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TMI Blog2024 (10) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... working in the bank, was operating those accounts for committing the offence as alleged then. The investigation was done thoroughly. The other coaccused were arrested. This applicant s name came forward as a member of the gang member extracting the money in the State of Madhya Pradesh. The prosecution case is that the police went to his home many times, but he was not present. 4. Learned counsel for the applicant has vehemently argued that the offences for which the crime is registered are punishable to the extent of seven years. Hence, the police must comply with Section 41A of the Criminal Procedure Code and follow the ratio laid down by the Hon ble Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and Another, 2022 LiveLaw (SC) 577 and Arnesh Kumar Vs. State of Bihar and Another, (2014) 8 SCR 128 . He submits that there is absolutely no material against the applicant. He cannot be arrested for the crime only on the recovery under Section 27 of the Indian Evidence Act and the statement of the co-accused. He has taken the Court through the record. The charge sheet against the applicant is filed under Section 299 of the Criminal Procedure Code. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the investigation officer to collect incriminating material against him. If anticipatory bail is granted, the prosecution may not be able to convict him for want of cogent and reliable evidence. The offence is committed intellectually. The applicant would not support the prosecution unless he is arrested. The mandate of law laid down by the Hon ble Supreme Court in the case of Arnesh Kumar (supra) does not apply to this case, as has been argued by the learned counsel for the applicant. The accused of such a serious crime has no right to claim anticipatory bail and notice under Section 41A of the Criminal Procedure Code. He prayed to dismiss the application. 6. Perused the charge sheet placed on record and considered the arguments advanced by the learned counsel for the applicant. The first question is to be answered whetherr in each case a notice under Section 41A of the Criminal Procedure Code is mandatory. 7. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Ccourt or the police officer; or unless such accused person is arrested, his presence in the Ccourt whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. 7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest. 7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequence of non-compliance with Section 41 shall certainly inure to the benefit of the person suspected of the offense. Resultantly, while considering the application for enlargement on bail, courts will have to satisfy themselves on the due compliance of this provision. Any non-compliance would entitle the accused to a grant of bail. 13. 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. 14. There are two types of bail. Pre-arrest, and post-arrest bail. The law laid down by the Hon ble Supreme Court in the case of Satender Kumar (supra), as discussed above, is very specific that it is the duty of the police officer who has reason to believe that the cognizable offence is committed which is punishable for not less than seven years or may extend t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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