RESEARCH NOTE- COMPLIANCE OF SECTION 41A AFTER ARNESH KUMAR

SUPREME COURT
RINI JOHAR V. STATE OF M.P., (2016) 11 SCC 703
22. We have referred to the enquiry report and the legal position prevalent in the field. On a
studied scrutiny of the report, it is quite vivid that the arrest of the petitioners was not made
by following the procedure of arrest. Section 41-A CrPC as has been interpreted by this
Court has not been followed. The report clearly shows that there have been number of
violations in the arrest, and seizure. Circumstances in no case justify the manner in
which the petitioners were treated.
23. In such a situation, we are inclined to think that the dignity of the petitioners, a doctor
and a practising advocate has been seriously jeopardised. Dignity, as has been held in
Charu Khurana v. Union of India [Charu Khurana v. Union of India, (2015) 1 SCC 192 :
(2015) 1 SCC (L&S) 161] , is the quintessential quality of a personality, for it is a highly
cherished value. It is also clear that liberty of the petitioner was curtailed in violation of law.
The freedom of an individual has its sanctity. When the individual liberty is curtailed in
an unlawful manner, the victim is likely to feel more anguished, agonised, shaken,
perturbed, disillusioned and emotionally torn. It is an assault on his/her identity. The
said identity is sacrosanct under the Constitution. Therefore, for curtailment of liberty,
requisite norms are to be followed. Fidelity to statutory safeguards instil faith of the
collective in the system. It does not require wisdom of a seer to visualise that for some
invisible reason, an attempt has been made to corrode the procedural safeguards which are
meant to sustain the sanguinity of liberty. The investigating agency, as it seems, has put its
sense of accountability to law on the ventilator. The two ladies have been arrested without
following the procedure and put in the compartment of a train without being produced before
the local Magistrate from Pune to Bhopal. One need not be Argus-eyed to perceive the same.
Its visibility is as clear as the cloudless noon day. It would not be erroneous to say that the
enthusiastic investigating agency had totally forgotten the golden words of Benjamin
Disraeli:
“I repeat … that all power is a trust—that we are accountable for its exercise—that, from
the people and for the people, all springs and all must exist.”

SUBHASH KASHINATH MAHAJAN V. STATE OF MAHARASHTRA, SCC

ONLINE SC 243 AT PAGE 509
68. Law laid down by this Court in Joginder Kumar [Joginder Kumar v. State of U.P., (1994)
4 SCC 260 : 1994 SCC (Cri) 1172] , Arnesh Kumar [Arnesh Kumar v. State of Bihar, (2014)
8 SCC 273 : (2014) 3 SCC (Cri) 449] , Rini Johar [Rini Johar v. State of M.P., (2016) 11
SCC 703 : (2017) 1 SCC (Cri) 364] , Siddharam satlingappa [Siddharam Satlingappa Mhetre
v. State of Maharashtra, (2011) 1 SCC 694 : (2011) 1 SCC (Cri) 514] to check uncalled for
arrest cannot be ignored and clearly applies to arrests under the Atrocities Act. Protection of
innocent is as important as punishing the guilty.
 SOCIAL ACTION FORUM FOR MANAV ADHIKAR V. UNION OF INDIA, 2018
SCC ONLINE SC 1501
30. The aforesaid decision, as is perceptible, is in accord with the legislative provision. The
directions issued by the Court are in the nature of statutory reminder of a
constitutional court to the authorities for proper implementation and not to behave like
emperors considering the notion that they can do what they please. In this context, we
may refer with profit to a passage from Joginder Kumar v. State of U.P. [Joginder Kumar v.
State of U.P., (1994) 4 SCC 260 : 1994 SCC (Cri) 1172] : (SCC pp. 267-68, para 20)
“20. … No arrest can be made in a routine manner on a mere allegation of commission of
an offence made against a person. It would be prudent for a police officer in the interest
of protection of the constitutional rights of a citizen and perhaps in his own interest that
no arrest should be made without a reasonable satisfaction reached after some
investigation as to the genuineness and bona fides of a complaint and a reasonable belief
both as to the person's complicity and even so as to the need to effect arrest. Denying a
person of his liberty is a serious matter. The recommendations of the Police Commission
merely reflect the constitutional concomitants of the fundamental right to personal liberty
and freedom. A person is not liable to arrest merely on the suspicion of complicity in an
offence. There must be some reasonable justification in the opinion of the officer effecting
the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest
must be avoided if a police officer issues notice to person to attend the Station House and not
to leave the Station without permission would do.”

