In my blogs, I’ve highlighted the significance of Section 41A, now Section 35 BNSS (will be referred to as 41A Notice for uniformity), along with the key judgments that support this provision. This blog specifically focuses on what qualifies as a proper Section 41A notice, what constitutes an improper notice, and the remedies and strategies available to someone who receives an improper Section 41A notice. I strive to make my blogs concise yet rich in practical knowledge.
Proper form of a Section 41A Notice:
A Section 41A Notice is more than just a document requesting a suspect or accused to participate in an investigation or inquiry; legal precedents require that it follows a proper format and includes specific mandatory information.
In the judgment Amandeep Singh Johar vs. State NCT of Delhi [2018 SCC OnLine Del 13448], the Hon'ble Delhi High Court issued guidelines establishing a model format for a Section 41A Notice. This judgment requires the police department to use a serial-numbered booklet for 41A Notices, with each notice containing a unique serial number, case number, date and time for appearance, and details on the consequences of non-compliance. Additionally, it mandates that the original notice be served to the addressee, while a copy is retained in the case diary for the magistrate’s reference at the appropriate stage. Such endeavors taken by our judiciary to protect individual liberty is highly appreciated and welcomed. It was one of the breakthrough judgements which made the process of issuance of 41A Notices more transparent. An accused or a suspect was at least made aware about the details of the case for which he or she is being called to a police station or any other place as the case maybe.
In my view, understanding the reason for being called to an inquiry or investigation is essential, as it allows individuals a fair opportunity to present their defense and provide a proper explanation for the allegations against them. However, while the Amandeep Singh Johar judgment partially addressed this issue, it remains only a partial solution. Despite the judgment—later upheld by the Supreme Court in Satyender Kumar Antil [2022 10 SCC 51], the police officers across India, although listing the Case No. or FIR No. in Section 41A Notices, often fail to attach a copy of the Complaint or FIR with the notice. This omission reduces the mention of the Case No. or FIR to a mere formality.
In situations where an FIR is unavailable online, or when an FIR has not been registered and only an inquiry is being conducted, individuals have no way to obtain a copy of the FIR or complaint. This leaves them completely unaware of the nature of the alleged offense or the accusations that led to the issuance of a Section 41A Notice, as well as the specific reasons for which their presence is required.
Practical experience:
I recently handled a case in which my clients, both residents of Odisha, received a Section 41A Notice that did not follow the model format prescribed by the Hon'ble Delhi High Court. The notice lacked a serial number and contained only a complaint number, with no information about the offense or allegations against my clients. Despite repeated requests, the police failed to provide a copy of the complaint, and my clients—both women—were repeatedly urged to travel to the Cyber Police Station in Delhi for inquiry.
Fearing potential illegal action, I filed an anticipatory bail application on their behalf and secured favorable interim orders. My arguments emphasized the police’s complete refusal to inform my clients about the allegations or the purpose behind their physical presence for the investigation.
My arguments were strengthened by a recent and significant judgment by the Karnataka High Court in Tavaragi Rajashekhar Shiva Prasad vs. State of Karnataka [2024 SCC Online Kar 67]. This judgment addressed similar issues, reinforcing and expanding upon the guidelines in *Amandeep Singh Johar*. The Karnataka High Court issued mandatory directions, adding that police must attach a copy of the FIR or complaint, or provide the specific allegations, with each Section 41A Notice. The court further held that if these guidelines are not followed, the notice recipients are not obligated to appear, and the police cannot take any coercive action against them.
Conclusion:
The issuance of a Section 41A Notice is a crucial safeguard in the criminal justice system, ensuring that individuals are informed of the reasons behind their summons to an inquiry or investigation. The legal precedents, especially the judgments in Amandeep Singh Johar (supra) and Satyender Kumar Antil (supra), have significantly improved the transparency and fairness of this process by mandating specific guidelines. However, as demonstrated in practical scenarios, such as my clients' case, there remains a gap in implementation, with police often neglecting to attach vital documents like the FIR or complaint.
The Tavaragi Rajashekhar Shiva Prasad (supra) judgment further strengthens the need for comprehensive and clear communication from the police, ensuring that individuals are fully aware of the allegations against them. It is imperative that law enforcement across India adhere to these guidelines, not only to uphold the rights of suspects but also to maintain the integrity and fairness of the investigative process. The protection of individual liberty is a cornerstone of our legal system, and the consistent application of these precedents will ensure that justice is both transparent and equitable.
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