‘Bail is the rule, jail is an exception’ is a legal principle that was laid down by the Supreme Court in a landmark judgment of the State of Rajasthan vs. Balchand @ Baliya in 1978.
The Hon’ble Supreme Court opined in the case of Arnesh Kumar vs State Of Bihar & Anr on 2 July 2014 wherein an FIR was registered under Section 498-A IPC by the wife against the husband that automatic arrest will not be initiated in such cases unless there is an apprehension of commission of any illegal activity and where there is a provision of imprisonment upto 7 years in such cases the Police has to issue a notice under Section 41-A Cr. P.C is mandatory. With this step, several arbitrary arrests were put on hold. Taking a step further the Hon’ble Supreme Court in Landmark Judgement of Satender Kumar Antil vs. Central Bureau of Investigation on 11.07.2022 gave a crucial statement that failure of issuance of notice under Section 41-A Cr. P.C is an essential ground in favor of the accused to become eligible for bail.
Section 41 and Section 41-A of The Code Of Criminal Procedure, 1973
In the case of Satender Kumar Antil vs. Central Bureau of Investigation, the Hon’ble Supreme Court has mentioned in detail the procedure under which bail will be granted to an accused, its principles, and relevant guidelines. One of the most important facets of this judgment is the importance of Section 41 and 41-A of Cr.P.C. and for convenience, the same is mentioned below:
Section 41 in The Code Of Criminal Procedure, 1973
41. When police may arrest without a warrant.—
- Any police officer may without an order from a Magistrate and without a warrant, arrest any person—
- who commits, in the presence of a police officer, a cognizable offense;
- 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 offense punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:—
- the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offense;
- the police officer is satisfied that such arrest is necessary—
- to prevent such a person from committing any further offense; or
- for proper investigation of the offense; or
- to prevent such person from causing the evidence of the offense to disappear or tampering with such evidence in any manner; or
- to prevent such person from making any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
- as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
(ba) against whom credible information has been received that he has committed a cognizable offense punishable with imprisonment for a term that may extend to more than seven years whether with or without a fine or with a death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offense;
- who has been proclaimed as an offender either under this Code or by order of the State Government; or
- in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offense with reference to such thing; or
- who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
- who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
- who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offense, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
- who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or
- for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offense or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
- Subject to the provisions of section 42, no person concerned in a non-cognizable offense or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.
Section 41A in The Code Of Criminal Procedure, 1973
41A. Notice of appearance before a 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 offense, to appear before him or at such other place as may be specified in the notice. 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. Where such a person complies and continues to comply with the notice, he shall not be arrested in respect of the offense
- referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
- 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 offense mentioned in the notice.
The bare perusal of the above-mentioned Section 41-A succinctly states that if the offense committed has a provision of punishment in form of imprisonment up to 7 years that notice under Section 41-A is compulsory to be issued by the police before the arrest. Further the notice has to appear before the concerned authority and cooperate with the police authorities in the investigation.
Important Guidelines issued by the Hon’ble Supreme Court in the Landmark Judgement of Satender Kumar Antil vs. Central Bureau of Investigation on 11.07.2022
- The courts will have to satisfy themselves on the compliance of Sections 41 and 41A of the Code. Any non-compliance would entitle the accused to grant bail i.e. if the police authorities fail to issue a notice in an offense wherein the punishment is in form of imprisonment up to 7 years then the accused is eligible to get bail.
- The investigating agencies and their officers are duty-bound to comply with the mandate of Sections 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar vs State Of Bihar & Anr on 2 July 2014. Any default on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action. An aggrieved person can file a civil contempt petition against the investigating officer before the Hon’ble Court.
- Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.
- The State and Central Governments will have to comply with the directions issued by this Court from time to time with respect to the constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.
- The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release.
- An exercise will have to be done similarly to comply with the mandate of Section 436-A of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh v. Union of India, (2015) 13 SCC 605 that judicial officers shall identify the undertrial prisoners who have completed half period of the maximum period or maximum period of imprisonment provided for the said offense under the law and after complying with the procedure prescribed under Section 436-A pass an appropriate order in the jail itself for release of such undertrial prisoners on bail who fulfill the requirement of Section 436-A for their release immediately.
Several guidelines are issued by the Hon’ble Courts from time to time but two important guidelines which are the highlight of the above judgment are in context to notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing and failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.
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