Karnataka High Court: While considering the instant petition questioning the notice issued to the petitioner by the Sub-Inspector of Police under Section 41(1)(a) of CrPC dated 6-6-2024, which was bereft of any reasons, the Bench of M. Nagaprasanna, J.*, stated that a citizen must know as to why he is being summoned. The Court further took note of the change criminal procedural regime in the form of corresponding Section 35 of Nagarik Suraksha Sanhita, 2023 (BNSS), which deals with Arrest of Persons. The Court therefore asked the State Government to issue guidelines drawing a check list for all those Station House Officers, who would summon any person under Section 35 of the BNSS.
Giving the Government 8 weeks’ time to frame such guidelines, the Court laid down certain steps that must be followed whenever a person is to be summoned under S. 35, BNSS.
Background and Contentions: The petitioner who is a noted journalist, was issued a notice dated 6-6-2024 via WhatsApp by the Sub-Inspector of Police, Amruthahalli Police Station, calling upon him to appear Amruthahalli Police Station on 07-06-2024. The impugned notice issued under S. 41(1)(a) of CrPC was devoid of reasons as to why the petitioner was being summoned.
The petitioner contended that S. 41 cannot be invoked for issue of notice, without the crime being registered against any person.
The Sub-Inspector admitted before the Court that he forgot to mention the crime number while issuing the impugned notice. Therefore, he issued second notice dt. 10-6-2024 indicating crime number; however, by then, the instant petition had already been filed.
Court’s Assessment: Perusing the matter, the Court noted that Section 41 (1) deals with arrest without a warrant and Section 41(2) mandates only with a warrant. However, it is Section 41-A of CrPC that deals with notice of appearance before police officer. The Court further noted that the Police Officer in all cases where arrest of a person is not required under the provisions of Section 41(1), a notice directing the person to appear can be issued. There are certain conditions stipulated in Section 41-A (2), (3) and (4) which would not require elaboration.
Therefore, the Court pointed out that the impugned notice issued in the instant case though quotes Section 41(1)(a), it is in fact issued under Section 41-A, as the petitioner was directed to appear before the Police.
Perusing the notice dated 6-6-2024, the Court noted that the impugned notice did not indicate that the petitioner was being summoned in any crime registered. Therefore, it is directing appearance without a crime being registered. The Court, via its order dated 11-6-2024 put an interim stay on the impugned notice. However, subsequent notice on 10-6-2024 was issued to the petitioner via WhatsApp, which clarified why the petitioner was being summoned.
Emphasizing upon the necessity of reasons for issuance of summons notice under S. 41-A, CrPC, the Court said that the noticee must be aware of why he is being summoned to the Police Station, as summoning to the Police Station is not summoning a person to a happy place. Such notice must contain the crime number and the purpose for which he is being summoned. The duty of the Station House Officer would not stop at mentioning crime number, but he should also attach to the communication, a copy of the FIR, so registered against the noticee, as power is available to summon the accused or any person in connection with a crime. Therefore, the noticee, without knowing the crime number and without getting a copy of the FIR, cannot be asked to appear before an officer of the police station on receipt of notice under Section 41-A.
Taking note of the new procedural regime under Section 35, BNSS, which is the corresponding provision of S. 41, CrPC, the Court noted that it is mandatory for a notice to be issued under Section 35 of the BNSS to mention the crime number, the offence alleged in the crime so registered and necessarily append to it a copy of the FIR so registered, as any person who receives the notice must be aware for what he is being summoned to the Police Station. “The rigour is little stronger. Stronger the rigour, the noticee is required to know all that he has to reply, prior to his appearance before the Police”.
Therefore, the Court asked the State Government to frame suitable guidelines/checklist for the Station House Officers vis-a-vis S. 35, BNSS and till the time Government deliberates over framing these guidelines, the Court laid down the following steps that must be followed:
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The notice under Section 35 of the BNSS shall mention the crime number and the offence alleged in the crime number. This can be communicated to the noticee either through the conventional method or through electronic mode.
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The communication shall attach a copy of the FIR so registered, as the FIR would contain the gist of the complaint.
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In the event, notice does not contain the crime number, the offence alleged or appending of the FIR, subject to just exceptions, the noticee is not obliged to appear before the officer who has directed him to appear, and no coercive action can be taken for non-appearance.
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It is also necessary for the Police Department to bring about a robust system for the FIR being uploaded immediately on their registration and make it search friendly.
Decision: Allowing the writ petition in part, the Court quashed the impugned notice dt. 6-6-2024 and sustained the notice issued on 10-6-2024. The Court directed the Registry to transmit the copy of the instant order to the Secretary, Department of Home Affairs, the DG and IGP of the State of Karnataka, for issuance of guidelines, within 8 weeks from the date of receipt of the copy of the order.
[Tavaragi Rajashekhar Shiva Prasad v. State of Karnataka, 2024 SCC OnLine Kar 67, decided on 19-07-2024]
*Order by Justice M. Nagaprasanna
Advocates who appeared in this case:
For petitioner- M. ARUNA SHYAM, SR. ADVOCATE A/W SUYOG HERELE E., ADVOCATE
For respondent- HARISH GANAPATHI, HCGP
Buy Code of Criminal Procedure, 1973 HERE
