The High Court recently opined that the apprehension of arrest, does not completely vanish on the issuance of notice of appearance under Section 41A of the Code of Criminal Code.

The Court said that Section 41A of the Code of Criminal Procedure (CrPC) only defers arrest until and unless sufficient evidence is collected, so as to produce or forward the accused to the custody of the court.

Hence, maintainability of an anticipatory bail application under Section 438 CrPC cannot be challenged citing pendency of Section 41A notice.

"Section 41A of CrPC defers arrest until and unless sufficient evidence is collected, so as to produce or forward the accused to the custody of the court.The apprehension of arrest, thus, does not completely vanish away on the issuance o f notice of appearance under Section 41A of the CrPC, and hence, the question being raised in maintainability of an application under Section 438 CrPC, during the pendency of notice being issued under Section 41A Cr.P.C. or during the compliance of the terms of such notice, is completely unwarranted and is not in tune with the provisions of law," the Court said.

Therefore, under these circumstances, courts cannot evade an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, the High Court ruled.

"A person gets apprehension of being arrested in two situations:- firstly when a 'Notice' is issued to him under Section 41A (1) of the Code and secondly, after complying the terms of 'Notice' the police officer forms an opinion that such person ought to be arrested or in a situation, such person fails to comply the terms of 'Notice' or is unwilling to 'identify' himself. In all the above three situations such a person can maintain an anticipatory bail application as Section 41A of the Code does not stipulate the specific condition of notice of appearance."

The Forest Officials had registered a case on November 19, 2020 for offences punishable under Sections 80, 84, 86 and 87 of the Karnataka Forest Act of 1963, Rules 144 and 145 of Karnataka Forest Rules of 1969 and Section 379 of the Indian Penal Code against the unknown accused persons.

During the course of investigation, the Investigating Officer has issued notice dated January 13, under Section 41-A of CrPC calling upon the petitioner to appear before him for investigation.

The petitioner had not appeared before the Investigating Officer in response to the notice as he had an apprehension that he would be arrested. He, then filed an application seeking anticipatory bail and the same came to be rejected by Additional District and Sessions Judge, Bagalkot by an order dated April 29, 2021. Therefore, the petitioner moved the High Court, seeking anticipatory bail.

The counsel for petitioner, by referring to clauses of Section 41(A) contended that the police officer, if he is of the opinion that he ought to be arrested, has to record the reasons.

Prosecution, on the other hand, contended that as the arrest of the petitioner is not required under the provisions of 41(1), the Investigating Officer has issued notice under Section 41-A of CrPC, directing the petitioner to appear before him for inquiry. Therefore, there is no apprehension of arrest.

The prosecution also questioned the maintainability of the plea seeking anticipatory bail.

The Court proceeded to exmaine the intent and reason behind the Section 41A of the CrPC. The insertion of Section 41A of the CrPC makes it clear that the legislature intended to make it compulsory for the police to record reasons for making an arrest, as well as for not making an arrest in respect of a cognizable offence for which the maximum punishment is upto seven years, said the Court.

"Hence Section 41 was amended and proviso to Section 41 was inserted whereas Section 41A of Cr.P.C. was inserted to make it compulsory for the police to issue a notice in all such cases where arrest is not required to be made under clause (b) of sub-section (1) of the amended Section 41."

It added that the insertion of Section 41A CrPC, pertaining to issuance of 'Notice of Appearance', is in line with the Right of Life and Liberty of the citizens and seeks to help to bring down the number of arrests, which in turn would decongest the crowded Indian Jails".

Simultaneously, the Court said that the the provision was inserted so that the innocents too, can feel secure in case they stand a chance of exposure to implication in fake cases.

The amendment provides that the police officer shall, instead of arresting the person concerned, issue a notice of appearance, asking him to cooperate with the police officer in the probe. No arrest will be made in a non-cognizable offence except under a warrant or order of Magistrate, added the High Court Judge, in its order.

"Section 41A of the Code operates in a situation where there is no arrest and prescribes the course of option to be adopted by a police officer in case he decides not to arrest any person. Till the time any person is not arrested, he is entitled to maintain an application for grant of anticipatory bail, subject to, of course, the applicability of any other law to the contrary," the Court opined.

Adding on to this aspect, the Court observed that the apprehension of arrest always does exist even after issuance of notice of appearance under Section 41A CrPC and under such circumstances, the Courts cannot evade to entertain an application under Section 438 CrPC.

Therefore, there is an apprehension of arrest of the petitioner in the instant matter since the Investigating Officer may collect evidence and record reasons against the petitioner and may arrest him, said the Court.

With these observations, the Court proceeded to allow the petition filed and granted anticipatory bail on execution of a personal bond for a sum of Rs. 1,00,000, with one surety for the same sum,

It also directed that the petitioner shall voluntarily appear before the Investigating Officer within fifteen days from today. The petitioner shall cooperate with the investigation and make himself available for interrogation whenever required, the Court directed.