IMPORTANT POINT
Arrest – Non-service of mandatory Section 41A notice may vitiate arrest.

JUDGMENT

At the outset, learned counsel for the petitioner seeks leave to amend the prayer clause. Leave granted. Amendment to be carried out during the course of the day and amended copy be served on the office of the Public Prosecutor/Public Prosecutor.

2. By this petition, the petitioner has impugned his illegal arrest by the police; non-compliance of Section 41A of the Code of Criminal Procedure (‘Cr.PC’) and several other grounds have been raised in the aforesaid petition.

3. The grievance of the learned counsel for the petitioner is that the petitioner was not served with the mandatory Section 41A notice as required considering the offence was one under Section 420 r/w 34 of the Indian Penal Code, registered with the L.T. Marg Police Station, Mumbai, vide C.R. No.232 of 2024. According to the petitioner, the said FIR was registered on 11th March 2024. Admittedly, the petitioner was not named in the FIR. It is the petitioner’s case that on 19th March 2024, two to three persons, who were later identified to be police officers including respondent No.2 approached the petitioner in his shop at Ahmedabad in plain clothes and picked-up the petitioner. Learned counsel relied on the CCTV footage screen shots annexed to the petition, which are at Exhibit – “D” (colly) of the petition. It is submitted that the said persons who were police detained the petitioner from his place of work and did not serve him a notice under Section 41A Cr.PC. This, according to the petitioner was in clear violation of the mandate of the Apex Court in the case of Satender Kumar Antil vs. Central Bureau of Investigation and Another, (2022) 10 SCC 51 and Arnesh Kumar vs. State of Bihar and Another, (2014) 8 SCC 273. Learned counsel further submits that the petitioner was picked-up and brought to Mumbai, without seeking any transit remand, as required under Section 57 Cr.PC. In this context, learned counsel for the petitioner relied on the judgment of the Apex Court in the case of Priya Indoria vs. State of Karnataka and Others. Etc., SLP (Crl) Nos.11423-11426 of 2023 decided on 20.11.2023, in particular, para 34 of the said judgment.

4. Learned counsel for the petitioner submits that Section 41A notice was subsequently prepared by the police after the petitioner was brought to Mumbai and the petitioner’s signature/thumb impression on the said notice was taken forcibly i.e. on Section 41A notice. He submits that the fact that Section 41A notice is not served on the petitioner, is evident from the CCTV footage i.e. the police were not carrying any papers with them, when they picked-up the petitioner. Learned counsel further submits that no arrest memo was provided to the petitioner, nor the grounds of arrest informed to the petitioner or his relatives/family members, either orally or in writing, at the time, when the petitioner was forcibly picked-up from Ahmedabad. It is also submitted that the arrest was made by plain clothes police officers with no identity on their person so as to disclose that they were police officers and as such there was clear violation of the judgment of the Apex Court in the case of D.K. Basu vs. State of West Bengal, (1997) 1 SCC 416.

5. Learned counsel for the petitioner also submits that the petitioner’s phone was used by the Investigating Officer for almost 10 days and that the officer would be talking on the petitioner’s phone to the petitioner’s father and brother. Learned counsel relied on the screen shots of the calls received and audio recording of the coversation between the officer and the petitioner’s father and others. He submits that the audio recording will show that money was demanded from the petitioner’s father to settle the matter. He further submits that the respondent No.2 even misled the petitioner’s lawyer by disclosing that he was in Rajasthan alongwith the petitioner, whereas the CCTV footage of the police station showed the presence of the petitioner within the premises of the L.T. Marg Police Station. L