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Avoiding Anticipatory Bail is possible by using provisions under Section 41A given by Supreme Court & High Courts of India.


Avoiding Anticipatory Bail is possible by using provisions under section 41A given by Supreme Court & High Courts of India

498a IPC Arrest
498a, How to fight 498a, Avoid Arrest Apaizers Mens rights
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
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.
   


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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:-


" MODEL Section 41A CrPC NOTICE
 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.


[Signature]
[Name and Designation]
[affix seal]
 ........................................................................


Sr.No. ...........

ACKNOWLEDGEMENT
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
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
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.


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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.

Fighting 498A
Fighting 498A


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