Arrests without serving notice to the accused and after they appeal against rejection of anticipatory bail: SC deprecates practice, but declines relief

In a recent case, the Supreme Court’s two-judge bench asked the accused to approach the trial court for bail citing the failure of the police to issue notice before arresting them. 

THE Supreme Court recently deprecated the practice of police officers arresting the accused even after they approached the Supreme Court against rejection of the anticipatory bail application by the high court, and without serving a notice under Section 41(A) of the Code of Criminal Procedure(CrPC) as per the judgment of the Court in Arnesh Kumar vs. State of Bihar & Anr(2014).

A division bench of Justices Ajay Rastogi and Abhay S. Oka passed the order to this effect while dealing with an appeal filed by two accused whose anticipatory bail applications were rejected by the Bombay High Court in January 21 this year. The two accused are facing FIR under Sections 406(criminal breach of trust.), 420(cheating and dishonestly inducing delivery of property.), 465(forgery), 467(forgery of valuable security, will, etc.), 468(forgery for purpose of cheating.), 471(using as genuine a forged document or electronic record.) read with 34(common intention) of the Indian Penal Code(IPC).

Appearing for the accused, advocate Sunil Fernandes informed the Court that no notice under Section 41(A) Cr.P.C was ever served upon the accused.

Despite knowing that the accused had already filed an appeal in the Supreme Court challenging the High Court’s order, the Investigating Officer(IO) took the accused into custody on March 8.

The bench opined that since the accused are in custody, it may not be appropriate for it to pass further orders. However, it granted liberty to the accused to approach the trial court for regular bail. It added that the trial court is expected to take note of non-compliance of Section 41(A) Cr.P.C while deciding the regular bail application.

Section 41A requires a police officer to serve notice of appearance to a 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 office. As per the decision in Arnesh Kumar, the notice requirement has to be duly complied with where offence is 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.

In Arnesh Kumar, the Supreme Court had inter-alia directed that the notice of appearance in terms of section 41A CrPC should be served on the accused before making the arrest. The Court had issued the direction to prevent unnecessary arrests which, in the opinion of the Court, bring humiliation, curtail freedom and cast scars forever.

Last year, the Supreme Court released on bail stand-up comedian Munawar Faruqui in a case of hurting the religious sentiments of the majority community after his counsel told the Court that the procedure contained in Section 41 Cr.P.C. had also not been followed before arresting Faruqui. The Delhi High Court also sentenced a Delhi Police Sub-Inspector (SI) to undergo simple imprisonment for one day, after it found the police officer guilty of contempt of the court for breaching the Supreme Court’s guidelines on arrest in Arnesh Kumar vs. State of Bihar.

Earlier this year, a CJI led bench granted bail for four weeks to former AIADMK Minister K.T. Rajenthra Bhalaji who was arrested by the police one day before listing of an appeal filed by him in the Supreme Court. In that case also, the Court had relied upon the decision in the Arnesh Kumar case.

Click here to read the order.

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