Patna HC upholds mandatory notice requirement under Section 41A CrPC, directs departmental inquiry; persuasive for police procedure
Summary
| Category | Data |
|---|---|
| Case Name | CR. WJC/109/2022 of RUBI DEVI Vs The State of Bihar through the Principal Secretary Deptt. of Home, Govt. of Bihar, Patna. |
| CNR | BRHC010041872022 |
| Date of Registration | 04-02-2022 |
| Decision Date | 30-08-2025 |
| Disposal Nature | DISPOSED |
| Judgment Author | MR. JUSTICE ARUN KUMAR JHA |
| Court | Patna High Court |
| Bench | Single Judge |
| Precedent Value | Persuasive |
| Overrules / Affirms | Affirms the mandatory nature of Section 41A CrPC |
| Type of Law | Criminal Procedure Law |
| Questions of Law | Whether police must issue and properly document a notice under Section 41A CrPC before arrest, and failure to do so warrants writ relief and departmental inquiry? |
| Ratio Decidendi |
The court held that notices under Section 41A CrPC must be served with proper stamping, affixing and recorded in the case diary before any arrest effort. The Investigating Officer’s claim of attempted service, lacking stamp, affixation, diary entry or photographic evidence, was held doubtful. Senior Superintendent of Police, Gaya was directed to inquire into the alleged high-handedness and take action against delinquent officers. Non-compliance with Section 41A CrPC attracts departmental scrutiny even if bail has been granted. Continuation of the writ petition was deemed unnecessary once the inquiry direction was issued. |
| Facts as Summarised by the Court |
The petitioner’s husband, accused in Gaya Muffasil P.S. Case No. 251/2021 (Sections 420, 409 IPC; Section 138 NI Act), was granted bail on 13.07.2023. The petitioner alleged police entered her house, used filthy language and never served the Section 41A notice before attempting arrest. The Senior Superintendent of Police noted discrepancies in the Investigating Officer’s affidavit and called for a report dated 12.09.2023. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | Senior Superintendent of Police, Gaya and investigating officers |
What’s New / What Lawyers Should Note
- Reinforces that Section 41A CrPC notice must bear stamp, be affixed/pasted and recorded in the case diary.
- Failure to comply with procedural requirements of Section 41A invites departmental inquiry.
- High Court disposed petition after directing inquiry, underscoring limited scope of writ when statutory process is underway.
Summary of Legal Reasoning
- Petitioner challenged police high-handedness for not issuing Section 41A notice and illegal entry into her home.
- Respondent’s supplementary affidavit admitted attempted service but lacked diary entry, stamp, affixation or photographic proof.
- Senior Superintendent of Police, Gaya noted the doubtful explanation and called for a report dated 12.09.2023.
- Court directed a departmental inquiry against delinquent officers and disposed the writ petition as no further relief was necessary.
Arguments by the Parties
Petitioner:
- Husband, accused under Sections 420, 409 IPC and Section 138 NI Act, was granted bail.
- Police did not serve Section 41A notice; Investigating Officer’s claim is factually incorrect.
- Police entered her home without notice and abused her.
Respondent (State through SSP Gaya):
- Notices under Section 41A were attempted but accused was absconding; no diary entry was made.
- Notice lacked stamp, was neither pasted nor supported by photographic/video evidence.
Factual Background
The petitioner’s husband faced criminal charges in Gaya Muffasil P.S. Case No. 251/2021 for fraud and criminal breach of trust. He obtained bail on 13.07.2023. The petitioner alleged that police officers, without issuing a Section 41A notice or following mandated procedures, broke into her house, used abusive language and supported the informant. Despite representations, no notice was served, prompting this writ petition.
Statutory Analysis
- Section 41A CrPC requires police to issue a notice directing the accused to appear before the officer in lieu of arrest.
- Notice must be stamped, affixed/pasted, recorded in the case diary and supported by documentary or photographic evidence of service.
- Non-compliance with these procedural safeguards undermines statutory intent and may attract departmental actions.
Alert Indicators
- ✔ Precedent Followed – Mandatory compliance with Section 41A CrPC is reaffirmed.