The Delhi High Court recently laid down guidelines for issuing notice of appearance before police officers under Section 41A of the Code of Criminal procedure.
The Bench comprising Acting Chief Justice Gita Mittal noted that the guidelines were being framed to ensure "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".
It clarified that the procedure needs to be mandatorily followed in the application of Sections 91 (summons to produce document or other thing), 160 (police officer's power to require attendance of witnesses) and 175 (power to summon persons) of the Cr.P.C. as well. The authorities have been directed to ensure strict compliance with the procedure by every police personnel. Besides, the Circular is to be posted on the official website of the Delhi Police, with effective measures to ensure adequate publicity of the same.
In addition, the Circular is expected to be prominently displayed in English and vernacular languages in all police stations, in order to enable every person who visits the police station to be informed of the procedure that should be followed.
The Court was hearing a Petition filed by one Mr. Amandeep Singh Johar, who had claimed that he, along with his parents and relatives, had to face proceedings before the Crime Against Women Cell, New Delhi at the instance of his wife. He had complained that despite having cooperated in the proceedings before the Cell, an FIR was registered against him under Sections 498A (husband or relative of husband of a woman subjecting her to cruelty) and 406 (criminal breach of trust) of the Indian Penal Code.
Mr. Johar had now highlighted the treatment meted out to him during the investigation, alleging that he was regularly summoned to the Police Station without a written notice under Section 41A of the Code. He also relied on several circulars to contend that not only the guidelines were not being followed, they were also insufficient to ensure protection of the rights of the persons who are called for enquiries or are the subject matter of criminal investigations.
Taking note of the importance of the issues raised by Mr. Johar, the Court opined, "...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."
Thereafter, taking into account the reports and suggestions put forth by the parties under the leadership of the Registrar General, the following procedure was laid down for issuance of notice by police officers under Section 41A of the Cr.P.C.:
“(i) Police officers should be mandatorily required to issue notices under Section 41A Cr.P.C (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 Cr.P.C is reproduced herein below:-
“MODEL SECTION 41A Cr.P.C NOTICE
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.
(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 Cr.P.C.
[Name and Designation]
Sr. No. ………..
In compliance with the abovementioned notice dated ……. issued under Section 41A Cr.P.C, 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 Cr.P.C. 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 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 Cr.P.C and appearing before the concerned officer for investigation/interrogation at the police station may request the concerned IO for an acknowledgment,
(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)Cr.P.C), 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:
(viii) The Investigating Officer shall follow the following procedure:-
(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 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 Cr.P.C.”