Plea For Anticipatory Bail Maintainable Even After Section 41A CrPC Notice Issued By Police : Karnataka High Court

A single bench of Justices Shivashankar Amarannavar, while allowing a petition filed by Ramappa @ Ramesh seeking anticipatory bail, said:

"A person gets apprehension of being arrested in two situations:- firstly when a 'Notice' is issued to him under Section 41A (1) of the Code and secondly, after complying the terms of 'Notice' the police officer forms an opinion that such person ought to be arrested or in a situation, such person fails to comply the terms of 'Notice' or is unwilling to 'identify' himself. In all the above three situations such a person can maintain an anticipatory bail application as Section 41A of the Code does not stipulate the specific condition of notice of appearance."

Case Background:

The Forest Officials registered a case on 19.11.2020 for the offences punishable under Sections 80, 84, 86 and 87 of the Act, 1963, Rule 144 and 145 of Karnataka Forest Rules, 1969 and Section 379 of IPC against the unknown accused persons. During the course of investigation, the Investigating Officer has issued notice dated January 13, under Section 41-A of Cr.P.C., calling upon the petitioner to appear before him for investigation.

The petitioner has not appeared before the Investigating Officer in response to the notice as he has apprehension that if he appears before the I.O, there is likelihood of him being arrested. He filed an application seeking bail and the same came to be rejected by I Addl. District and Sessions Judge, Bagalkot by order dated 29.04.2021. Therefore, the petitioner moved the high court, seeking anticipatory bail.

Petitioner contended:

The counsel for petitioner by referring to clauses of Section 41(A) contends that the police officer, if he is of the opinion that he ought to be arrested, has to record the reasons. He further pointed out Section 41-A (4), as the petitioner has failed to comply with the terms of notice, the Investigating Officer may arrest him for the offences mentioned in the notice, if petitioner has not obtained any orders by the competent Court.

Prosecution opposed the plea

It was contended that as the arrest of the petitioner is not required under the provisions of 41(1), the Investigating Officer has issued notice under Section 41-A of Cr.P.C., directing the petitioner to appear before him for enquiry. Therefore, there is no apprehension of arrest. The Sessions Court placed reliance on the decision in the case of Jerry Paul Vs. State of Karnataka, reported in 2021(1) Kar. L.J., 550, has rightly rejected the petition of the petitioner seeking anticipatory bail. Hence, the petition seeking anticipatory bail is not maintainable.

Court findings:

The court said "The insertion of Section 41A of the Cr.P.C., it becomes clear that the legislature intended to make it compulsory for the police to record reasons for making an arrest, as well as for not making an arrest in respect of a cognizable offence for which the maximum punishment is upto seven years. Hence Section 41 was amended and proviso to Section 41 was inserted whereas Section 41A of Cr.P.C. was inserted to make it compulsory for the police to issue a notice in all such cases where arrest is not required to be made under clause (b) of sub-section (1) of the amended Section 41."

It added "The insertion of Section 41A Cr.P.C, pertaining to issuance of 'Notice of Appearance', is in line with the Right of Life and Liberty of the citizens and seeks to help to bring down the number of arrests, which in turn would decongest the crowded Indian Jails.

Simultaneously, the innocents too can feel secure in case they stand a chance of exposure to implication in fake cases. The amendment provides that the police officer shall, instead of arresting the person concerned, issue a notice of appearance, asking him to cooperate with the police officer in the probe. No arrest will be made in a non-cognizable offence except under a warrant or order of Magistrate."

The court then went on to opine "Section 41A of the Code operates in a situation where there is no arrest and prescribes the course of option to be adopted by a police officer in case he decides not to arrest any person. Till the time any person is not arrested, he is entitled to maintain an application for grant of anticipatory bail, subject to, of course, the applicability of any other law to the contrary."

The court also said "Section 41A of the Cr.P.C. defers the arrest until and unless sufficient evidence is collected, so as to produce or forward the accused to the custody of the court. The apprehension of arrest, thus, does not completely vanish away on the issuance of notice of appearance under Section 41A of the Cr.P.C., and hence, the question being raised in maintainability of an application under Section 438 Cr.P.C., during the pendency of notice being issued under Section 41A Cr.P.C. or during the compliance of the terms of such notice, is completely unwarranted and is not in tune with the provisions of law."

It concluded by saying "The apprehension of arrest always does exist even after issuance of notice of appearance under Section 41A Cr.P.C. and under such circumstance the Courts cannot evade to entertain an application under Section 438 Cr.P.C. Therefore, there is an apprehension of arrest of the petitioner since the Investigating Officer may collect evidence and record reasons against the petitioner and may arrest him."

Accordingly it allowed the petition filed and granted anticipatory bail on execution of a personal bond for a sum of Rs.1,00,000, with one surety for the like sum to the satisfaction of the Investigating Officer.

It also directed that the petitioner shall voluntarily appear before the Investigating Officer within fifteen days from today. The petitioner shall cooperate with the investigation and make himself available for interrogation whenever required. Not to make any inducement, threat or promise to any witness acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer. He shall not obstruct or hamper the Police investigation and not play mischief with the evidence collected or yet be collected by the Police.