Bench: Justice Joymalya Bagchi
Ramesh Sobti filed a petion challenging the notice issued to him to appear before the officer-in-charge in the matter of pending investigation in a criminal complaint filed by Respondent.
The Learned Magistrate after taking cognizance of offences in a complaint filed by the Respondent, alleging commission of offences punishable under IPC, directed an investigation under Section 202 Cr.P.C by the Officer-in-charge of Police Station. Subsequently, on the point of jurisdiction the investigation was transferred to Shakespeare Sarani Police Station. During such investigation, the Police Officer-in-charge at the Shakespeare Sarani issued a notice under Section 41A of Cr.P.C to the Petitioner calling him to appear before him for investigation.
Whether a notice to a proposed accused in the course of investigation by a police officer under Section 202 Cr.P.C is valid or not?
In the present case the Court observed that Section 41A was incorporated in the CrPC as an enabling power to interrogate an accused in respect of offences punishable with up to seven years of imprisonment, when the Police Officer is of the opinion that arrest of the accused is not necessary in the facts of the case. Therefore, the power to issue notice under Section 41A of CrPC is subject to the pre-condition that the Police Officer had the power to arrest the accused under Section 41, but instead resorted to issuing notice of appearance under Section 41A. It was held that the Police Officer investigating under Section 202 is an agent of the Magistrate and does not have power to arrest the accused. Since the Magistrate himself cannot call upon the accused pending the enquiry under Section 202, his agent cannot do so either. The Court further clarified that the Police although can proceed with other aspects of investigation by examining the spot, interrogating the complainant and witnesses, carry on search and seizures to obtain evidence to determine the truth of the allegations, but cannot call upon the accused and interrogate him to elicit his version on the allegations.