SATENDER KUMAR ANTIL V. CBI, 2022 SCC ONLINE SC 825 AT PAGE 83

23. Section 41 under Chapter V of the Code deals with the arrest of persons. Even for a
cognizable offence, an arrest is not mandatory as can be seen from the mandate of this
provision. If the officer is satisfied that a person has committed a cognizable offence,
punishable with imprisonment for a term which may be less than seven years, or which may
extend to the said period, with or without fine, an arrest could only follow when he is
satisfied that there is a reason to believe or suspect, that the said person has committed an
offence, and there is a necessity for an arrest. Such necessity is drawn to prevent the
committing of any further offence, for a proper investigation, and to prevent him/her from
either disappearing or tampering with the evidence. He/she can also be arrested to prevent
such person from making any inducement, threat, or promise to any person according to the
facts, so as to dissuade him from disclosing said facts either to the court or to the police
officer. One more ground on which an arrest may be necessary is when his/her presence is
required after arrest for production before the court and the same cannot be assured.
MOHD. ASFAK ALAM V. STATE OF JHARKHAND, 2023 SCC ONLINE SC 892 AT
PAGE 641
16. The impugned order of rejecting the bail and directing the appellant, to surrender and
later seek bail, therefore, cannot stand, and is hereby set aside. Before parting, the Court
would direct all the courts seized of proceedings to strictly follow the law laid down in
Arnesh Kumar [Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 : (2014) 3 SCC (Cri)
449 : (2014) 8 SCR 128] and reiterate the directions contained thereunder, as well as other
directions.

DELHI HIGH COURT

ANURADHA GOYAL V. STATE (NCT OF DELHI), 2020 SCC ONLINE DEL 450
5. It is not that in every case the police has to necessarily arrest the accused persons. The
Hon'ble Supreme Court in the case titled as Arnesh Kumar v. State of Bihar….

DEVANGANA KALITA V. STATE (NCT OF DELHI), 2020 SCC ONLINE DEL 1092
15. The petitioner satisfies the triple test upheld in the judgment of the Hon'ble Supreme
Court in P Chidambaram v. Director of Enforcement (Criminal Appeal No 1831/2019) dated
04.12.2019 in the manner that the petitioner herein was arrested without even a notice
under Section 41A of the Cr. P.C. Moreover, she remained available at her home on
23.05.2020, and even provided her phone to the Respondent previously, as well as joined
investigation. Evidently, she did not try to evade arrest or even file for anticipatory bail
because she had no reason to believe that she ought to be in custody. The petitioner is a
student pursuing her higher education and sufficient standing in society without any
possibility of fleeing from justice.

BOMBAY HIGH COURT

BHAIRARAM SARASWAT V. STATE OF MAHARASHTRA, 2024 SCC ONLINE
BOM 1075
7. Prima facie, we are doubtful whether Section 41A notice was served on the petitioner
and whether the alleged notice served on the petitioner can be said to be a notice under
Section 41A, more particularly, when the petitioner was picked-up by the police, straight
away. Prima facie, it appears that the police have not complied with the provisions of law
and as such there is substance in the allegations made by the petitioner in the aforesaid
petiton. Custodial torture is also alleged. The allegations as against the police officers are
serious and the same need to be responded to by them.
8. Prima facie, considering there is violation of the provisions of law, in the peculiar facts,
we deem it appropriate to grant interim bail to the petitioner until further orders, on the
following terms and conditions:…
 CHANDA KOCHHAR V. CBI, 2024 SCC ONLINE BOM 1255
18. The scope and ambit of Section 41 and 41A as well as the dictum of the Apex
Court in Satyender Kumar Antil, Arnab Goswami etc was considered by the co-ordinate
Bench of this Court while granting interim bail to the petitioners for non compliance of
the mandate of Section 41A. We are conscious of the fact that the interim order does not
substantially decide the rights, liability or lis between the parties and that the interim order is
always subject to the final order, which will adjudicate the final rights and liabilities of the
parties. Hence, there can be no gainsaying that the prima facie observation or tentative view
expressed at interim stage is not binding at the final adjudication.
19. Nevertheless, a perusal of order dated 09.01.2023 reveals that while considering the
plea for interim bail pending final disposal of the petition, this Court referred to the relevant
provisions under Section 41, 41A, 60 and 60A and relying upon the principles enunciated by
the Apex Court in Satyendra Kumar Antil, Arnab Goswami, Santosh, Joginder Kumr, Mohd
Zuben and considered whether the petitioners arrest being contrary to the mandate of law i.e.
whether the arrests are in violation of Section 41, 41A and 60A of Cr. P.C., the
petitioners are entitled to be released on bail.
34. Under the circumstances, and for the reasons supra, the arrest of the petitioners is held
to be illegal for breach of mandatory provision under Section 41A Cr. P.C. Hence the
petition is allowed in terms of prayer clause (a)(ii). The Interim bail granted by order dated
9.1.2023 is confirmed. The petitions and the interim applications, if any, stand disposed of in
above terms.

