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2024 DIGILAW 1057 (KER)

Ashwin. C, S/o. Gireeshan. C. v. State Of Kerala

2024-08-22

A.BADHARUDEEN

body2024
ORDER : This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘the BNSS’ hereinafter), by the petitioner, who is the sole accused in Crime No.171/2021 of Ambalavayal police station, Wayanad, now pending as S.C.No.419/2021 on the files of the Fast Track Special Court, Sulthan Bathery and the prayers sought for as under: i) This Hon’ble Court may be pleased to quash Annexure A7 notice issued by the 2nd respondent dated 29.06.2024. ii) Any other appropriate order or direction as the Hon’ble Court may be pleased to grant in the circumstances of the case. iii) This Hon’ble Court may be pleased to dispense with translation of the documents produced in vernacular language. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the relevant documents. 3. The petitioner is aggrieved by issuance of Annexure A7 notice, dated 29.6.2024, whereby, he was directed to appear before the Station House Officer, Ambalavayal Police Station, at 10.a.m. on 4.7.2024, in connection with Crime No.171/2021, by issuing notice under Section 41A of the Code of Criminal Procedure (for short, ‘the Cr.P.C.’ hereinafter). 4. According to the learned counsel for the petitioner, earlier, the petitioner obtained bail in this crime and was released on bond and issuance of notice under Section 41A of the Cr.P.C. after arrest and release the petitioner on bail, is not legally permissible. 5. The learned Public Prosecutor, when asked to justify issuance of notice under Section 41A of the Cr.P.C. in this context, he also would submit that, Section 41A of the Cr.P.C. would apply in the contingencies dealt under Section 41A and not after arrest and release of the petitioner on bail. 6. The question arises for consideration is, whether Annexure A7 notice issued under Section 41A of the Cr.P.C. in a crime after arrest and release of an accused, is legally sustainable? 7. In this connection, it is necessary to extract Section 41A of the Cr.P.C. and the same reads as under: 41A. 6. The question arises for consideration is, whether Annexure A7 notice issued under Section 41A of the Cr.P.C. in a crime after arrest and release of an accused, is legally sustainable? 7. In this connection, it is necessary to extract Section 41A of the Cr.P.C. and the same reads as under: 41A. Notice of appearance before police officer.— (1) 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 offence, to appear before him or at such other place as may be specified in the notice. (2) 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. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. (4) 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 in this behalf, arrest him for the offence mentioned in the notice. 8. In this context, it is relevant to extract Sections 35(3), (4), (5), (6) and (7) of the BNSS. The same reads as under: 35(1) xxxx 35(2) xxxx (3) The police officer shall, in all cases where the arrest of a person is not required under subsection (1) 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 offence, to appear before him or at such other place as may be specified in the notice. (4) 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. (4) 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. (5) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. (6) 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 in this behalf, arrest him for the offence mentioned in the notice. (7) No arrest shall be made without prior permission of the officer not below the rank of Deputy Superintendent of Police in case of an offence which is punishable for less than three years and such person is infirm or is above sixty years of age. 9. Section 35(3) of the BNSS is the pari materia provision corresponding to Section 41A of the Cr.P.C. Similarly, Section 35(4) is the corresponding provision to Section 41A(2) of the Cr.P.C. Section 35(5) of the BNSS is corresponding to Section 41A(4) of the Cr.P.C. as extracted above, and the same has some changes in phraseology. The provision analogous to Section 41A(4) of the Cr.P.C. is Section 35(6) of the BNSS. Section 35(7) of the BNSS is a new provision that would apply to person with infirmity or is above sixty years of age and arrest of such a person for an offence which is punishable with imprisonment for less than three years shall not be made without prior permission of an officer not below the rank of Deputy Superintendent of Police. Thus, Section 35(7) of the BNSS is a beneficial provision as far as persons above sixty years or persons with infirmity are concerned, and the same is a good initiative by the legislature. 10. Thus, Section 35(7) of the BNSS is a beneficial provision as far as persons above sixty years or persons with infirmity are concerned, and the same is a good initiative by the legislature. 10. On a bare reading of the provisions, the same make it clear that, issuance of notice is mandatory under Section 41A of the Cr.P.C. or under Section 35(3) of the BNSS, as the case may be, when 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 offence, where the arrest of a person is not required. Thus, the law emerges is that, issuance of notice under Section 41A of the Cr.P.C. or under Section 35(3) of the BNSS become mandatory on three contingencies, viz., (1) when a person against whom a reasonable complaint has been made, or (2) credible information has been received, or (3) a reasonable suspicion exists that he has committed a cognizable offence, where the arrest of a person is not required. Thus, it is clear that, Section 41A of the Cr.P.C. or Section 35(3) of the BNSS has no application excluding the contingencies extracted hereinabove as (1) to (3). It is true that the Investigating Officer has an indefeasible right to further investigate a crime in tune with Section 173(8) of the Cr.P.C., after seeking a formal permission of the court concerned, so as to keep a comity in between the court and the Investigating Agency. As regards Section 193(9) of the BNSS, the said power is retained with a proviso making statutory recognition for getting permission of the court and also fixing time limit for further investigation. Proviso to Section 193(9) of the BNSS states that, further investigation during the trial may be conducted with the permission of the Court trying the case and the same shall be completed within a period of ninety days which may be extended with the permission of the Court. No doubt, Investigating Officer has the right to question the accused as part of the further investigation as well. No doubt, Investigating Officer has the right to question the accused as part of the further investigation as well. In order to ensure such questioning, the Investigating Officer can issue a notice in tune with the conditions in the bail order, if there is a condition therein that the accused shall appear before the Investigating Officer or else, the Investigating Officer shall seek permission of the court concerned for such questioning, by moving an application in this regard. Notice provided under Section 41A of the Cr.P.C. as well as Section 35(3) of the BNSS, not intended to secure the presence of the accused during further investigation. 11. In the present case, the petitioner was arrested and released on bail. Now, the case has been pending as S.C.No.419/2021 on the files of the Fast Track Special Court, Sulthan Bathery. It is discernible from Annexure A3 order (order in Crl.M.P.No.179/2023, dated 26.08.2023), on an earlier occasion when the Station House Officer wanted to question the petitioner, he sought permission of the Special Court and the Special Court granted the same in order to trace out the pattern of the mobile phone of the petitioner in the presence of the CMO of the Court. 12. On evaluation of the facts of this case, issuance of notice under Section 41A of the Cr.P.C. is found to be unwanted and therefore, the same stands quashed, with direction to the Investigating Officer to issue notice in tune with the bail conditions, if there is a condition to appear before the Investigating Officer in the order granting bail or to move an application before the Special Court, if questioning or anything, as part of further investigation is required at the option of the accused and seek permission to do the said exercise. This Criminal Miscellaneous Case stands disposed of as above.