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Showing contexts for: 41a crpc in Mahesh Hundraj Tharwani vs State Of Maharashtra And Anr on 31 January, 2025Matching Fragments
21. Learned counsel Shri Gaware-Patil referred to Sections 50 and 50-A of Cr.P.C. and supported the submissions in favour of the accused.
22. Learned Senior Counsel Shri Amit Desai concluded the debate on behalf of the Petitioners by making his own submissions. He submitted that all these judgments passed by the Hon'ble Supreme Court deal with the facet of fundamental rights under Articles 21 & 22 of Constitution of India. Therefore, if there is a breach of these rights by the investigating authorities, the question of prejudice caused to the accused does not arise. All these violations in respect of the fundamental rights, must uniformly and without exception lead to release of the accused. The only concession in these cases is that compliance of Section 50 of Cr.P.C. by giving grounds of arrest in writing is made mandatory by Pankaj Bansal's case from the date of that judgment. He submitted that in WP-ST-24338-24-GROUP.odt a given case the victim may claim prejudice caused by release of the accused but the victim's right is limited only for fair investigation. The victim cannot have any say in the arrest and custody of the accused in any case. It is purely the discretion of the investigating officer. He submitted that, in case the accused is released on these grounds; suitable conditions can be imposed on the accused so that the victims are sufficiently protected and the accused does not commit any crime in future. He submitted that after the accused is released for non-compliance of Section 50 of Cr.P.C. he cannot be re-arrested as it would be violation of Article 21 of the Constitution of India. That would open flood-gates for litigation in cases where the accused are already released for such non-compliance of Section 50 of Cr.P.C.. Learned Senior Counsel made submissions regarding provisions of Sections 41 & 41A of Cr.P.C.. According to him, for the offence punishable upto seven years the notice under Section 41A of Cr.P.C. is mandatory before arrest. He referred to the circulars issued by the High Court and Director General of Police, Maharashtra State. One of them was a notification dated 21.10.2023 issued by the Registrar General of this Court bearing WP-ST-24338-24-GROUP.odt No.Rule/Misc - 01/2023. The notification dated 21.10.2023 reads thus :
32. Learned Advocate General advanced his separate arguments on Sections 41 & 41A of Cr.P.C.. He submitted that the judgments of the Hon'ble Supreme Court in Arnesh Kumar and Satendra Kumar Antil clearly lay down that the provisions of Sections 41 & 41A of Cr.P.C. will have to be followed. He submitted that Section 41 provides a check-list which the investigating officer has to prepare in writing before arresting a person who is accused to have committed an offence punishable upto seven years and there is a proviso to Section 41(1)(b)(ii) which mentions that a police officer in all cases where the arrest of a person is not required under the provisions of this sub-section, must record the reasons in writing for not making the arrest. Section 41A refers to the provisions of sub-section (1) of Section 41 of Cr.P.C. and mentions that in all cases where the arrest of a person is not required under Section 41(1), a notice is required to be issued. He submitted that therefore Section 41A covers the offences not only where the punishment is more than seven years but also the offences where the punishment is upto seven years and in such cases only when the WP-ST-24338-24-GROUP.odt arrest is not necessary, the police officer is duty bound to issue a notice. But when a police officer wants to arrest a person who has allegedly committed the offence punishable upto seven years he has to prepare a check-list provided in Section 41(1)(b) of Cr.P.C. and that check-list will have to be considered by the Magistrate granting remand. Apart from that, there is no embargo for the investigating agency to arrest any person if in its opinion the arrest is necessary.
REQUIREMENT OF ISSUANCE OF NOTICE UNDER SECTION 41A Cr.P.C.:
62. The next question which requires consideration is regarding necessity to issue a notice under Section 41A of Cr.P.C. before effecting arrest. The arguments are advanced that the notice under Section 41A is necessary before effecting arrest in all cases and definitely for the cases involving offences punishable upto seven years under Section 41A of Cr.P.C..
63. As mentioned earlier, the Division Bench in the case of Abhijit Arjun Padale has taken a view in the case involving offence under Section 384 and 506 of IPC, where the punishment is less WP-ST-24338-24-GROUP.odt than seven years it was necessary to issue a notice under Section 41A of Cr.P.C. and arrest effected without issuance of such notice was held to be illegal. A reference was made to the judgment of Arnesh Kumar by the Division Bench while deciding case of Abhijit Padale. In this context, it is necessary to reproduce Paragraphs-11 and 12 of Arnesh Kumar, which read as under :
Therefore in our opinion it is not the requirement of law where the police officers want to arrest a person, they have to give notice under Section 41A of Cr.P.C. to the accused. In fact when the arrest of a person is not required, only then the notice is required to WP-ST-24338-24-GROUP.odt be issued. If it is to be held that in all cases before arrest and in particular in the cases involving offences upto seven years, the notice is required to be issued under Section 41A of Cr.P.C. then it could be argued that once notice is issued it would mean that the police officers did not want to arrest the accused which would run contrary to the express provision of Section 41A of Cr.P.C..