Indian Kanoon - Search engine for Indian Law

9. It is the contention of the learned senior counsel that when the two sets of barricades were jumped over by the protesters, cognizable offences under which the FIR has been registered could be said to have been committed in the presence of the Police Officials and yet, no arrests were made. Therefore, the provisions of Section 41A Cr.P.C. kicked in and in terms of the judgment of Arnesh Kumar (supra), the Police had to issue notice before seeking to arrest the applicants. It was submitted that the applicants were arrested later in the night between 9.00 and 9.30 P.M. from their houses. Thus, the statutory requirements have been given a go by. The learned senior counsel further pointed out that several others have been issued such notices under Section 41A Cr.P.C. and they have joined investigations. Therefore, there was no reason why the applicants should continue to remain in judicial custody.

16. Mr. Pavan Narang, learned counsel for the applicant in Bail Application No.1149/2022 also underlined the arguments that Section 41(1)(b) Cr.P.C. was not applicable to the facts of the present case. As the offence was allegedly committed in the presence of the police, when they did not apprehend the protesters at the spot as required under Section 41(1)(a) Cr.P.C., there was no choice left but to arrest only after notice under Section 41A Cr.P.C. had been issued. Non-compliance, therefore, entitled the applicant to bail.

22. I have heard the submissions of all the learned senior counsel and counsel for the applicants as also the submissions of the learned Standing Counsel (Criminal) for the respondent/State and have considered the material on record and the case law cited.

23. It is clear that the arguments have been centralized on the non- compliance of Section 41(1)(a) of the Cr.P.C. A learned Single Judge of this Court has underlined the need for strict adherence to the directions in Arnesh Kumar (supra) and the issuance of notice under Section 41A Cr.P.C. and has held that not only should the notice be issued, but the notice must also be in the format prescribed and be a mere intimation. In Arnesh Kumar (supra), the following directions had been issued:

Clearly, therefore, Section 41(1)(a) Cr.P.C. has not been applied and unless the conditions prescribed in Section 41(1)(b) Cr.P.C. were stated to exist, the police before arresting the applicants, had no choice but to have issued notices under Section 41A Cr.P.C.