SHIVRAJ WAMANRAO MOHAD V. STATE OF MAHARASHTRA, 2023 SCC

ONLINE BOM 2137
7. The Apex Court has held that sub-clause (1)(b)(i) of Section 41 has to be read along with
sub-clause (ii), and therefore, both the elements of ‘reasons to believe’ and ‘satisfaction qua
an arrest’ are mandated and accordingly are to be recorded by the Police Officer. The Apex
Court has discouraged the practice followed by the Investigating Officers of mechanically
reproducing in the case diary of or most of the reasons contained in Section 41 of the Code
for effecting arrest.
8. Thus, firstly, the Police Officer has to take a decision whether or not the accused should
be arrested. He has to record the reasons in writing in support of the decision. If the Police
Officer takes decision ‘not to arrest’ the accused, the said decision shall be communicated to
the concerned Magistrate within two weeks from the date of institution of the case/FIR. This
decision, however, should be taken as expeditiously as possible, for the reason that the best
evidence could be collected immediately after commission of the offence and further to rule
out the possibility of tampering with the evidence. If the Police Officer takes a decision ‘to
arrest’ the accused, then upon his arrest the Police Officer is duty-bound to produce the
accused before the Magistrate within 24 hours and while producing the accused, the Police
Officer is duty-bound to furnish the reasons and material which necessitated the arrest and
thereupon the Magistrate is duty-bound to peruse the report furnished by the Police Officer
and only after recording its satisfaction the Magistrate will authorise further detention.
Needless to mention that the satisfaction by the Magistrate will be reflected in its order.
9. The Apex Court has then warned that failure to comply with directions shall render
the Police Officer concerned liable for departmental action. The Apex Court further
expects the trial Courts to come down heavily on the Police Officers effecting arrest
without due compliance of Sections 41 and 41A of the Code.

SADHANA V. STATE OF MAHARASHTRA, 2023 SCC ONLINE BOM 422

30. This would take me to the next point namely the role of the learned Judicial Magistrate
First Class, Nagpur while dealing with the remand application and granting the police
custody. It is necessary to see whether the learned Judicial Magistrate First Class has
overlooked the mandate of the law as well as the law laid down by the Hon'ble Supreme
Court in the cases of Arnesh Kumar (supra) and Satender Kumar Antil (supra). It is
settled position that before Magistrate authorises detention under Section 167 of the
Cr. P.C., he has to first satisfy that the arrest made is legal and in accordance with law
and all the constitutional rights of the persons arrested are satisfied. If it is found by the
learned Magistrate that the arrest effected by the Police Officer does not satisfy the
requirements of Section 41 of the Cr. P.C., the learned Magistrate is duty bound not to
authorise his further detention and release the accused . The same by no stretch of
imagination could be said to be an empty formality. The learned Magistrate on production of
the arrested accused is duty bound to consider whether specific reasons have been recorded
for effecting the arrest and also whether those reasons are relevant to reach at reasonable
conclusion that one or the other conditions stipulated in Section 41(1)(b)(ii)(a) to (e) of the
Cr. P.C. are attracted. It needs to be stated that in view of the dicta laid down in the case of
Arnesh Kumar (supra), to this limited extent, the concerned Court will have to make a
judicial scrutiny. In order to deal with this point, it would be necessary to go through the
order passed by the learned Judicial Magistrate First Class, Nagpur on 1st December, 2022,
whereby the accused were remanded to police custody for five days. The learned Judicial
Magistrate First Class, Nagpur passed the reasoned order. The perusal of the order would
show that the learned Magistrate took into consideration the remand papers and the case
diary. The learned Magistrate found that there was material to substantiate the satisfaction
recorded by the Investigating Officer with regard to the prima facie involvement of the
accused persons in the crime. The learned Magistrate, as can be seen from the order, was
satisfied that the crime in question was serious crime. It is also seen that the learned
Magistrate was satisfied with the grounds and the reasons stated for arrest as well as seeking
police custody. The perusal of the order would further show that the learned Magistrate
granted an opportunity of hearing to the accused through their advocates before passing the
order. The submissions advanced by the learned advocate appearing for the accused and the
learned APP for the State, the remand applications and other papers were considered. In my
view, by applying any standard, the order passed by the learned Magistrate cannot be said to
be a flawed order. The learned Magistrate by this order put a stamp of approval to the
satisfaction recorded by the Police Officer with regard to the prima facie involvement of the
accused persons in the crime and to the grounds for their arrest put-forth by the Investigating
Officer for police custody. In my view, on the basis of the material on record, it is not
possible to conclude that the exercise undertaken by the learned Magistrate was casual and
mechanical.
VENUGOPAL NANDLAL DHOOT V. CBI, 2023 SCC ONLINE BOM 161
43. In Selvi v. State of Karnataka, the Hon'ble Supreme Court reiterated that Article 20(3) is
an essential safeguard in criminal cases and is meant to be a vital safeguard against torture
and other coercive methods used by the investigating agency. Hence, merely because an
accused does not confess, it does not ipso facto mean that the accused is not co-operating
with the investigation. Article 20(3) of the Constitution enjoys an “exalted status” and serves
as an essential safeguard against torture and coercive measures used by the investigating
Agency. The Courts have time and again reiterated the role of Courts in protecting personal
liberty and ensuring that investigation is not used as a tool of harassment.

