Notice To Accused: Section 41A CrPC Versus Section 160 CrPC

Section 160, Chapter XII CrPC (Now, section 179 BNSS) empowers the police officer to require the attendance before himself of any person who appears to be acquainted with the facts and circumstances of the case and where such order is passed by the investigating officer, the person on whom the order is served is bound to attend.

Although the marginal heading of the section uses the word 'Police officer's power to require the attendance of witnesses', the section uses the phrase, 'any person acquainted with the facts and circumstances of the case'. The question which frequently arises before courts of law is whether an accused person can also be summoned by IO under section 160 CrPC/179 BNSS for the purpose of investigation. Moreover, what is the scope of section 41A CrPC/35(3) BNSS for the examination of such accused person?

Although the word under section 160 CrPC/179 BNSS, uses the word 'examine', often, accused persons are also issued notices under this section for 'interrogation'. Such examination and interrogation of accused persons is necessary for a) Giving the right direction to the investigation, b) confronting the accused with the evidence appearing against him and recording his possible defense, c) when facts especially within the knowledge of the accused person need to be ascertained, d) for discovery of material facts and recovery of incriminating evidence.

A three-judge bench in State Rep. by Inspector of Police and others. vs. N.M.T. Joy Immaculate, 2004 INSC 334, while dealing with a completely unrelated issue, passed an obiter,

“22. Section 160 of the Code of Criminal Procedure deals with the police officer's power to require attendance of witnesses. This Section aims at securing the attendance of persons who would supply the necessary information in respect of the commission of an offence and would be examined as witnesses in the inquiry or trial therefore. This Section applies only to the cases of persons who appear to be acquainted with the circumstances of the case, i.e. the witnesses or possible witnesses only. An order under this Section cannot be made requiring the attendance of an accused person with a view to his answering the charge made against him…………………… As an accused cannot be examined as a witness either for or against himself, he cannot be included in the class of persons referred to in the Section…………….24. In our opinion, the High Court has committed a serious error in giving such a direction contrary to the statutory provisions under Section 160 of the Cr.P.C. which is applicable only to the witnesses and not the accused”.

The accused person was excluded from the rigors of section 160 CrPC and according to this judgment, a notice to the accused cannot be issued under section 160 CrPC. This aspect of judgment has been followed in V.T. Lazar and others. vs. The Inspector of Police, Poonamallee Police Station, Crl. O.P. No. 14796 of 2022.

In the opinion of the author, this dictum in Joy Immaculate is merely an obiter that seeks to unnecessarily tie the hands of the investigating agency and is not the ratio decidendi of the issue. Moreover, the judgment in N.M.T. Joy Immaculate suffers from judicial impropriety as it fails to take into consideration another three-judge bench judgment in Nandini Satpathy vs Dani (P.L.), 1978 2 SCC 424, wherein it was held:

“We hold that 'any person supposed to be acquainted with the facts and circumstances of the case' includes an accused person who fills that role because the police suppose him to have committed the crime and must, therefore, be familiar with the facts. The supposition may later prove a fiction but that does not repel the section. Nor does the marginal note 'examination of witnesses by police' clinch the matter. A marginal note clears ambiguity but does not control meaning. Moreover, the suppositions accused figures functionally as a witness. 'To be a witness', from a functional angle, is to impart knowledge in respect of a relevant fact, and that is precisely the purpose of questioning the accused under S. 161, Cr.P.C. The dichotomy between 'witnesses' and 'accused' used as terms of art, does not hold good here……To hold otherwise is to fold up investigative exercise, since questioning suspect is desirable for detection of crime and even protection of the accused.”

Thus, it is clear that notice under section 160 CrPC (which uses the words 'any person') can be issued either to the accused (whether FIR named or not), suspect, or witness.

