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2023 Supreme(Gau) 1540
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
PARTHIVJYOTI SAIKIA, J.
Deep Jyoti Nath – Petitioner
Versus
The State of Assam – Respondent
Bail Application No. 480 of 2023
Decided On : 22-02-2023
Advocate Appeared:
For the Petitioner: A. Goyal.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 439 and Section 41A - Bail application - Allegations of misappropriation leading to arrest - Requirement for notice under Section 41A not fulfilled - Non-compliance grants entitlement to bail as per Supreme Court precedents. (Paras 4, 5, 6)
Facts of the case:
The petitioner, an employee of Instakart Services Pvt. Ltd., allegedly misappropriated over twenty lakhs rupees and was arrested by the police without being served a notice under Section 41A Cr.P.C.
Findings of Court:
The petitioner was wrongfully arrested without adherence to statutory provisions, warranting bail.
Issues: Whether the non-compliance with requirements under Section 41A of the Cr.P.C. entitles the accused to bail.
Ratio Decidendi: The court emphasized that failure to serve a notice under Section 41A justifies bail as it contravenes the procedural rights of the accused.
Result: Bail granted.
| Table of Content |
|---|
| 1. accusation of misappropriation leading to arrest (Para 2 , 3) |
| 2. non-compliance with section 41a of cr.p.c. impacts bail (Para 4 , 5) |
| 3. petitioner's entitlement to bail due to procedural violation (Para 6) |
| 4. granting of bail and disposal of application (Para 7 , 8 , 9) |
ORDER :
1. Heard Mr. A. Goyal, the learned counsel appearing for the petitioner. Also heard Mr. D. Das, learned Addl. Public Prosecutor, Assam representing the State.
2. This is an application under Section 439 of the Cr.P.C. in respect of Dispur P.S. Case No. 177/2023 registered under Sections 420 and 408 of the IPC.
3. The petitioner is an employee Instakart Services Pvt. Ltd. He allegedly misappropriated more than twenty lakhs rupees belonging to the company. Therefore, he was physically handed over to police. The case is registered under Sections 420 and 408 of the IPC.
4. Referring to Arnesh Kumar v. State of Bihar , 2014 (8) SCC 273 , Mr. Goyal submits that in this case, notice under Section 41 A of the Cr.P.C. should have been served upon the accused. In Satender Kumar Antil v. Central Bureau Investigation and Anr. 2022 (10) SCC 81, the Supreme Court has held that non-compliance of Section 41 and 41A of the Cr.P.C. would entitle the accused for grant of bail.
5. In the case in hand, the petitioner was handed over to police by the informant and no notice under Section 41A Cr.P.C. was served upon him.
6. After perusal of the case diary, I find that simply on an allegation made by the complainant, the petitioner was thrown behind the bars. Therefore, for non-compliance of the provisions of Section 41A of the Cr.P.C. the petitioner is entitled to be released on bail.
7. Accordingly, the petitioner Deep Jyoti Nath is allowed to go on bail of Rs.25,000/- with a surety of like amount to the satisfaction of the learned Chief Judicial Magistrate, Kamrup(M), Assam.
8. Case diary shall be returned.
9. The bail application is accordingly disposed of.
