41a CrPC procedure for appearance before police officers : Delhi HC 2018

*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7608/2017
% Date of decision : 7
th February, 2018
AMANDEEP SINGH JOHAR ….. Petitioner
Through : Mr. Nikhil Borwankar,
Mr. Pankaj Sharma,
Mr. Roopenshu Pratap Singh,
Mr. David Vijay Thomas, Mr.
Vikram Singh Kushwaha and
Mr. Kaushik Barua, Advs.
versus
STATE OF NCT OF DELHI & ANR ….. Respondents
Through : Mr. Sanjay Jain, ASG with Mr.
Satyakam, ASC-GNCTD and
Ms. Sneh Suman, Mr. Vidur
Mohan and Mr. Sarfaraz
Ahmad, Advs.
CORAM:
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (ORAL)
GITA MITTAL, ACTING CHIEF JUSTICE
1. This writ petition has been filed under Articles 226 and 227 of
the Constitution of India by the petitioner who claims that he,
alongwith his parents and relatives, has faced proceedings before the
W.P.(C)No.7608/2017 Page 2 of 15
Crime Against Women Cell, Nanak Pura, New Delhi at the instance of
his wife. It is complained that despite regularly attending all sessions
fixed at this Cell and extending full cooperation, the proceedings
culminated in registration of a FIR being FIR No. 313/16 by the Police
Station Patel Nagar, New Delhi under Section 498A/406 of the Indian
Penal Code.
2. It is stated in the writ petition that the petitioner was regularly
summoned to the Police Station to join investigations, without a single
written notice under Section 41A of the CrPC being served upon him.
As such, the petitioner complains that he joined investigation on eight
dates which have been detailed in para 9 of the writ petition.
3. Grievance stands made that several documents relied upon by
the petitioner in his defence which were tendered by him during the
proceedings before the Crime Against Women Cell during the
investigation. No receipt thereof was given to the petitioner and these
documents having a critical bearing on the case were not made part of
the record by the police.
In those above circumstances, the petitioner had no material or
evidence to support his contention that he had regularly joined
investigation and also that he had tendered several documents which
manifested that he was innocent in the case.
4. Amongst the documents relied upon by the petitioner as having
been handed over to the police are details of the recovery memo; list
W.P.(C)No.7608/2017 Page 3 of 15
of stridhan articles, text messages exchanged between the petitioner
and her investigating officer.
5. Reference is made to Circular No. 08/2011 dated 10th February,
2011 issued by the Delhi Police. It is complained by the petitioner that
not only are the directions contained in this and other Circulars not
being properly worked by local police stations and officers but also
that the directions contained in the Circulars by themselves are wholly
insufficient to ensure protection of the rights of the persons who are
called for enquiries or are the subject matter of criminal investigations.
6. It has been submitted by Mr. Nikhil Borwankar, learned counsel
who appears for the petitioner that the petitioner’s experience at the
Crime Against Women Cell and the police station highlight the fact
that this was a practice followed in all criminal enquiries and
investigations undertaken by the Delhi Police necessitating the filing
of the present writ petition in Public Interest making a prayer to this
court for inter alia directions to the Delhi Police to modify its Circular
No.08/2011 dated 10th February, 2011 and to frame fair and balanced
rules with regard to issuance and service of notices under Section 41A
and Section 160 of the CrPC.
7. The petitioner consequently took a pro-active stand and initiated
queries under the Right to Information Act resulting in his obtaining
copies of various circulars of the Delhi Police governing the working
of Section 41 of the CrPC. In this regard, the petitioner has drawn our
attention to above Circular No.8/2011 referred which is concerned
with “provisions of arrest as per the CrPC (Amendment) Act, 2008”
W.P.(C)No.7608/2017 Page 4 of 15
(page 400) and the Circular no. 30A of 2014 dated 17th November,
2014 (page 404) which is concerned with “Directions Relating to
Arrest in Pending Investigation Cases.”
8. Before examining the grievance made by the petitioner, it
would be useful to set out the statutory provisions which relate to the
requirement of appearance before police officer of any person, for
expediency, we extract hereunder the provisions of Sections 41A, 91,
160 and 175 of CrPC :
“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
W.P.(C)No.7608/2017 Page 5 of 15
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.”
91. Summons to produce document or other
thing.
