S.35 (3) BNSS | Mandating Accused To Appear At Police Station In Regular Intervals Such As Every 15 Days Exceeds Scope Of Notice Power: Orissa High Court
Sanchayita Lahkar
The Orissa High Court Single Bench of Justice Savitri Ratho held that while a police officer is empowered to issue a notice directing an accused to appear before the investigating officer as and when required for the purpose of investigation, mandating the accused to appear at the police station every fifteen days goes beyond the scope of such power and is not proper. The court was hearing a petition filed by a husband and his family members — accused in a matrimonial dispute involving allegations of cruelty and dowry demand — who challenged a notice issued during investigation on the grounds that its conditions were onerous and that its wording improperly portrayed them as already convicted of the alleged offences.
The petition was filed under Section 482 of the Code of Criminal Procedure seeking quashing of certain observations in a notice issued under Section 41A Cr.P.C. and modification of conditions imposed therein. The petitioners comprise the husband and in-laws of the informant, who had filed a complaint before the JMFC, Chandikhole. Pursuant to a direction under Section 156(3) Cr.P.C., a police case was registered for offences under Sections 294/323/506/498-A/34 of the Indian Penal Code read with Section 4 of the Dowry Prohibition Act.
During investigation, notices dated 28.05.2017 were issued under Section 41A Cr.P.C., stating that there was sufficient material to indicate that the petitioners were guilty of committing the alleged offences. The notice required them to appear every fifteen days before the police station and not to leave the territorial jurisdiction without prior intimation to the Investigating Officer.
The petitioners contended that they had been granted anticipatory bail, that some were working outside the district and State, and that the conditions were onerous and illegal, particularly as the notice indicated guilt prior to trial. The State submitted that the notices were in consonance with Section 41A Cr.P.C. and that a charge sheet had been submitted after completion of investigation.
The Court recorded the scope of Section 41A Cr.P.C. and observed, “Section 41-A of the Cr.P.C. provides that in cases where arrest of a person is not required under the provision of Section 41(1), power has been given to the Police Officer to 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.’”
The Court stated, “As it is provided in Section 41 A that the police officer is to, ‘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’, I am of the view that it was within the power of the I.O. to issue notice to the person accused of the offence, to appear before him at the police station or at any other place as and when required for the purpose of investigation, but requiring them to appear every fifteen days was not proper.”
The Court further recorded, “The I.O. has to be careful and specific while issuing the notice, as non compliance of the conditions of the notice would have made the person liable for arrest under Section 41 ( 4) of the Cr.P.C and now under Section 35(6) of the BNSS,” and noted that consequences of non-compliance required precision in drafting.
On the territorial restriction, the Court observed, “As it has been provided in the notice that they should not leave the jurisdiction without prior intimation to the I.O., there was no bar for them to leave the jurisdiction after informing the I.O.” It further stated, “They could have informed the I.O. before leaving the jurisdiction, so that investigation was not hampered. So there is no illegality in this condition.”
With respect to the wording of the notice, the Court observed, “As regards the contention that from the wording of the impugned notice, it appeared that the petitioners had already been held guilty of the offences, the contention has some force as trial of the case had not been held.” The Court added, “The I.O. should therefore have been more careful while preparing the notice.”
The Court held: “As it is provided in Section 41 A that the police officer is to, ‘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’ , I am of the view that it was within the power of the I.O. to issue notice to the person accused of the offence , to appear before him at the police station or at any other place as and when required for the purpose of investigation , but requiring them to appear every fifteen days was not proper .”
“As it has been provided in the notice that they should not leave the jurisdiction without prior intimation to the I.O., there was no bar for them to leave the jurisdiction after informing the I.O. They could have informed the I.O. before leaving the jurisdiction, so that investigation was not hampered. So there is no illegality in this condition. With these observations, the CRLMC is disposed of.”
Advocates Representing the Parties
For the Respondents: Mr. Sarathi Jyoti Mohanty, Additional Standing Counsel
Case Title: Arman Khan & Others v. State of Odisha
Case Number: CRLMC No. 2549 of 2017
Bench: Justice Savitri Ratho
