A REVIEW OF SECTION 41A OF THE CODE OF CRIMINAL PROCEDURE, 1973
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Keywords:
Section 41A, Code of Criminal Procedure, Notice of Appearance, Arrest, arbitrary exercise of power, investigation, processual justiceAbstract
1974) (‘CrPC’) is of a thorough nature and has been sought to be modulated through various judicial and legislative devices.
Section 41A was first introduced by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), which provided that in all cases where arrest is not required u/s 41(1) of the CrPC, the investigating officer ‘may’ issue a notice of appearance, which by the Code of Criminal Procedure (Amendment) Act, 2010 (41 of 2010) was made mandatory as ‘shall’.
Nevertheless, sub-section 3 of Section 41-A of the CrPC provides that where an accused person complies with such notice u/s 41A (1) and attends before the Police officer issuing such notice, such Police officer can still arrest if he/she believes that such arrest is necessary. This power to arrest is subject only to the condition of recording such satisfaction, but without any judicial control over its exercise.
The Supreme Court has laid down that a preliminary inquiry must be conducted in cases where a cognizable offence is not disclosed by the information received. The scope of such preliminary inquiry is limited to gauging whether such information reveals a cognizable offence which may justify the registration of a First Information Report. The procedure u/s 41A of CrPC therefore is not contemplated at the stage of preliminary inquiry to receive selfinculpatory material from a proposed accused.
Self-incrimination at the pre-FIR stage is unknown to criminal law and is illegal.
The purpose of this paper is to explore the real position of law with respect to procedural justice at the stage of investigation and to suggest legislative changes to streamline the same.
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