(1) Whenever any Court or any officer in charge
of a police station considers that the production
of any document or other thing is necessary or
desirable for the purposes of any investigation,
inquiry, trial or other proceeding under this
Code by or before such Court or officer, such
Court may issue a summons, or such officer a
written order, to the person in whose possession
or power such document or thing is believed to
be, requiring him to attend and produce it, or to
produce it, at the time and place stated in the
summons or order.
(2) Any person required under this section
merely to produce a document or other thing
shall be deemed to have complied with the
requisition if he causes such document or thing
to be produced instead of attending personally to
produce the same.
(3) Nothing in this section shall be deemed-
(a) to affect sections 123 and 124 of the Indian
Evidence Act, 1872 (1 of 1872 ), or the Bankers’
Books Evidence Act, 1891 (13 of 1891 ) or
(b) to apply to a letter, postcard, telegram or
other document or any parcel or thing in the
custody of the postal or telegraph authority.
xxxx
160. Police officer’ s power to require
attendance of witnesses.
(1) Any police officer, making an investigation
under this Chapter may, by order in writing,
W.P.(C)No.7608/2017 Page 6 of 15
require the attendance before himself of any
person being within the limits of his own or any
adjoining station who, from the information
given or otherwise, appears to be acquainted
with the facts and circumstances of the case; and
such person shall attend as so required:
Provided that no male person under the age of
fifteen years or woman shall be required to
attend at any place other than the place in which
such male person or woman resides.
(2) The State Government may, by rules made in
this behalf, provide for the payment by the police
officer of the reasonable expenses of every
person, attending under sub- section (1) at any
place other than his residence.
xxx xxx xxx
175. Power to summon persons.
(1) A police officer proceeding under section
174, may, by order in writing, summon two or
more persons as aforesaid for the purpose of the
said investigation, and any other person who
appears to be acquainted with the facts of the
case and every person so summoned shall be
bound to attend and to answer truly all questions
other than questions the answers to which would
have a tendency to expose him to a criminal
charge or to a penalty or forfeiture.
(2) If the facts do not disclose a cognizable
offence to which section 170 applies, such
persons shall not be required by the police
officer to attend a Magistrate’ s Court.”
(Emphasis supplied)
9. Pursuant to the notices issued by this court, the respondents
have entered appearance. Appearing for the Delhi Police, Mr.
Satyakam, learned ASC for the Govt. of NCT of Delhi has staunchly
W.P.(C)No.7608/2017 Page 7 of 15
disputed the factual narration. This court is not examining either the
grievances of the petitioner regarding the treatment by the Delhi
Police or his defence on the merits in respect of the complaints against
him. We make it clear that we are not expressing any opinion on the
merits of the factual narration made by the petitioner, either with
regard to the complaints made against him by his wife and in-laws or
his complaints and allegations against the Delhi Police.
10. We may note that the writ petitioner has also categorically
stated that this writ petition is being filed purely in public interest.
11. Be that as it may, the issues raised by the petitioner are of
seminal importance and impact the working of the Delhi Police and
the rights of all persons who are called for enquiries or whose conduct
is the subject matter of investigation at the hands of the police. It is
only for this reason that we have examined the grievance made by the
petitioner regarding the insufficiency and inefficacy of the available
machinery on the above issues.
12. In this background, on the 30th of August, 2017, we had called
upon a report from the Registrar General of this court who is a senior
officer of the Delhi Higher Judicial Services. The Worthy Registrar
General was requested to examine the issues urged by the petitioner as
well as the circulars issued by the Commissioner of Delhi Police
which are in vogue and have been noticed above. It appears that an
extensive consultative process was adopted by the Registrar General
who was joined in the deliberations not only by Mr. Satyakam, learned
ASC but also by senior officers of the Delhi Police including Mr.
W.P.(C)No.7608/2017 Page 8 of 15
Virender Chahal, Joint Commissioner of Police, Central District. A
report dated 3rd November, 2017 (page 422) stands submitted to this
court.
13. Inasmuch as the parties before us had some suggestions of these
recommendations, the matter was subjected to reconsideration which
culminated in an additional report dated 12th December, 2017 (page
477).
14. These reports were placed before this court and considered on
23rd November; 4th December; 14th December; 28th December, 2017
and 19th January, 2018. During these deliberations, it appears that Mr.
