• IPC 420 and 406, High court order not to arrest but follow 41a CrPC

My father before two months charged with false IPC 420 and 406. Our lawyer put squash petition in high court. But court said that at this stage case can't be squashed but asked police to follow 41a crpc. My father is now absconded because of life threat but police asking our lawyer to give the information where we stay we want to give summons. Our problem is if we go to take summons to our town my father is having a life threat from that place......so please some one help me what. Step should be taken to save my father.
Asked 2 years ago in Criminal Law from Hyderabad, Andhra Pradesh
1. Well t appears that you or your father wa not properly advised as he should have applied for bail first and then and then only should have filed quash petition.
2. However it is always better later than never. Apply for his anticipatory bail asap in default of which he would be put into more trouble .
3. After taking bail he can go for quashing or even remain outside the place where he is facing life threat.
Devajyoti Barman
Advocate, Kolkata
5219 Answers
54 Consultations
4.9 on 5.0
1. Your entire legal strategy is flawed.

2. You should have first sought bail from the court and only thereafter gone for quashing. 

3. In the absence of the protective cover of anticipatory bail your father can now be arrested at any time. If he is arrested it may be difficult for him to come out of jail any time soon.

4. Immediately apply for the anticipatory bail of your father lest he is arrested and put behind bars.
Ashish Davessar
Advocate, Jaipur
18151 Answers
448 Consultations
5.0 on 5.0
1. Whether police serves send summons under section 41a IPC or not you can file petition for AB.
2. There is no question of giving or allowing bail merely on receiving or refusing accepting such summons.
3. Ask him to apply for AB fast else grave danger is waiting for him.
Devajyoti Barman
Advocate, Kolkata
5219 Answers
54 Consultations
4.9 on 5.0
1. AB is granted by sessions court or high court only. I wonder how could your lawyer say that it is granted by lower court which it can never does so.
2. That is why he is advised to apply for AB from high court.
3. Change this lawyer. He doesn't seem to have sound knowledge in matters of this nature.
4. After grant of AB he need not go unless the police asks for his presence for the purpose of investigation. After AN your father has nothing to worry from police.
Devajyoti Barman
Advocate, Kolkata
5219 Answers
54 Consultations
4.9 on 5.0
Fear, elopement, absconding are not the real solution for facing a case if it is false case .Your father  must have to cooperate in police investigations and comply with the terms of the notice.

41A. CrPC deals with Notice of appearance before police officer. –
 (1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, 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.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
 [(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.”
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
Once the AB is granted your father needs to appear before the police for purpose of investigation. Further bail order will have to be placed on record before Magistrate.
Sudershani Ray
Advocate, New Delhi
192 Answers
25 Consultations
4.9 on 5.0
Ideally he should.
However in the context of recent supreme court decision he can afford to wait till submission of chargesheet as the petitioner getting AB need not immediately go to Magistrate to regularise the bail. The Supreme Court removed the time limit to do so till the submission of charge sheet.
Devajyoti Barman
Advocate, Kolkata
5219 Answers
54 Consultations
4.9 on 5.0
1. The lower court can and does grant anticipatory bail regardless of whether summons have been issued under 41A or not. There is no nexus between issuing of summons and grant of anticipatory bail by the court.

2. I reiterate that your father may be arrested if he does not have the protection of anticipatory bail.

3. File for anticipatory bail immediately.
Ashish Davessar
Advocate, Jaipur
18151 Answers
448 Consultations
5.0 on 5.0
After the AB is obtained by him he need not go to the police station until and unless his presence is requisitioned by police. He cannot then be arrested by the police on his appearance before it.
Ashish Davessar
Advocate, Jaipur
18151 Answers
448 Consultations
5.0 on 5.0
1. AB will not draw curtains on the case. The case would proceed on merits before the court.

2. As mentioned earlier, your father need not appear before police unless specifically told to appear. In so far as appearing before magistrate is concerned, he may have to appear at the time of charge sheet.
Ashish Davessar
Advocate, Jaipur
18151 Answers
448 Consultations
5.0 on 5.0
Hi
it is advisable to comply with the high court order to follow procedure under 41 A Crpc.

Now in this condition the police has the duty to ensure his safety as there is n order from the court.
if your dad is not presenting himself before the police the last part of 41-A shall be applied to him. 41-A Crpc clause 4, says-

(4) Where such person,at any time ,fails to comply with the terms of the notice ,it shall be
lawful for the police officer to arrest him for the offence mentioned in the notice ,subject
to such orders as may have been passed in this behalf by a competent Court .
 Anticipatory bail shall not be entertained by sessions court as there is an existing compliance order by high court.
You can approach the high court again with anticipatory bail application as it can not collide with the existing order   as it is your dad's right to apply for it . You should have tried first for the anticipatory bail instead of quash petition in this stage.
Absconding will not ensure any benefit as it will further take way the merit to get bail.
If you apprehend about the safety approach the high court on this ground, after getting an application for anticipatory  bail rejected by the sessions court.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
1. It is strange that your father has not availed AB but filed the quashed petition,

2. Ask him to file AB petition now,

3. After availing AB, let him take regular bail and face the case,

4. After charge sheet is filed,if any, quash petition should be filed.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
1. First protect your father from being arrested by availing AB to be converted to regular bail,

2. After he is protected from being arrested, he can file any application and contest the case on merit,

3. He can also file an application for waiving attendance for the threat on his life.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
1. AB is not granted by the lower court,

2. It is granted by the sessons court or the High Court,

3. Engage your lawyer anew,

4. Avail AB for your father after which he can attend the court.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
1. He can appear before the Magiatrate to get regular bail which is suggested,

2. He can also wait till the chargesheet is filed.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
Dear Querist
when the High Court passed an order to follow section 41A of Cr.P.C. the police have no right to arrest your father without issue the notice u/s 41A of Cr.P.C, when the police issue notice u/s 41A of Cr.P.C then your father may apply for Anticipatory Bail before session court or High Court with the facts of the case.

the bail may be grant with condition or without condition as the court think fit.

if there is any condition for appearing before PS & Co-operate with the investigation then when ever the IO will ask to join the investigation then your father have to appear before IO to join the investigation.

if there is any apprehension for life threat then there is always option for filing complaint before police or court for securing the law & order.
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Criminal Lawyers

T Kalaiselvan
Advocate, Vellore
14056 Answers
127 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18151 Answers
448 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5219 Answers
54 Consultations
4.9 on 5.0
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
5.0 on 5.0
Atulay Nehra
Advocate, Noida
436 Answers
15 Consultations
4.7 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2752 Answers
41 Consultations
4.9 on 5.0
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0