The introduction of Section 41A of the Criminal Procedure Code (Section 35 of the BNSS 2023) into the criminal procedure, along with the precedent established in Arnesh Kumar v. State of UP [AIR (2014) SC 2756], has made obtaining anticipatory bail for offences punishable by up to seven years significantly more challenging.
What is a Section 41A Notice?
Section 41A was introduced in the Code of Criminal Procedure vide an amendment made in the year 2010. The legislative intent of the said section was to provide certain safeguards against unnecessary arrests. For the convenience of the readers Section 41A is reproduced 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.”
However, police departments nationwide were not consistently following the guidelines of Section 41A notices. In response to the inconsistent implementation of this provision, the Supreme Court of India introduced strict guidelines in the Arnesh Kumar case. The Hon’ble Supreme Court of India, when establishing a threshold, held that for offences punishable up to 7 years, an investigating officer is obligated to issue a Section 41A Notice to a suspect/accused, granting them the opportunity to participate in the investigation.
Is it possible for a person to be arrested after the issuance of 41A?
Indeed, the answer to the question is clear. Simply receiving a notice under Section 41A does not completely eliminate the possibility of arrest. According to Subsection (4) of this provision, an investigating officer is authorised to arrest an individual if they do not adhere to the 'terms of notice'. Therefore, the grounds for arrest are based on the 'non-compliance' with the specified terms in a Section 41A notice. The standard terms outlined in a Section 41A notice are detailed below. This excerpt is taken from a Section 41A notice that was issued to my client, for whom I had to obtain anticipatory bail from the Hon’ble Delhi High Court.
It is now the responsibility of the investigating officer to determine whether a person has adhered to the terms of the Notice issued under 41A CrPC. As outlined in points (f) and (g) above, an individual is required to 'disclose all the facts truthfully'. In some investigations, these conditions blur the distinction between cooperation and confession. Unless a person is willing to confess, they are seen as uncooperative and subject to arrest despite being issued a 41A notice.
In relation to my client's case, the prosecution stemmed from a civil disagreement over the repayment of a loan between acquaintances. Despite this, the plaintiff reported the matter to the police as a criminal act, resulting in the filing of an FIR under Sections 406 and 420 of the IPC. During the investigation, my client was coerced into repaying the Complainant and was warned of an imminent arrest if he refused to make the required payments after being served a Section 41A Notice. The definition of ‘co-operation’ and ‘compliance’ according the Investigatin Officer was successful recovery of money.
Apprehending arrest, an anticipatory bail application was filed before the Sessions Court which was dismissed. An application for anticipatory bail was thereafter filed before the Hon’ble High Court of Delhi which was subsequently allowed. The link to the said judgment titled as Vipin Suneja vs State [Bail Application No. 2591 of 2024] is provided below:
Does a Section 41 A notice make the provision of Anticipatory Bail redundant?
In simple terms, a person can seek anticipatory bail until they are arrested. Although Section 41A lessens the concern of arrest to some degree, it does not completely remove it. Merely receiving a notice under Section 41A does not render the option of anticipatory bail unnecessary. If a person can demonstrate a genuine fear of arrest, being served a Section 41A notice will not invalidate the possibility of seeking anticipatory bail. Readers may refer to a beautifully written judgement titled as Sri Ramappa @ Ramesh vs The State of Karnataka [ILR 2021 Kar 4552] passed by Karnataka High Court encapsulating the above proposition.
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