What is 41A CRPC Notice of appearance before police

How Section 41A CrPC Works?

Section 41A CrPC was inserted in the Criminal Procedure Code in a bid to reform the law as well as to prevent unnecessary arrests. Under the Indian Constitution, the Accused has many rights against the state. The most important is the Right to remain silent and presumed innocent until proven otherwise. From this emanates Section 41A CrPC Notice, as unnecessary arrest leads to trauma, and the scars remain even if the person is eventually acquitted.

Section 41A Notice provides information on when a police officer can arrest a person without a warrant. It states that any police officer may, without an order from a Magistrate and a warrant, arrest any person

• who commits, in the presence of a police officer, a cognizable offence;
• 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 seven years or which may extend to seven years whether with or without OK if the specific conditions are satisfied. The police officer shall also record the reasons for such arrest.

It’s crucial to note that there may be instances where a person is falsely implicated in a cognizable offence for the purpose of harassment. Recognizing this potential misuse, the legislature in 2010 introduced Section 41A to the CrPC, serving as a protective shield for the interests of the accused.

The same states as under:

41-A. 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 CrPC, 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 that person’s duty to comply with the terms of the notice.
3. Where such person complies and continues to adhere to the notice, he shall not be arrested for the offence referred to in the notice unless, for reasons to be recorded, the police officer believes he ought to be stopped.
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 on this behalf, arrest him for the offence mentioned in the notice.

A person’s liberty is of prime importance and the same cannot be curtailed without the due process of law. However, situations may arise that necessitate curbing of such individual rights to protect the interests of the larger public. A person may be arrested for acting contrary to laws depending on whether the offence committed by him/her is a cognizable or a non-cognizable offence. Cognizable offences are those for which a police officer can directly arrest an individual without the affirmation of the court, i.e. no warrant is required from the court to arrest such a person. On the other hand, non-cognizable offences are those for which a police officer first needs to obtain a warrant of arrest from the court to arrest an individual accused of committing some offence.

It is clear from the above section that where the person, to whom a notice of appearance has been issued under Section 41A of the Cr.P.C., complies with and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice. Section 41A of the Cr.P.C. is a provision that requires the police to issue a notification to the accused person asking him to appear before the police officer. However, for reasons to be recorded, if the police officer is of the opinion that he ought to be arrested, such person may still be arrested. Simply speaking, such person would not be arrested if he continues to remain present before the investigating officer as required under the notice and comply with his conditions. It is only in exceptional circumstances that such person may still be arrested if the police officer records the reasons in writing for his opinion for the necessity of arresting him and the reasons for such arrest would be as mentioned in Section 41 CrPC., which are-

1. to prevent such person from committing any further offence; or
2. for proper investigation of the offence; or
3. to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
4. to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or the police officer; or
5. as unless such a person is arrested, his presence in the Court whenever required cannot be ensured,

The Supreme Court, in the landmark judgment of Arnesh Kumar v/s State Of Bihar & Another, (2014) 8 SCC 273, has laid down that no arrest should be made only because the offence is non-bailable and cognizable and, therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing; the justification for exercising it is quite another. Apart from the power to control, the police officers must be able to justify the reasons. No arrest can be made routinely on a mere allegation of the commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without reasonable satisfaction reached after some investigation as to the genuineness of the allegation.

Recently, the Madras High Court, in a bail application, has observed that “The Police must be made to understand that all Criminal Cases need not necessarily involve the arrest of accused persons during the investigation and an effective investigation can be done even otherwise. A change in attitude will bring down unnecessary filing of Anticipatory Bail Petitions. This procedure [under Section 41A CrPC] can be effectively implemented in matrimonial disputes, commercial disputes, property disputes and other minor offences, to name a few. Ultimately, the aim is to stop unnecessary, hasty, or illegal arrests. These arrests normally occur on a Friday or a day before holidays to ensure that the accused does not come out on bail immediately. The popular Euphemism used is “Friday arrests”. The Tamil Nadu Police must pull their socks up and show more quality and maturity in investigation techniques.”

I would recommend all men accused of IPC 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) to utilize this information to avoid any harassment by police. Once the criminality in matrimonial litigation is removed, managing civil cases is much simpler and more accessible.