This view has been adopted by several High Courts. The Hon'ble Madras High Court in Pulavar B.M. Senguttuvan vs. The State, 2004 C riLJ 558, held that section 160 CrPC notice can be issued to the accused. A similar issue cropped up before the Hon'ble High Court of Andhra Pradesh in Devagupthapu Hara Venkata Surya Satynarayana Murthy Vs. The State of Andhra Pradesh and Ors, 2023 CriLJ 1037 wherein the petitioner/accused contended that the accused person having served notice under section 41A CrPC cannot be subsequently issued notice to appear under section 160 CrPC. The Hon'ble High Court held that N.M.T. Joy Immaculate does not lay down the correct law vis-à-vis section 160 CrPC as the observation regarding section 160 CrPC was not the majority opinion.

Thus, the petitioner cannot seek to impeach notices under section 160 CrPC on the ground that no such notice under Section 160(1) Cr.P.C. can be given to an accused.

Interplay between 41A CrPC and Section 160 CrPC

In an interesting submission before the Hon'ble High Court of Punjab and Haryana in the matter of Harmandeep Singh Vs. State of Punjab and Ors, CRM-M-34203-2021, it was contended that if the accused is to be summoned for investigation, then he should be summoned only under section 41A CrPC and not 160 CrPC. The petitioner further stated that when an accused is summoned under section 160 CrPC, there is an imminent risk that he may be arrested even though he complies with the notice (may refer, Sutapa Adhikari & Ors v State of West Bengal & Anr, CRR 2464 of 2022). However, section 41A notice is issued only when a police officer has made up its mind that arrest of the petitioner is not required. Moreover, the accused cannot be arrested so long as he complies with such notice [section 41A(3)].

Although the Hon'ble High Court in Harmandeep Singh Vs. State of Punjab without going into the interplay between notices under sections 41A CrPC and section 160 CrPC, dismissed the petition, however, in the opinion of the author, this issue needs some clarity.

It is no doubt true that an accused person (whether FIR named or not) can be summoned for examination/interrogation during an ongoing investigation by giving him notice either under section 41A CrPC or section 160 CrPC, however, the rigor, scope & purpose of these two sections are qualitatively different.

In complex cases involving numerous transactions and facts spiralling like a spider's web, it is difficult for the IO to ascertain whether the arrest of the accused is required until some investigation has been done. During this stage, if examination of the accused is considered necessary, then notice under section 160 CrPC is issued. Once evidence establishing prima facie cognizable offense against the accused is collected, a decision is to be made whether the arrest of the accused is required or not. If an arrest is not required then a section 41A CrPC notice may be sent to the accused for further examination (Arnesh Kumar vs. State of Bihar, 2014 8 SCC 273)

Section 160 notice can be issued to a person within the jurisdiction of police station or adjoining police station, however, there is no such jurisdictional restriction under section 41A CrPC. Moreover, section 160 of CrPC prohibits the police officer from requiring the attendance of certain categories of persons in the police station, for example, women, children under 15 years of age, men above 65 years of age, and mentally/physically disabled persons. However, such restriction does not find a place under section 41A CrPC. (It is pertinent to mention that section 179 BNSS which corresponds to section 160 CrPC has introduced, among other things, a new category of persons suffering from acute illnesses).

Recently, the Hon'ble Supreme Court in Arvind Kejriwal vs. Central Bureau of Investigation 2024 INSC 687 has clarified that section 41A CrPC does not, in any manner, mandate a blanket ban on the arrest of an individual.

The issue of personal liberty is sacrosanct and is jealously guarded. Several safeguards are injected in section 41A CrPC and 160 CrPC to prevent infringement of fundamental rights under article 20(3) of the Constitution. While guarding the rights of the accused, the rights of the victim and the duty of law enforcement agencies cannot be lost sight of. Police must retain the power to summon the accused/suspect and question him to unearth the offense. However, while doing that, police should also be conscious of the scope of power derived from section 41A CrPC or section 160 CrPC and must not act in breach of it.

The author is an assistant public prosecutor with the Central Bureau of Investigation. Views expressed are personal opinions.