shall serve the notice on the accused within two weeks from the date of
institution of the case after forwarding a copy to the jurisdictional
Magistrate. The concerned Superintendent of Police may extend the time for service
of notice after recording reasons in writing.
Fighting 498A
d) The police officer shall follow the
guidelines issued by the High Court of Delhi in Amandeep Singh Johar v State of
NCT Delhi and Anr (W.P Civil 7608 of 2017), dated 07/02/2018, as regards the
format and contents of the notice under Section 41-A and the mode
http://www.judis.nic.in and manner of its service. The aforesaid
guidelines shall be followed till such time suitable amendments are incorporated
into the Second Schedule of the Code. Suitable circular instructions shall be
issued by the Director General of Police to all Station House Officers,
directing them to follow the aforesaid procedure.
e) There may also be cases where the
police officer may not require the presence of the accused for interrogation
and may complete the investigation without going anywhere the accused. In such
cases, notice under Section 41-A of the Code need not be issued.
f) In view of Section 41-A(4) of
the Code, where the accused does not act in terms of the notice issued under Section 41-A(1) or is unwilling to identify himself, the police officer can
proceed to arrest him for the offence specified in the notice.
g) If the accused complies with the terms
of the notice, he shall not be arrested unless the police officer is of the
opinion that arrest is necessary. Even in cases of this eventuality, the
conditions precedent for arrest as envisaged under Section 41 Cr.P.C
must be complied with.
h) The power to arrest is statutorily
granted in aid of http://www.judis.nic.in investigation. The five
contingencies set out in Section 41(1)(b)(ii) of the Cr.P.C clearly
demonstrate that arrest is to be effected only where it is necessary to do so
for proper investigation of the case or when there exists grounds to believe
that the accused may resort to one or more of the acts specified in Section 41(1)(b)(ii) (a),(c),(d) and (e) of the Code. In cases falling within
the ambit of Section 41(1)(b) of the Code, if the police officer
requires the presence of the accused for interrogation he shouldfirst resort to
the procedure under Section 41-A of the Code, unless there is reason
to believe that one or more of the contingencies set out in Section 41(1)(b) (ii) exist necessitating arrest.
i) A police officer must not resort to the
power of arrest under Section 41 Cr.P.C merely because it is lawful
to do so. The existence of the power of arrest is one thing and the justification
for its exercise is quite another. Time and again the Supreme Court has
condemned the attitude of the police to arrest first and then proceed with the
rest. The police officer must be able to objectively demonstrate the necessity
to arrest on the touchstone of the requirements set out in Section 41(1)(b) of the Code.
j) The expression “reason to believe” in Section 41(1)(b) http://www.judis.nic.in of the Code is a clear pointer
that the grounds that led the police officer to suspect the commission of the
offence by the accused must be disclosed in the file. Such belief must be
capable of objective assessment. A checklist containing specified sub-clauses
under Section 41(1)(b)(ii) of the Cr.P.C along with the reasons and
materials which necessitated the arrest should be forwarded to the Magistrate
authorized to remand the accused. This would ensure that the Magistrate
authorizing remand under Section 167 Cr.P.C is in a position to
effectively assess the material on the basis of which further detention of the
accused is being sought. However, at this stage the Magistrate can only examine
the record to see whether there exists some material to justify a remand. The
Magistrate cannot conduct a roving enquiry to test the sufficiency of material
at this stage for the obvious reason that investigation would be at a nascent
stage and the police are yet to file a report either under Section 169 or
Section 170 of the Cr.P.C.
k) Mechanically reproducing in the case
diary all or most of the conditions contained in Section 41Cr.P.C will not
suffice. This is plainly a subversion of the law, and is a practice to be
strongly deprecated.
http://www.judis.nic.in
l) A Magistrate before whom the accused is
produced for remand must scrutinize the file to ensure that the requirements of Section 41(1)(b) of the Code are satisfied. If the Magistrate finds that Section 41(1)(b) of the Code has not been complied with, he would be justified in
refusing to remand the accused to custody, and may direct that the accused be
released on his own bond, without or without sureties, with an undertaking that
he shall appear before the investigation officer as and when required. By
adopting this procedure unnecessary arrest can be avoided and investigation can
be speeded up.
m) It requires no reiteration that the
power of remand under Section 167 Cr.P.C is essentially a judicial
function. It must be borne in mind that the very purpose of authorizing remand
under Section 167Cr.P.C arises on account of the fact that investigation
cannot be completed within 24 hours. The Magistrate is, therefore, required to
peruse the report of the police, containing the checklist and the reasons and
materials forwarded by the police officer, and record its satisfaction thereon,
before authorizing detention.
n) While exercising jurisdiction to remand
under Section 167 Cr.P.C the Magistrate is not required to write an
elaborate order http://www.judis.nic.in granting or refusing remand.
However, as the Magistrate acts judicially in deciding an application for
remand, he is required to briefly set out his reasons.In the event of a
challenge before a superior forum this would enable the Court to judicially
review the order to see that discretion under Section 167 Cr.P.C has
been exercised within the bounds of the law. The practice of passing
non-speaking orders of remand and mechanically extending the same is illegal
and must be avoided.
o) 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.
p) Authorising detention without recording
reasons as aforesaid by the Judicial Magistrate concerned shall be liable for
departmental action by the High Court.
E-BOOK
SAVING LONG FIGHTS
AND YEARS FROM COURTS
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The Madras High Court in another decision
of Antipatory Bail has opined that :-
the accused need not be arrested in all criminal cases at the stage of
investigation and the probe can be carried out effectively without custodial
interrogation.
Justice
Anand Venkatesh made the observation while granting anticipatory bail to an
accused in a matrimonial dispute case and asked the police to pull up their
socks and show more quality and maturity in investigation. The judge took note of the filing of anticipatory bail petitions by various
people apprehending detention, especially against "Friday night
arrests", a popular euphemism for arrests made on a Friday or a day prior
to court holidays to ensure that the accused does not come out on bail
immediately.
"The
police must be made to understand that all criminal cases need not necessarily
involve arrest of accused persons during investigation and an effective
investigation can be done even otherwise. A change in attitude will bring down
unnecessary filing of anticipatory bail petitions," the judge said.
He
further said it was not necessary that the police must take a decision about
resorting to the procedure under Section 41-A of the Code of Criminal Procedure
(CrPC) only when an anticipatory bail petition was filed, adding that they
could independently take a decision in accordance with the guidelines.
Under Section 41-A, CrPC, a police officer, in all cases where the arrest of a person
is not required under Section 41(1), shall issue a notice directing the person
against whom a reasonable complaint has been made or credible information has
been received to appear before him.
The
judge said henceforth, in all anticipatory bail petitions filed before the high
court and where the offence concerned carried a punishment of up to seven
years, the police should instruct the public prosecutor as to in which case
they would invoke Section 41-A.
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