WHETHER SUMMONS UNDER SECTION 41-A OF CRPC CAN BE QUASHED?

WHAT ARE THE CONSIDERATIONS FOR ISSUANCE OF SUMMONS UNDER 41A

OF CRPC?

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.”

*[Clause 41A Inserted by Code of Criminal Procedure Amendment act, 2008 and sub-clause
(1) further modified by Code of Criminal Procedure Amendment act, 2010]

**[sub-clause (4) substituted by Code of Criminal Procedure Amendment act, 2010]

It is most heartening to see that the Supreme Court most recently in a latest, landmark and
laudable judgment titled Roshni Biswas vs State of West Bengal in SLP (Cri) 4937/2020
delivered as recently as on October 28, 2020 has laid down in clear, categorical and
convincing terms that power under Section 41A CrPC cannot be used to intimidate, threaten
or harass. It has thus very rightly stayed a direction to a Delhi resident – Roshni Biswas
accused of making an objectionable facebook post against West Bengal Government to
appear before the Investigating Officer in West Bengal in response to a notice issued under
Section 41A of the Code of Criminal Procedure. All the courts must follow what has been
laid down in this leading case so explicitly, elegantly and effectively!
In a case, Calcutta High Court vide order dated June 23rd, 2017, held that police officer is not
empowered to issue notice under Section 41A for investigation under Section 202 of the
CrPC. The Hon’ble Court observed that Section 41A was incorporated in the CrPC as an
enabling power to interrogate an accused in respect of offences punishable with up to seven
years of imprisonment, in the event that the Police Officer is of the opinion that arrest of the
accused is not necessary in the facts of the case. Therefore, the power to issue notice under
Section 41A of CrPC is subject to the pre-condition that the Police Officer had the power to
arrest the accused under Section 41, but instead resorted to issuing notice of appearance
under Section 41A. The Court relied on the judgment of the Apex Court in Ramdev Food
Products Pvt. Ltd. vs. State of Gujarat [ (2015) 6 SCC 439 ] wherein it was held that the
Police Officer investigating under Section 202 is a delegatee of the Magistrate and does not
have power to arrest the accused.

Referring to the judgment of the Hon’ble Supreme Court of India in Chandra Deo Singh vs.
Prokash Chandra Bose @ Chabi Bose & Anr. [ AIR 1963 SC 1430 ] and National Bank of
Oman vs. Barakara Abdul Aziz & anr. [ (2013) 2 SCC 488 ], it was held that the enquiry
under Section 202 is not similar to a full-fledged investigation under Chapter XII of the Code
and is limited only to prima facie verify the truthfulness of the allegations in the complaint.
Such enquiry is to be made in absentia of the accused, without any requirement to delve into
the defence of the accused to determine whether sufficient grounds exist to proceed against
him/her. Only after ascertaining that such grounds exist, can the Magistrate issue process for
appearance of the accused in such an enquiry, or pose any question to the accused or his/her
witness.

Police does not get the automatic power to make arrest of the accused person in a case where
the maximum punishment can be up to 7 years. Above conditions have to be satisfied first
before an arrest could be made by the police officer in such a case without an order from the
Magistrate and without warrant. Some common examples of such offences, where the
maximum punishment is up to 7 years, are as under in which the power of arrest has been
curtailed as above:

 Section 498-A IPC (subjecting a married woman to cruelty).

 Section 363, 365, 369 of IPC (kidnapping / abduction).
 Section 354, 354-A, 354-B, 354-C, 354-D of IPC (outraging the modesty of a woman,
sexual assault, voyeurism, stalking, etc.).
  Section 406 or 407 of IPC (criminal breach of trust).
 Section 420 IPC (cheating).
 Section 466 IPC (forgery).
 Section 379, or 380 or 381 of IPC (relating to theft of different types).
 Section 384 or 387 IPC (extortion).
 Section 324 or 325 of IPC (causing hurt, etc.).
 Section 304-A IPC (causing death by rash or negligent act, such as by motor
accident).

Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273

“We are of the opinion that if the provisions of Section 41 CrPC which authorises the police
officer to arrest an accused without an order from a Magistrate and without a warrant are
scrupulously enforced, the wrong committed by the police officers intentionally or
unwittingly would be reversed and the number of cases which come to the Court for grant of
anticipatory bail will substantially reduce. We would like to emphasise that the practice of
mechanically reproducing in the case diary all or most of the reasons contained in Section 41
CrPC for effecting arrest be discouraged and discontinued.” (Emphasis supplied.)

In the case of Amandeep Singh Johar vs State of N.C.T. of Delhi and Anr., the Delhi High
Court has laid down a model format for issuance of Notice under section 41A of the Cr.P.C.,
containing a warning at the end of the model notice format which states that the failure to
comply with the terms of this Notice, can render a person liable for arrest under Section 41A
(3) and (4) of Cr. P.C.

the provision which was consolidated to restrict the power of arrest vested to Police under
41(1) has left it upon the Police himself to choose the relevance of the equivalent. Hence, if
the Police consider the issue to be good for arrest under Section 41(1), he can at present do as
such without any respect to the provisions of Section 41A.

Also, the utilization of subjective terms in the provision, for example, reasonable

complaint, credible information'', reasonable suspicion open space for maltreatment of such
powers and leaving tremendous degree for the Police to practice their prudence. Further, 41A
(3) furnishes the Police with an occasion to arrest an individual even after confirming with
the Notice if the Police believes that the arrest is vital. Additionally, the quick attentiveness to
choose consistency with the Notice is vested in the Police.
This provision especially builds the Police's ambit to arrest without a warrant – extending it
to violations that don't fall under the limits of Section 41(1). The current peculiarities have
not controlled themselves to administrative provisions, there have been various cases where
abuse of the force vested under Section 41A has been affirmed or demonstrated.

In Tanuja Roy v. State of Assam and Ors., an F.I.R. under Section 420 and 406 being held up
against the accused, three police officers from the Dispur Police Station powerfully took the
Petitioner to the police headquarters at 1:00 am regardless of opposition from the candidate.
She was confined discretionarily, for extended periods without being given any explanation,
after which Notice was served to her under Section 41A.

The game-plan received by the Police in the current case was uncalled-for. The Court
descended intensely upon the Police Officials while holding their activities to be in
contradiction of Section 46(4) of the Cr. P.C. Furthermore, not following what Section 41A
specifies to deter the force under Section 41A of Cr.P.C., the investigating officer may
control the F.I.R. Although the control of F.I.R. was not demonstrated in the moment case,
such action isn't altogether uncommon.