By Khushi-
Union Law Department has amended CrPC section 41A and cancelled the police station bail in order to check corruption in the police department. From now onwards bails will be granted by the courts only and a gazette notification was also issued in this regard. Earlier, police station could grant bail with a possibility of accused facing a jail sentence upto seven years. There were serious allegations that police stations were looting the victims under the pretext of giving bail. However, a section argued that courts have to be approached for bail by the accused in each and every case and courts may not have time to deal with small cases. But as per the new rule the SHO will have to file the case and produce the accused in the court.
Section 41A of CrPC states that:
Notice of appearance before police officer: (1) the police officer shall in all cases where the arrest of a person is not required under the provision 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 suspicious exist 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 officers 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 willing to identify himself, the police officer may, subject to such order as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice.
Section 41A stipulates that the police officer shall in all cases where he decided not to make the arrest, issue notice to the persons complained against to appear before him to make necessary inquiries. If he does not cooperate the police officer may get him arrested after obtaining orders of the magistrate.
ARREST NOT NECESSARY DURING PROBE IN ALL CASES:
Madras high court held that the accused need not be arrested in all criminal cases at the stage of investigation and the probe can be carried out effectively without custodial interrogation.
Justice Anand Venkatesh said that the “police must to understand that all criminal cases need not necessarily involve arrest of accused persons during investigation and an effective investigation can be done even otherwise. A change in attitude will bring down unnecessary filing of anticipatory bail petitions”.
Under section 41A, CrPC, a police officer, in all cases where arrest of a person is not required under section 41(1), shall issue a notice directing the person against whom a reasonable complaint has been made or credible information has been received to appear before him.
The judge said, in all anticipatory bail petition filed before the high court and where the offence concerned carried a punishment of up to seven years, the police should instruct the public prosecutor as to in which case they would invoke section 41-A. the court would pass the necessary order after recording the decision of the police with regards to section 41-A, he added. Earlier, Justice Venkatesh granted anticipatory bail in a case in which the accused was alleged to be the instigator for the second marriage of a person when the first marriage was in force.
CASE LAW:
ARNESH KUMAR V. STATE OF BIHAR (2014) 8 SCC 273:
Mr. Sekhar Basu, learned senior counsel appearing on behalf of the petitioner first contended since in this case none of the offences involved is punishable exceeding 7 years, now in the light of the decision of the apex court in the case of Arnesh Kumar V. State of Bihar and Anr. Reported in (2014) 8 SCC 273, it is incumbent for the investigating officer to issue a notice under section 41A CrPC within 15 days from the date of institution of the case and such notice not being extended by the concerned S.P., the attempt made by the investigating officer to arrest the petitioner, is totally illegal and in violation of direction issued by the Hon’ble Supreme court.
Notice of appearance in terms of section 41A be served on the accused within two weeks from the date of institution of the case, which may be extended by the superintendent of police of the district for the reason to be recorded in writing
Failure to comply with the directions aforesaid shall apart from rendering the police officer concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before high court having territorial jurisdiction.
The learned public prosecutor refuting the contention of Mr. Basu, submitted that nowhere in the case of Arnesh Kumar V. State of Bihar, the apex court observed that it is must for the police to issue notice under section 41A before arrest of a person in connection with any case involving an offence punishable upto 7 years. He further submitted in this case at all there is no violation of any direction of the apex court by the police. He further submitted that the notice under section 41A CrPC is necessary where police decides not to arrest an accused and not where arrest is necessary for the purpose of investigation. He then submitted in this case the allegations are quite serious and a student is making complaint against the secretary of the B.Ed. College for demanding illegal gratification for qualifying him to appear in final examination for B.Ed. course. He further submitted according to that student and other students of that college, the petitioner not only now making such illegal demand but even at the time of their admission huge money was obtaining from them as a consideration for their admission in the course. He further added that the students did not disclose about payment of huge money to the petitioner at the time of their admission because they were afraid to their future and now they without having any alternative have gone to the police. The learned public prosecutor produced the case diary and brought to our notice the relevant materials collected during investigation.
Hear the learned counsel appearing on behalf of the parties. Considered their respective submission and persuaded the case diary and the ruling cited.
Already in this order, the direction of the Hon’ble Apex Court has been quoted. On careful consideration of those directions, hardly there is any scope to say that the apex court ever directed, if not expressly but even impliedly that in a case of this nature, issuance of notice under section 41A CrPC is mandatory. Now, according to the provisions of 41A CrPC, we find the learned public prosecutor is absolutely correct that such notice is required to be served where the investigating agency found that the arrest of the accused is not required under sub-section 1 of section 41. The language of the provision of section 41A CrPC is quite clear and there is no remote ambiguity, therefore and after the authoritative pronouncement of the apex court in the case of Arnesh Kumar V. state of Bihar, the said provision need no further interpretation. It is true that the Hon’ble apex court observed in all cases, where offence is punishable for a term which may be less than 7 years or may be extended upto 7 years, whether with or without fine, the arrest of the accused is not automatic and before arrest the investigating officer must satisfy himself about the necessity of arrest in terms of the parameter laid down in section 41 CrPC. The apex court has also laid down that the investigating officer shall always file and furnish the reason and the materials which necessitated the arrest of the accused, while forwarding/producing him before the magistrate for further detention and the magistrate only after recorded his satisfaction from perusal of the report furnished by the police shall authorize detention.
CONCLUSION:
To check the corruption the union law department has abolished the police station bail by amending the section 41A of CrPC. And from now the bail will be granted by the courts only and a gazette notification was also issued in this regards. Earlier there were serious allegations that the police stations were looting the victims under the pretext of giving bail. However, according to the new rule the SHO will have to file the case and produce the accused in the court.