41A CrPC

 

Statute

1. 41 CrPC - Chapter V - When Police may arrest WITHOUT warrant
1. exigencies and circumstances under which a police office may arrest any one without warrant.
2. Any police officer may without an order from Magistrate and without a warrant, arrest any person
1. Who commits, in the presence of a police officer, a cognizable offence;
2. 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 punishable with imprisonment for a term which may be less than 7y or which may extend to 7y whether with or without fine, if the following conditions are satisfied
1. The police officer has reason to believe on the basis of such compliant, information or suspicion that such person has committed the said offence;
2. the police officer is satisfied that such arrest is necessary
1. to prevent such person from committing any further offence;
2. for proper investigation of the offence.
3. to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner;
4. to prevent such person from making any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the police office - Intimidation of witness
5. as unless such person is arrested, his presence in the court whenever required cannot be ensured, and the police officer SHALL record while making such arrest, his reason in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section record the reasons in writing for NOT making the arrest.
6. against whom credible information has been received that imprisonment for a term which may extend to more than 7y whether with or without fine or with death sentence and the police officer has reasons to believe on basis of that information that such person has committed the said offence.
3. who has been proclaimed as offender either under this code or by order of the State Government ; or
4. in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing;
5. who obstructs a police officer while in execution of his duty, or who has escaped or attempts to escape from lawful custody or
6. who is reasonable suspected of being a deserted from ANY of the armed forces of the union; or
7. who has concerned in, or against whom a reasonable complaint has been made, or credible information has been received or reasonable suspicion exist of his having been concerned in any act committed at any place out of India, which, if committed in India, would have been punishable as an offence, and for which he is under any law relating to extradition or otherwise, liable to be apprehended or detained in custody of India
8. who being a released convict, commits a breach of any rule made under sub-section (5) of Section 365
9. for whose arrest any requisition, whether written or oral has been received from another police officer, provided that the requisition specifies that person to be arrested and the offence or other cause for which the arrest is to be made and it appear therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
3. Subject to the provisions of Section 42, no person concerned in a non-congnizale offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exist of his having so concerned, shall be arrested EXCEPT under a warrant or order of a magistrate.
2. 41A CrPC - Notice of appearance before police officer
1. Police officer SHALL, in all cases where the arrest of person is NOT required under provision of 41(1) issue a notice directing the person against whom a reasonable complaint has been received or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or 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 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 office may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offenses mentioned in the notice.

Important Points

1. 41A CrPC - Investigation Officer issues Notice calling upon the petitioner to appear before him for Investigation
2. 41A CrPC - if police officer, is of the opinion that he ought to arrest, he has to record the reasons
3. 41A94) CrPC - failing to comply with the terms of notice, the Investigation officer MAY arrest him for the offense in notice
4. in New scheme of code - under BOTH circumstances i.e
1. When he decides to arrest or when he decides NOT to arrest
2. There has to be SATISFACTION of the police office  - Such satisfaction is Judicially reviewable
3. Record what reasons for arrest to believe he had for coming to a conclusion that 
1. person has Committed the offence
2. Further also required as under what exigencies, arrest is necessary 
1. Exigencies are provided in 41(1)(b)(ii)(a-e) CrPC
5. Intent behind the introduction of 41A CrPC - Statement of objects and reasons
1. Legislative intended to make it COMPULSORY for the police to record reasons for making an arrest
2. Not make arrest in respect of a cognizable offence with max imprisonment up to 7y
3. Compulsory for Police to issue a NOTICE in such cases Where arrest is NOT REQUIRED u/s 41(1)(b)
4. Unwillingness of a person who has not been arrested to identify himself and whom notice has been issue under 41A would be ground for arrest.
6. Notice of Appearance is in line with 
1. Right to Life and liberty of the citizens and 
2. seeks to bring down the number of arrest
3. Decongest the crowded Indian Jails
4. Innocent too can feel secure in cases they stand a chance to exposure to implication in fake case.
7. Under 170(1) of CrPC, on completion of investigation, if sufficient evidnece has been collected
1. the accused shall be forwarded in custody to the Magistrate concerned
2. Unless he has been released on bail
3. in  which even security may be taken for his appearance before Magistrate.
8. Apprehension of being arrested
1. When notice is issued under 41A(1) CrPC
2. After complying the terms of Noice the police officer forms an opinion that such person OUTHG to be arrested
3. such person fails to comply the terms of Notice or unwilling to identify himself.
4. In all these situations - Anticipatory Bail application is maintainable
1. Till the Time the person is NOT arrested
2. he is ENTITLED to maintain an application for grant of anticipatory Bail 
3. Subject to of course applicability of any other law to contrary. 
4. 41A DEFERS arrest until and Unless sufficient evidence is collected so as to produce or forward the accused to the custody of court.

Apprehensions

1. In the guise of 41A notice, likelihood of being arrested. 

Questions?

1. Can AB ( anticipatory bail ) applied u/s 438 CrPC when 41A Notice is issued?
1. Yes
2. Till the time person is NOT arrested, he is entitled to maintain application for grant of AB
3. Subject to other laws to contrary
4. 41A defers arrest until and unless sufficient evidence is collected so as produce or forward the accused to the custody of court.
5. Apprehension of arrest does not completely vanish away on issuance of notice  of appearance u/s 41A
6. Case link - Karnataka HC

Case Law

1. Gauri Shankar Roy & Others Vs The State of Bihar 2015 (3) PLJR 618
1. Para 22 - Elaborate discussion over Section 41, 41A
1. From perusal of the scheme of section 41 CrPC as it stands now after being substituted by code of criminal Procedure (Amendment) Act 2008 ( 5 of 2009 ), it transpires that the POWER OF ARREST available to the to a police officer in connection with commission of a cognizable offence may be categorized under 3 heads
1. Under the first Head, the Police officer has been conferred a power to arrest any person who has committed a cognizable offence in his presence.
1. This power is WITHOUT any qualification, exception and prerequisite
2. The ONLY  SINE QUA NON is commission of a cognizable offence in presence of a police officer
2. Second category of the case have been mentioned in 41(1)(b). Those cases are included which are punishable with imprisonment for a term which may be less than 7y or which may extend to seven year whether with or without fine and the police officer has received a reasonable complaint or a credible information regarding any one having committed such offence or a reasonable suspicion exists that any one has committed such a cognizable offence
1. Power to arrest for the offence under this category is, however NOT ABSOLUTE and UNQUALIFIED.
2. In order to exercise the power of arrest in these category of cases, the police officer MUST have a reason to believe on the basis of complaint, information or suspicion that any person has committed the said offence and the police officer should be satisfied that such arrest is necessary in terms of any or all of the grounds mentioned in under Section 41(a)(b)(ii)(a, b, c, d, e) of the Code.
2. Arnesh Kumar Vs State of Bihar AIR 2014 SC 2756
3. Jerry Paul Vs State of Karnataka 2021(1) Kar.L.J 550

Source