Sanjay Jain, learned Additional Solicitor General of India had also
entered appearance and the matter was closely examined. A final
document captioned as “Suggestions on Implementation of the Status
Report of the Registrar General of the Court dated 3rd November,
2017 and 2nd December, 2017” was handed over on 19th January, 2018
which was taken on record.
15. We have heard Mr. Sanjay Jain, learned ASG and Mr.
Satyakam, ASC, GNCTD on the aforesaid issues and the reports.
Upon consideration of the report and the suggestions made by the
parties under the leadership of the Worthy Registrar General and with
their consent, it is directed that so far as working of Section 41A, the
following procedure shall be strictly followed by the police in Delhi:
W.P.(C)No.7608/2017 Page 9 of 15
Procedure for issuance of notices/order by police
officers under Sections 41A
“(i) Police officers should be mandatorily required to
issue notices under Section 41A CrPC (in the prescribed
format) formally to be served in the manner and in
accordance with the terms of the provisions contained in
Chapter VI of the Code.
Model form of notice under Section 41A CrPC is
reproduced herein below:-
“ MODEL SECTION 41A CrPC NOTICE
Sr.No………….
Police Station ……………..
To,
[Name of Accused/Noticee]
[Last Known Address]
[Phone No./Email ID (if any)]
Notice under Section 41(A) Cr.P.C.
In exercise of the powers conferred under
subsection (1) of section 41A of Cr.P.C., I hereby
inform you that during the investigation of FIR/Case
No. ………………. dated ………. u/s
…………registered at SV & ACB Police Station
……………., it is revealed that there are reasonable
grounds to question you to ascertain facts and
circumstances from you, in relation to the present
investigation. Hence you are directed to appear
before me at ……. am/pm on …… at ……….Police
Station.
You are directed to comply with all and/or the
following directions :-
(a) You will not commit any offence in future.
W.P.(C)No.7608/2017 Page 10 of 15
(b) You will not tamper with the evidences in the case
in any manner whatsoever.
(c) You will not make any threat, inducement, or
promise to any person acquainted with the fact of the
case so as to dissuade him from disclosing, such facts
to the court or to the police officer.
(d) You will appear before the Court as and when
required/directed.
(e) You will join the investigation of the case as and
when required and will cooperate in the
investigation.
(f) You will disclose all the facts truthfully without
concealing any part relevant for the purpose of
investigation to reach to the right conclusion of the
case.
(g) You will produce all relevant documents/material
required for the purpose of investigation.
(h) You will render your full co-operation/assistance
in apprehension of the accomplice.
(i) You will not allow in any manner destruction of
any evidence relevant for the purpose of
investigation/trial of the case.
(j) Any other conditions, which may be imposed by
the Investigating Officer/SHO as per the facts of the
case.
Failure to attend/comply with the terms of this
Notice, can render you liable for arrest under
Section 41A(3) and (4) of CrPC.
[Signature]
[Name and Designation]
[affix seal]
………………………………………………………………
W.P.(C)No.7608/2017 Page 11 of 15
Sr.No. ………..
ACKNOWLEDGEMENT
In compliance with the abovementioned notice
dated ……. issued under Section 41A CrPC, the
Noticee has appeared on ………… from ……….. to
…………… That the Noticee’s presence has been
recorded in the register to be maintained by the
Police Station………………
This acknowledgement is being issued in
compliance with Section 41A CrPC. The documents
produced by the noticee have duly been seized vide
seizure memo/production memo (copy enclosed).
The noticee undertakes to continue to comply
with any further notices that she/he may receive
during the course of the present investigation.
[Signature of Accused] [Signature of IO]”
(ii) The concerned suspect / accused person will
necessarily need to comply with the terms of the notice
under section 41 A and attend at the requisite time and
place.
(iii) Should the accused be unable to attend at the
time for any valid and justifiable reason, the accused
should in writing immediately, intimate the investigating
officer and seek an alternative time within a reasonable
period, which should ideally not accede a period of four
working days, from the date on which he / she were
required to attend, unless he is unable to show justifiable
cause for such non-attendance.
