Notice of Appearance Before Police in India; Legal Remedies

Notice of Appearance : Section 41 A of the Code of Criminal Procedure, 1973 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.

But, all the same, unwillingness of a person who has not been arrested to identify himself and to whom a notice has been issued under Section 41-A, could be a ground for his arrest.

Legislation has laid down various parameters, warranting arrest of a person, which itself is a check on arbitrary or unwarranted arrest and the right to personal liberty guaranteed under Article 21 of the Constitution of India.

See Also : When Police May Arrest Without Warrant; 25 Situations

For better appreciation Section 41-A of the Cr.P.C. inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) w.e.f. 1-11-2010, is quoted below:-

# “41A – 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 provisions 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 suspicion exists 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 officer 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 unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.”

This provision needs to be read with the provision of Section 41 of the Code.

If the provision of the old Code is compared with the amended provision it can be said that some restrictions are put on the powers of the police to arrest.

They are expected to give now reasons when the offence is punishable with imprisonment upto 7 years.

The Apex Court had an opportunity to discuss this provision in the case reported as Hema Mishra v. State of U.P., (2014) 4 SCC 453.

Object behind Section 41A

The above mentioned provisions 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.

But, all the same, unwillingness of a person who has not been arrested to identify himself and to whom a notice has been issued under Section 41-A, could be a ground for his arrest.

The legislation has laid down various parameters, warranting arrest of a person, which itself is a check on arbitrary or unwarranted arrest and the right to personal liberty guaranteed under Article 21 of the Constitution of India.

The interpretation done by the Apex Court and the provision itself show that whenever notice is issued to any person by the investigating officer, such person is bound to comply with the terms of the notice considering the wording of section and considering provision of Section 41-A(1) which provides that satisfaction of the investigating officer is sufficient for issuing such notice and that can be done even on reasonable suspicion.

It can be said that Courts are not expected to lightly interfere in this power of the police. It always needs to be kept in mind by the Courts that it is the statutory power given to the police to make investigation and the persons interested are always trying to use some provisions to protract the things.

It needs to be kept in mind that some restrictions are put on the powers given to police in section 41 of the Code but the powers of arrest are still kept there.

The wording used, the circumstances mentioned for using the provision of section 41-A are similar to the provisions of section 41 of the Code.

In view of the wording, it needs to be presumed that it depends on the subjective satisfaction of the police officer issuing such notice whether to use this procedure or not.

The power under section 41-A is a part of the power given under section 41 of the Code.

It can be said that by following procedure given in section 41-A of the Code, the investigating officer gives opportunity to the accused or suspect to explain the things and that way the provision is for the benefit of the accused or the suspect.

A suspect or accused can avoid unnecessary arrest by taking this opportunity.

The provision of section 41-A (3) of the Code shows that after the appearance of the accused/suspect and the compliance of the conditions of the notice by the accused the investigating officer needs to give reasons if he forms opinion that such person needs to be arrested.

Thus the provision enables the police officer to collect information from the accused/suspect without effecting arrest.

The provision of section 41 of Code is never declared ultra vires and section 41-A is introduced in the Code to see that the power of arrest given under section 41 is not used unnecessarily.

It is a safeguard on casual exercise of the power given under section 41 of the Code.

Notice of appearance in terms of Section 41A of Cr.PC 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 reasons to be recorded in writing.

See Also : 

  • Tarkeshwar Ram v. State of Bihar {Patna High Court, 30 Mar 2016}
  • Jagdishprasad v. State of Maharashtra {Bombay High Court, 31 Mar 2015}
  • Rajathi v. State {Madras High Court, 20 Jan 2015}
  • Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
  • Hema Mishra v. State of UP, (2014) 4 SCC 453
  • Kumari Hema Mishra v. State of U.P., 2014 Cr. L.J. 1107

Comments