CHANDA DEEPAK KOCHHAR V. CBI, 2023 SCC ONLINE BOM 72

33. As a Constitutional Court, we cannot be oblivious to the contravention of the mandatory
provisions of law and the judgments of the Apex Court, in particular, the directions given in
Arnesh Kumar (Supra) and Satender Kumar Antil (Supra). It is expected that the
directions and provisions be complied with by the concerned officers/courts, in letter
and spirit. Needless to state, that personal liberty of an individual is an important
aspect of our constitutional mandate. Merely because an arrest can be made because it
is lawful, does not mandate that arrest must be made. As emphasized by the Apex Court,
a distinction must be made between the existence of the power to arrest and the justification
for exercise of it. It is further observed that if arrests are made in a routine manner, it could
cause incalculable harm to the reputation and self-esteem of a person and that presumption
of innocence is a facet of Article 21, which would enure to the benefit of an accused.
34. In the present case, the reasons recorded by the Officer in the ground of arrest, does not
satisfy the tests laid down in Section 41(1)(b)(ii)(a) to (e) of Cr. P.C., for the reasons set-out
hereinabove. It does not disclose as to whether the arrest was necessary for one or more
purpose(s) as envisaged in the said provision. The same is also in contravention of the
directions given by the Apex Court in Arnesh Kumar (Supra), in particular, the direction
stipulated in para 11.2 and 11.3 which reads thus:
“11.2. All police officers be provided with a check list containing
specified sub-clauses under Section 41(1)(b)(ii);
11.3. The police officer shall forward the check list duly filled and
furnish the reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for further
detention.”
35. Accordingly, in the facts, we hold that the petitioners' arrest is not in accordance with
law. Thus, non-compliance of the mandate of Section 41(1)(b)(ii), Section 41-A and
Section 60-A of Cr. P.C. will enure to the benefit of the petitioners, warranting their
release on bail. We may also note that even the learned Special Judge has overlooked
the mandate of law as well as the dicta laid down by the Supreme Court in Arnesh
Kumar (Supra) and Satender Kumar Antil (Supra). It is incumbent on the judicial officer
authorising detention under Section 167 Cr. P.C., to be first satisfied that the arrest made is
legal and in accordance with law and that all the constitutional rights of the person arrested,
are satisfied. The same is not an empty formality. If the arrest effected, does not satisfy the
requirements of Section 41 of Cr. P.C., the concerned court is duty bound not to authorise
further detention of the accused and release the accused forthwith. Infact, when an accused is
arrested and produced before the concerned court, it is the duty of the said Judge to consider
whether specific reasons have been recorded for arrest, and if so, prima facie, whether those
reasons are relevant and whether a reasonable conclusion could at all, be reached by the
officer that one or the other conditions in Section 41(1)(b)(ii)(a) to (e) are attracted. As
observed in Arnesh Kumar (Supra), to this limited extent, the concerned court will make
judicial scrutiny. A perusal of the remand order passed by the learned Special Judge,
Mumbai, does not record the satisfaction as required to be given for authorising the detention
of the petitioners with the respondent No. 1-CBI. The onus of recording satisfaction lies
not only on the officer but even on the Judge.

ANMOL MADHUKAR DIVEKAR V. STATE OF MAHARASHTRA, 2022 SCC

ONLINE BOM 1056
9. As per Joginder Kumar v. State of U.P., (1994) 4 SCC 260, there should be some
reasonable justification in the opinion of the officer effecting the arrest that such arrest
is necessary and justified. Here, this element is missing. It is also to be noted that the
Courts should not get carried away with the desire of a party to see the other behind
bars. It may be sometimes to settle the personal score and, therefore, the Courts should
be on guard as to whether really the arrest is necessary. Only prima facie case against
the person is also not a criterion to be looked into. But together with whether the arrest is
necessary and as stated in Arnesh Kumar (supra), not only the police officer but also the
learned Sessions Judge or Additional Sessions Judge dealing with an application under
Section 438 of the Code of Criminal Procedure should question ‘why arrest’, ‘is it really
require’, ‘what purpose it will serve’, ‘what object it will achieve’. Therefore, those
observations in Arnesh Kumar (supra) will have to be considered by such Courts.