(iv) Unless it is detrimental to the investigation, the
police officer may permit such rescheduling, however
only for justifiable causes to be recorded in the case
diary. Should the investigating officer believe that such
extension is being sought to cause delay to the
investigation or the suspect / accused person is being
W.P.(C)No.7608/2017 Page 12 of 15
evasive by seeking time, (subject to intimation to the
SHO / SP of the concerned Police Station), deny such
request and mandatorily require the said person to
attend.
(v) A suspect / accused on formally receiving a notice
under section 41A CrPC and appearing before the
concerned officer for investigation / interrogation at the
police station, may request the concerned IO for an
acknowledgement,
(vi) In the event, the suspect / accused is directed to
appear at a place other than the police station (as
envisaged under Section 41A(1)CrPC), the suspect will
be at liberty to get the acknowledgement receipt attested
by an independent witness if available at the spot in
addition to getting the same attested by the concerned
investigating officer himself.
(vii) A duly indexed booklet containing serially
numbered notices in duplicate / carbon copy format
should be issued by the SHO of the Police Station to the
Investigating Officer. The Notice should necessarily
contain the following details:
a Serial Number
b Case Number
c Date and time of appearance
d Consequences in the event of failure to
comply
e Acknowledgment slip
(viii) The Investigating Officer shall follow the
following procedure:-
W.P.(C)No.7608/2017 Page 13 of 15
a The original is served on the
Accused/Suspect;
b A carbon copy (on white paper) is retained
by the IO in his / her case diary, which can
be shown to the concerned Magistrate as
and when required;
c Used booklets are to be deposited by the
IO with the SHO of the Police Station who
shall retain the same till the completion of
the investigation and submission of the
final report under section 173 (2) of the
Cr.P.C.
d The Police department shall frame
appropriate rules for the preservation and
destruction of such booklets
(ix) Procedure booklets in format identical to the
above prescription in guideline (vii) & (viii) with
modifications having regard to the statutory provisions
in the forms for the notices and acknowledgment shall be
maintained.
(x) Failure on the part of the IO to comply with the
mandate of the provisions of the Cr.P.C and the above
procedure shall render him liable to appropriate
disciplinary proceedings under the applicable rules and
regulations as well as contempt of Court in terms of the
directions of the Hon’ble Supreme Court in the case of
Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273.
(xi) Publicity should be undertaken and pamphlets
educating the public at large, should be issued by the
DCP of all Districts.
(xii) The above information should be displayed at
prominent places in Police stations, the subordinate
courts and the High Court and made available to with
the State and District Legal Services Authorities, to
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inform the public of their rights and recourses available
to them.
(xiii) Training programmes be specially formulated for
Police Officers and Judicial Officers to sensitize them
towards effective compliance of Section 41A, 91, 160
and 175 of the CrPC.”
16. It is directed that the above procedure shall apply also to the
working of Sections 91, 160 and 175 of the CrPC as well. The above
procedure shall be mandatorily followed by the Delhi Police when
working the requirements of all the above noted sections.
17. The respondent no.2 shall issue a circular forthwith upon receipt
of a copy of this order directing the strict compliance of the procedure
laid above, by every police personnel. The Circular shall be also
posted on the official website of the Delhi Police and effective
publicity given to ensure that the public is apprised of the procedure
which has to be followed.
18. The necessary features of the Circular shall be prominently
displayed at all police stations in English and vernacular to enable
every person who visits the police station of the procedure which has
to be followed.
19. The present writ petition is a laudable effort on the part of a
petitioner who, though facing criminal prosecution, has opted to
pursue larger public interest and to bring some transparency to the
manner of police functioning.
W.P.(C)No.7608/2017 Page 15 of 15
20. We also place on record our deep appreciation for the assistance
tendered by Mr. Sanjay Jain, learned ASG; Mr. Nikhil Borwankar,
Advocate; Mr. Satyakam, learned ASC-GNCTD and Mr. Dinesh
Kumar Sharma, the Registrar General of this court in assisting this
court in the formation of effective guidelines which shall go a long
way in ensuring transparency in the working of the police machinery
and ensuring justice to suspect accused persons as well as those
required to appear before the police.
21. In view of the above, the prayer made in this writ petition stands
satisfied. The petition is disposed of in terms thereof.
22. Let a copy of this order be sent to the District Judges for
circulation amongst all trial courts to ensure compliance thereof.
ACTING CHIEF JUSTICE
C.HARI SHANKAR, J
FEBRUARY 07, 2018/kr