NOT SERVING NOTICE IN OFFENCE OF SENTENCE UPTO 7 YEARS ATTRACTS CONTEMPT PROCEEDINGS AGAINST POLICE

Updated: Nov 27, 2021

Section 41A CrPC provides that:-

"41A. Notice of appearance before police officer.-(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, 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.

(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."


In this way, Amendment of 2009 made it clear that notice under section 41A has to be served upon an accused and he shall not be arrested if continues to complies with the notice.


Also, in the landmark judgment of “Arnesh Kumar v. State of Bihar”, 2014 (3) RCR (criminal) 527 it has been held by the Hon’ble Apex Court of India that:-

11. Aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.P.C., the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.P.C. has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.


12. We are of the opinion that if the provisions of Section 41, Cr.P.C. which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.P.C. for effecting arrest be discouraged and discontinued.


13. Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:-

(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C.;

(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

(6) Notice of appearance in terms of Section 41A of Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

(7) 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 to be instituted before High Court having territorial jurisdiction.

(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.


14. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

In the present section 420 IPC has been imposed in the present FIR in which also punishment is also up to seven years which means that guidelines issued by the Hon’ble Supreme Court are very well applicable in the present case also.


That recently, in May 2021 while issuing guidelines in Re : Contagion of Covid 19 Virus In Prisons, Hon’ble Supreme Court of India on 07.05.2021 has reiterated the guidelines of Arnesh Kumar judgment which are as follows:-

9. As a first measure, this Court, being the sentinel on the qui vive of the fundamental rights, needs to strictly control and limit the authorities from arresting accused in contravention of guidelines laid down by this Court in Arnesh Kumar v. State of Bihar (supra) during pandemic. It may be relevant to quote the same:


11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:


11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;


11.2. All police officers be provided with a check list containing specified subclauses under Section 41(1)(b)(ii);


11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;


11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;


11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.6. Notice of appearance in terms of Section 41A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;


11.7. 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 to be instituted before the High Court having territorial jurisdiction.


11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.


12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine.

Therefore, not just the Policemen, even Magistrate can also be made liable for Departmental action as per the above-stated judgments.



CASE LAW:


On the basis of above-said Arnesh Kumar judgment, our Law Firm has filed a contempt petition in the Hon’ble High Court of Punjab and Haryana COCP No.2521 of 2021 in which our client Ram Lal Chaudhary has been picked up from his office on 11.11.2021 i.e. on the same day of registration of FIR No. 177 dated 11.11.2021 registered under sections 420, 120B IPC at Police Station 34, Chandigarh without any service of notice under section 41-A CRPC. In this case, section 420 IPC prescribes punishment which is upto 7 years and hence, guidelines of Arnesh Kumar are very well applicable to the present case.


Also, Mr. Navkiran Singh argued that in the present case, guidelines issued by the Hon’ble Supreme Court in the Lalita Kumari v. State of UP have also been violated in the present case as present case pertains to commercial / monetary transactions for which preliminary enquiry should have been conducted and also, there is an undue delay of 5 years in lodging of complaint which is unjustified and unreasoned which again warrants a preliminary enquiry, however, without any enquiry or any notice, petitioner has been straight away picked up from his office even prior to the registration of the FIR from his Office and has been illegally detained and hence, respondent in this way have violated the guidelines of Hon’ble Supreme Court.


In the said case, Hon’ble Punjab and Haryana High Court has issued Notice of Motion to Narinder Patial SHO Sector-31 Chandigarh for 20.12.2012.


News Coverage: https://www.singhlawyers.com/post/chandigarh-high-court-puts-sec-31-sho-on-notice




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