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14. The relevance of issuance of warrant under Section 70 of Cr.PC and provision under Section 41A would require examination in connection to the circumstances pleaded by ACB Police.

15. What Section 41A provides is that, on failure of compliance of terms of notice, it shall be lawful for the Police Officer to arrest the person for the offence mentioned in the notice, subject to such orders as may have been passed in this regard by the competent Court in this behalf. So, the Police is competent to arrest the person named in the notice, if the person fails to comply with the terms of the notice. The Police can, thus, proceed in terms of sub-sections (3) and (4) of Section 41A of CrPC.

15.1 So what gets invoked is provision under Section 41A(3) and (4) and not Section 73 of CrPC. The pre-requisite for arrest under Section 73 and under 41A of CrPC are different. In the case at hand, the prayer for warrant of arrest was made on the ground that the petitioner was evading arrest. While Section 41A contemplates notice for appearance before police officer. Moreso, Section 41A notice comes to be issued when arrest of the person is not required under the provisions of sub- section (1) of Section 41 of Cr.PC. Section 73 of Cr.P.C. lays that the person against whom warrant is issued, if arrested, he shall be made available with the warrant to the nearest police office who shall cause the arrestee to be taken to the Magistrate having jurisdiction in the case, unless security is taken under Section 71. The striking difference is, arrest under Section 41A is made for appearance before police officer, while under Section 73 is made for production of the person named in the warrant before the Court. When the noticee fails to R/SCR.A/6053/2021 JUDGMENT DATED: 31/08/2021 comply the terms of notice and arrest becomes inevitable, then procedure under Section 41B is to be followed, where accordingly memorandum of arrest shall be prepared by the Police Officer.

15.2 Now, it requires to be observed that Form No.2, in the Second Schedule of Cr.P.C is the standard form for warrant of arrest, while no such form is provided as yet, for the memorandum of Arrest to be adopted by the Police while adhering to the provision of Section 41B of Cr.P.C., even no standard template as such, is followed by the Police for the issuance of notice under Section 41A. Section 41 of Cr.P.C. lays down the standards for the investigator to satisfy himself/ herself on whether to arrest a suspect/ accused. Compliance of Section 41A notice and continuance of compliance with the notice may not subject the noticee to arrest, nevertheless, sub-section (3) of Section 41A of the Cr.P.C. provides that where an accused person complies with such notice under Section 41A(1) and attends before the Police Officer issuing such notice, such Police Officer can still arrest if he / she believes that arrest is necessary. The notice under Section 41A may not contain a warning to the noticee, which may state of liable arrest under Section 41A(3) and (4) of Cr.P.C. in failure to attend/ comply with the terms of the notice, nonetheless, such notice shall not deter the noticee to persue for anticipatory bail, since failure to comply the command under Section 41A of Cr.P.C, would necessarily result in punitive action, which would result in depriving the petitioner of his liberty.

17. In absence of any specific provision in Section 41A of Cr.P.C. for an order from the Court for issuance of warrant, and when Section 41A itself permits the Police Officer to make an arrest, no order under Section 73 of Cr.P.C. would be warranted and no order under Section 73 be made to aid the investigation, when there is no specific inbuilt safeguards, laying protection against self-incrimination.

18. In view of the above, where provision for arrest are made under Section 41A of Cr.P.C., order under Section 73 of Cr.P.C. for issuance of warrant is not justified, moreso when Hon'ble Apex Court has given specific direction in Arnesh Kumar's case (Supra). Resultantly, the order dated 02.04.2021, passed by the learned 5th Additional Sessions Judge, Ahmedabad (Rural) is quashed and set-aside. Rule is made absolute.