2024 (10) TMI 612 - HC - Indian Laws

Seeking grant of pre-arrest bail - extracting the money from the truck owners or the drivers, under threat, impersonating themselves as GST officers - whether in each case a notice under Section 41A of the Criminal Procedure Code is mandatory? - HELD THAT - Section 41 of the Criminal Procedure Code provides for time and situation when the police may arrest the accused without a warrant. The first condition is that the offence should be cognizable. Second would be the term of the conviction with imprisonment for a term which may be less than seven years or which may extend to seven years or with fine. Further, for such an arrest, the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence. In the concluding part of Satender Kumar 2022 (8) TMI 152 - SUPREME COURT , the Hon ble Supreme Court issued certain directions. It has been reiterated that the investigating agencies and officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and directions issued by this Court in Arnesh Kumar 2014 (7) TMI 1143 - SUPREME COURT . Any dereliction on their part has to be brought to the notice of the higher authorities by the Court, followed by appropriate action. Reading Section 41A read with Section 41 of the Criminal Procedure Code and the law laid down by the Hon ble Supreme Court in the above cases, it is clear that for every such offence mentioned in Section 41 of the Criminal Procedure Code, a notice of appearance as provided under Section 41A of the Criminal Procedure Code is not essential, unless the investigation officer is satisfied that the arrest of accused is not required as contemplated under Section 41 of the Criminal Procedure Code. The charge sheet is filed against the applicant, showing him absconding. The police have not yet disclosed what is the direct material against the applicant, but other concerned material has shown the nexus of the applicant with the crime. The offence is apparently serious. The offence was committed with the help of police personnel and by using government police vehicles. It is a matter of safety of the businessman and the common man. The Court is agreeable with the arguments of the learned APP for the State that there are reasons to believe that the arrest of the applicant is required. Hence, notice under Section 41A may be dispensed with in this case. It seems that the learned counsel for the applicant has tried to take benefit of the ratio laid down by the Hon ble Supreme Court in the case of Satender Kumar and Arnesh Kumar, which is not applicable to the case at hand. Considering the nature of the offence, and how it has been committed is discovered, the Court is of the view that this is not a fit case to exercise discretion under Section 438 of the Criminal Procedure Code. The application stands dismissed.

Summary

Issues Involved:

1. Whether the applicant is entitled to pre-arrest bail under Section 438 of the Criminal Procedure Code.
2. Applicability of Section 41A of the Criminal Procedure Code in the context of the case.
3. Evaluation of the necessity of arrest for proper investigation and prevention of evidence tampering.
4. Consideration of the legal precedents set by the Hon'ble Supreme Court in Satender Kumar Antil and Arnesh Kumar cases.

Issue-wise Detailed Analysis:

1. Entitlement to Pre-arrest Bail:

The applicant sought pre-arrest bail in connection with a crime involving impersonation and extortion, punishable under various sections of the Indian Penal Code. The court examined whether the applicant could be granted anticipatory bail under Section 438 of the Criminal Procedure Code. The applicant's counsel argued that there was no material evidence against the applicant and that he was willing to cooperate with the investigation. However, the prosecution contended that the applicant's arrest was essential due to substantial evidence of his involvement in the crime, including numerous inter-se calls with other accused. The court concluded that given the serious nature of the offense and the applicant's alleged involvement, this was not a fit case to exercise discretion for granting anticipatory bail.

2. Applicability of Section 41A of the Criminal Procedure Code:

The court addressed whether a notice under Section 41A of the Criminal Procedure Code was mandatory in this case. Section 41A mandates that a notice of appearance be issued when arrest is not required under Section 41(1). The applicant's counsel argued for compliance with this provision, citing Supreme Court precedents. However, the prosecution argued that the applicant's arrest was necessary for the investigation and that the guidelines in the cited cases did not apply here. The court held that a notice under Section 41A was not essential in this case, as the investigation officer deemed the arrest necessary under Section 41.

3. Necessity of Arrest for Investigation and Evidence Preservation:

The court evaluated the necessity of arresting the applicant to ensure proper investigation and prevent evidence tampering. The prosecution highlighted the need for the applicant's custodial interrogation to gather incriminating material and prevent the destruction or tampering of evidence. The applicant was reportedly absconding, further justifying the need for arrest. The court agreed with the prosecution, emphasizing the importance of collecting evidence and the potential risk of the applicant hindering the investigation if not arrested.

4. Legal Precedents and Their Applicability:

The court considered the precedents set by the Hon'ble Supreme Court in Satender Kumar Antil and Arnesh Kumar cases, which outline conditions for arrest and the issuance of notices under Section 41A. The applicant's counsel argued that these precedents supported the applicant's case for anticipatory bail. However, the court found that the nature and seriousness of the offense, along with the applicant's alleged involvement, distinguished this case from those precedents. The court concluded that the guidelines from the cited cases were not applicable, and the applicant's arrest was justified under the circumstances.

In conclusion, the court dismissed the application for anticipatory bail, emphasizing the necessity of the applicant's arrest for effective investigation and the serious nature of the alleged crime.