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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
Ashwin.C, S/o.Gireeshan.C. – Appellant
Versus
State Of Kerala – Respondent
Crl.MC No. 5686 of 2024
Decided on : 22-08-2024
Criminal - Notice - Section 41A Cr.P.C., Section 35 BNSS - The court interpreted the mandatory nature of notice issuance under Section 41A of the Cr.P.C. and its corresponding provision in the BNSS, concluding that such notice is not applicable post-arrest and bail.
Fact of the Case:
The petitioner, the sole accused in a pending criminal case, challenged a notice issued under Section 41A of the Cr.P.C. after being released on bail, arguing its legal sustainability.
Finding of the Court:
The court found that the issuance of notice under Section 41A of the Cr.P.C. after the petitioner was already arrested and released on bail was not legally permissible and thus quashed the notice.
Issues: Whether the notice issued under Section 41A of the Cr.P.C. after the arrest and release of the accused on bail is legally sustainable.
Ratio Decidendi: The court held that the mandatory issuance of notice under Section 41A of the Cr.P.C. does not apply once an accused has been arrested and released on bail.
Result: The notice under Section 41A of the Cr.P.C. was quashed as it was found to be unnecessary.
Based on the provided legal document, the key points are as follows:
The issuance of a notice under Section 41A of the Criminal Procedure Code (Cr.P.C.) is mandatory only in specific situations where the arrest of a person is not required, such as when a reasonable complaint, credible information, or suspicion exists that a person has committed a cognizable offence (!) (!) .
The notice under Section 41A is intended to direct the person to appear before the police and is not meant to secure the presence of the accused during further investigation or questioning, which may be conducted with proper permission from the court (!) .
The law clarifies that the issuance of such a notice is not applicable after the accused has been arrested and released on bail. In such cases, issuing a notice under Section 41A or its equivalent in the relevant legislation is not legally sustainable (!) (!) .
The court held that the notice issued after the petitioner was already arrested and released on bail was unnecessary and quashed it accordingly. Instead, the investigation should proceed in accordance with the bail conditions or through proper court permission if further questioning is required (!) .
The decision emphasizes that the Investigating Officer should issue notices or seek court permission only in accordance with the applicable provisions and conditions, especially considering the status of the accused (e.g., post-bail release) (!) .
In summary, the issuance of a notice under Section 41A of the Cr.P.C. after an accused has been arrested and released on bail is not permissible, and any such notice should be quashed if issued in contravention of this principle. The investigation must then proceed in accordance with existing legal procedures and court permissions where necessary.
ORDER :
This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘the BNSS’ hereinafter), by the petitioner, who is the sole accused in Crime No.171/2021 of Ambalavayal police station, Wayanad, now pending as S.C.No.419/2021 on the files of the Fast Track Special Court, Sulthan Bathery and the prayers sought for as under:
ii) Any other appropriate order or direction as the Hon’ble Court may be pleased to grant in the circumstances of the case.
iii) This Hon’ble Court may be pleased to dispense with translation of the documents produced in vernacular language.
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the relevant documents.
3. The petitioner is aggrieved by issuance of Annexure A7 notice, dated 29.6.2024, whereby, he was directed to appear before the Station House Officer, Ambalavayal Police Station, at 10.a.m. on 4.7.2024, in connection with Crime No.171/2021, by issuing notice under Section 41A of the Code of Criminal Procedure (for short, ‘the Cr.P.C.’ hereinafter).
4. According to the learned counsel for the petitioner, earlier, the petitioner obtained bail in this crime and was released on bond and issuance of notice under Section 41A of the Cr.P.C. after arrest and release the petitioner on bail, is not legally permissible.
5. The learned Public Prosecutor, when asked to justify issuance of notice under Section 41A of the Cr.P.C. in this context, he also would submit that, Section 41A of the Cr.P.C. would apply in the contingencies dealt under Section 41A and not after arrest and release of the petitioner on bail.
6. The question arises for consideration is, whether Annexure A7 notice issued under Section 41A of the Cr.P.C. in a crime after arrest and release of an accused, is legally sustainable?
7. In this connection, it is necessary to extract Section 41A of the Cr.P.C. and the same reads as under:
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.
8. In this context, it is relevant to extract Sections 35(3), (4), (5), (6) and (7) of the BNSS. The same reads as under:
35(2) xxxx
(3) The police officer shall, in all cases where the arrest of a person is not required under subsection (1) issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(4) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(5) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice un
Issuance of notice under Section 41A of the Cr.P.C. is mandatory only in specific contingencies and does not apply post-arrest and bail.
Police notice for appearance – I.O. has to be careful and specific while issuing notice.
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Notices issued without disclosing the corresponding FIR and crime details violate legal standards under Section 41-A of the Cr.P.C., necessitating all mandatory information for legal validity.
Notices under Section 41A of the Cr.P.C. must include the crime number and relevant details to ensure transparency and protect the rights of the noticee.
Arrest – Non-service of mandatory Section 41A notice may vitiate arrest.
(1) Arrest by a Police Officer is a mere statutory discretion which facilitates him to conduct proper investigation, in the form of collection of evidence and shall not be termed as mandatory.(2) Arr....
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