Jerry Paul vs State of Karnataka. Criminal Petition 5963/2020 decided on 11 November 2020.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348806/1/CRLP5963-20-11-11-2020.pdf
Held: 9. On close reading of Section 41A of the Act, it indicates that where the arrest of a person is not required under the provisions of sub-section (1) of Section 41 of Cr.P.C., then the notice could be got issued to the person against whom a reasonable complaint has been made or credible information has been received or suspicion exists for having committed a cognizable offence to appear before him and it also makes it clear that it is the duty of the person to comply the terms of the notice and when the said person complies and continues to comply with notice, he shall not be arrested in respect of the offence referred to in the notice unless for the reasons to be recorded. The police officer is of the opinion that he ought to be arrested and in that regard he has to pass an order.
10. On going through the said provision and the records, admittedly a notice has been got issued under Section 41A of Cr.P.C. When once notice has been issued under Section 41A of Cr.P.C., that itself makes it clear that the arrest of the petitioner is not required. Be that as it may. It is the submission of the learned counsel for the petitioner that on 10.09.2020 at about 9.30 p.m. he has been taken to custody and was there till 14.09.2020. In that event, if police wanted to arrest him, definitely they could have done so. Not arresting and issuing notice under Section 41A of Cr.P.C. and sending him, goes to show that in terms of the provisions of Section 41A of Cr.P.C., they do not want to apprehend or arrest the petitioner.
11. …there is no apprehension of arrest of the petitioner-accused. Petition for anticipatory bail rejected.
Section 41A. (1) Notice of appearance before police officer.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 the competent Court in this behalf, arrest him for the offence mentioned in the notice.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Daksha Legal 