When a police officer can issue a notice directing a person whose arrest is not required under Section 41 to appear before him?

Question: When a police officer can issue a notice directing a person whose arrest is not required under Section 41 to appear before him?

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Answer

Section 41A was added by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009). However, after the enactment of this Amendment, representations were received by the Union Government. Thus, some specific amendments were brought in by the Code of Criminal Procedure (Amendment) Act, 2010 (41 of 2010).

The 2010 amendment ensured that a police officer issue such Notice by substituting ‘shall’ in place of may vide section 3(a) of the 2010 amendment Act. The Amendment also enacted a proviso to section 41(1)(b)(ii) providing for recording of reasons for not arresting an accused.

However, the Supreme Court directed in Arnesh Kumar v. State of Bihar, 2014 8 SCC 273 case that issuing a notice of appearance under Section 41A was thoughtfully implemented.

The Supreme Court held that their endeavour in this judgment is to ensure that a police officer does not arrest any accused unnecessarily, and the Magistrate does not authorize detention casually and mechanically.

Section 41A provides about the notice of appearance before a police officer. It states that-

(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.

According to Section 41A of the Cr.P.C., if the Police think the arrest of a person is not required, at that point, it would be legitimately judicious to give a notice which coordinates an individual against whom a sensible protest has been made and wherein a sensible doubt keeps on continuing, guiding the blamed being referred to show up before the official or at any place determined by Notice.

It is the lawful obligation of the individual against whom the Notice has been coordinated to follow the Notice, and as long as he keeps on conforming to the states of the Notice, he will not be arrested, and wherein he neglects to do as such, he is subject to be detained relying on requests passed by a Competent Court.

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