Arrest made by various investigating agencies when offence is punishable with imprisonment for a period of seven years or less no doubt raises eyebrows and questions the necessity to arrest in such offences inspite of the law on the said subject being discussed and determined by the Hon’ ble Apex Court on several occasions, which truly goes to show that the law on the said subject is so complex and intricate that by writing this article an attempt is made to clarify the proposition of law on the said subject to the best of the writer’s knowledge and interpretation of law on the said subject.
IN Arnesh Kumar’s judgement, the Hon’ ble Supreme Court has accentuated the mandate of section 41 and 41A of the Code of Criminal Procedure and the powers of arrest as the theory to arrest first and then proceed to investigate brings humiliation casting scars forever leading the Hon’ ble Apex Court to hold the attitude to arrest first and then proceed to investigate as despicable in all offences which carry punishment up to seven years or less. Similarly in Satender Kumar Antil’s verdict the Hon’ ble Apex Court has held that courts will have to satisfy themselves on the compliance of 41 and 41A of the code and any non compliance would entitle the accused grant of bail. However in the above judgement circumstances under which an accused can be arrested without issuance of 41A notice are also envisaged subject to conditions and grounds.
IN every offence punishable with imprisonment up to seven years, issuance of 41A Notice is mandatory; however there are exceptions to it which will be elaborated later. An arrest in such offences upon issuance of 41A notice can be followed when the officer is satisfied that there is reason to believe or suspect that the accused has committed the said offence and his arrest is necessitated in order to prevent him/ her from committing any further offence or for a proper investigation and /or to prevent from either disappearing or tempering with the evidence. Arrest can be affected to prevent the accused from making inducement, threat or promise to any person in order to dissuade them from disclosing certain facts about the offence to the officer or the court. Upon issuance on 41A Notice the officer investigating the offence can record the grounds of arrest in writing in the arrest memo and proceed to arrest which clearly indicate that there is no bar in arresting an accused even after Notice under section 41A is served. However by following the mandate of law, the grounds of arrest must be communicated to the arrested person in writing at the earliest.
There are instances when in such offences the accused can be arrested even without issuing Notice under section 41A of the code; however there is a procedure to be followed by the officer if arrest is to be made without issuing issue 41 A Notice. The Hon’ble Supreme Court in Pankaj Bansal’s and Prabhir Purkayastha’s judgement by considering Article 22(1) of the Constitution of India has laid down a procedure which every officer has to follow while arresting an accused without issuing Notice u/s 41A of the code in offences punishable up to seven years imprisonment or for that matter in all offences. Considering the importance of fundamental right of the accused, the Hon ble Supreme Court has held that any person arrested for any offence has a fundamental right to be informed about the grounds of his arrest in writing and the copy of the same has to be furnished to the arrested person as a matter of course and without exception at the earliest so as to enable the arrested person to consult his advocate and oppose police custody remand and to seek bail. Reasons for arrest may be formal in nature but the grounds of arrest would be personal in nature and specific to the person arrested and as such the requirement of conveying the grounds of arrest to the accused person for enabling him to defend himself by objecting police custody remand and seek bail is mandatory and non compliance of this constitutional requirement and mandate would lead to the custody or the detention being rendered illegal.
There are various modes prescribed under the Code of Criminal Procedure to serve Notice U/s 41A to the accused which includes serving Notice directly to the Accused or to any adult member of the family or by affixing the same to some conspicuous part of the house of the accused or through registered post. The Hon’ ble Supreme Court recently held that Notice u/s 41A of the Code of Criminal Procedure should not be served through Whtsapp or other electronic modes and service of 41A Notice through Whtsapp or other electronic modes cannot be considered or recognized as an alternative or substitute to the mode of service recognized and prescribed under the Code of Criminal Procedure. Therefore from the above it becomes clear that the procedural compliance mandated in section 41 and 41A of the Code of Criminal Procedure and the procedure prescribed in the Code for service of Notice u/s 41A have to be strictly adhered to as every accused is presumed to be innocent until proven guilty.
Section 35 of the Bharatiya Nagrik Suraksha Sanhita , 2023(BNSS, 2023) corresponds to Section 41 and 41A of the Code of Criminal Procedure, 1973 ( Cr. P.C)