Police Can't Arrest Person Without Magistrate's Permission After Issuance Of 41-A CrPC Notice: Telangana High Court

The Telangana High Court has observed that after issuance of notice under Section 41-A Cr.P.C., if the police feel that the accused has to be arrested, then, without obtaining permission from the Magistrate concerned, they cannot arrest the accused.

The Bench of Justice Lalitha Kanneganti observed thus while dealing with an anticipatory bail plea filed by the application in a case registered for the offences punishable under Sections 406, 420 read with Section 34 IPC.

The case in brief

Essentially, the Counsel for the petitioner Rajender Khanna submitted that earlier, in a plea filed by the petitioner for pre-arrest bail, the Court had directed the police concerned to follow the procedure under Section 41-A Cr.P.C., and the guidelines formulated by the Supreme Court in Arnesh Kumar v. the State of Bihar.

After the disposal of the said petition, the petitioner was issued a notice under Section 41-A Cr.P.C., and he had appeared before the police on two occasions, and whenever he appeared before them, there was no receipt of acknowledgment from the police and he was constrained to send all the relevant material to the Director-General of Police as well as Commissioner of Police.

He further submitted that in all the cases where a notice under Section 41-A Cr.P.C. has been issued, the police are not issuing any acknowledgment, and sometimes, they are coming up, saying that the accused is not cooperating with the investigation and taking steps to arrest the accused.

In these circumstances, the petitioner sought pre-arrest bail.

Court's observations

Taking into account the submissions of the counsel for the petitioner, the Court noted that the High Court has already directed the Director-General of Police to frame guidelines with regard to the issuance of acknowledgment in the cases where the accused appears before the police under Section 41-A Cr.P.C.

The Court further clarified that if the accused feels that the police failed to follow the procedure under Section 41-A Cr.P.C. or the guidelines of the Apex Court in Arnesh Kumar's case, they could file a contempt petition against the concerned police officer with relevant material to substantiate their allegations.

However, the Court did underscore that merely on this basis that the police is not giving any acknowledgment, a person cannot seek anticipatory bail.

Further, observing that after issuance of notice under Section 41-A Cr.P.C., the police can arrest accused only after the permission from the Magistrate concerned, the Criminal Petition was disposed of.

The Court also directed the police concerned to follow the procedure as contemplated under Section 41-A Cr.P.C., and the guidelines formulated by the Apex Court in Arnesh Kumar's case.

Last year, in November, the Telangana High Court granted liberty to an accused to initiate proceedings against police officials if the procedure for arrest under Section 41A CrPC is violated. The Court reminded that the police are duty-bound to follow the guidelines laid down by the Supreme Court in the 'Arnesh Kumar' case for arrest.

Advocate Rajender Khanna appeared for the petitioner.

Case title: Syed Inayathullah vs The State Of Telangana

Case Citation: 2022 LiveLaw (Tel) 11

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