• Received Appeareance Notice from Cybercell (Under section 41(A) Cr.P.C)

Hello Sir/Madam,

I have received letter from Cyber Police (Under section 41(A) Cr.P.C) to appear in police station with respect to some FIR. Just want to Know whether I have to take Anticipatory Bail before presenting to the police station ? Please help me
Asked 4 years ago in Criminal Law
Religion: Hindu

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13 Answers

Dear sir

We should verify the notice and see under what sections the summons was issued. If it is congnizable or non-congnizable and bailable /non-bailable offence based on that we can take call.

If non-bailable then we can take anticipatory bail and appear before the cyber crime. We will help to get the information cyber crime.

Feel free for any assistance.

Regards

Shettar

Shettar SS
Advocate, Bangalore
182 Answers
1 Consultation

4.4 on 5.0

It will be a good idea to get anticipatory bail before appearing to the police officer as in this case where FIR is register he has power to arrest if he has sufficient reason to arrest without the order of magistrate

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

1. Notice issued under Sec. 41(a) is amended to minimize the abuse by police officials power.

2. It is the notice for which you can respond by appearing to IO Or you can issue legal notice to IO, in case if you are unable to appear on the said date. Get the cyber crime lawyer help on this.

3. Immediate anticipatory bail not required as of now. but only after seeing the FIR, i would able to provide my opinion.

Niranjan
Advocate, Bangalore
844 Answers
9 Consultations

4.9 on 5.0

Hello,

If a notice of 41A has been served then you will not be arrested till them time you participate in the investigation.

No need to take Anticipatory bail.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for anticipatory Bail.

41A. 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.”

Mohammed Mujeeb
Advocate, Hyderabad
19029 Answers
32 Consultations

4.5 on 5.0

No you do not need any anticipatory bail.

Section 41(A) in itself gives you protection from arrest.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Dear Sir,

You may appear before the police and explain the things it will be issued only when police not intending to arrest. please see the following judgment of CALCUTTA HIGH Court.

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A notice under section 41A CrPC is necessary where police decides not to arrest an accused and not where arrest is necessary for the purpose of investigation.

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Calcutta High Court (Appellete Side)

Sarifuddin Mondal vs Unknown on 29 July, 2015

Author: Ashim Kumar Roy

1

29.07.2015

CRM No. 5000 of 2015 In Re:- An application for anticipatory bail under section 438 of the Code of Criminal Procedure filed on June 2, 2015 in connection with Shantipur Police Station Case No. 146 of 2015 dated May 15, 2015 under Sections 420/506 of the Indian Penal Code.

And In the matter of : Sarifuddin Mondal .............. petitioner Mr. Sekhar Basu, Mr. Anjan Bhattacharya Mr. Sabyasachi Sen ....... for the petitioner Mr. Manjit Singh, Ld. P.P.

Mr. Sabir Ahmed ...... for the State The petitioner, apprehending arrest in connection with Shantipur Police Station Case No. 146 of 2015 dated May 15, 2015 under Sections 420/506 of the Indian Penal Code, has come to this Court for anticipatory bail.

Mr. Sekhar Basu, learned senior counsel appearing on behalf of the petitioner first contended since in this case none of the offences involved is punishable exceeding 7 years, now in the light of the decision of the Apex Court in the case of Arnesh Kumar vs. State of Behar and Anr. reported in (2014) 8 SCC 273, it is incumbent for the investigating officer to issue a notice under section 41A CrPC within 15 days from the date of institution of the case and such notice not being issued and the period not being extended by the concerned S.P., the attempt made by the investigating officer to arrest the petitioner, is totally illegal and in violation of direction issued by the Hon'ble Supreme Court.

In this regard Mr. Basu referred the relevant observation of the Apex Court and same are reproduced below, (1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;

(2) All the police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

(6) Notice of appearance in terms of Section 41A of CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; (7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction;

(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

Besides above, Mr. Basu refers two other observations of the Apex Court, which are also quoted below, " We are of the opinion that if the provisions of Section 41 CrPC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We wold like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 CrPC for effecting arrest be discouraged and discontinued.

We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine."

It is further contended on the face of such gross illegality committed by the police in any event, now the State cannot stand on the way of granting anticipatory bail to the petitioners. On merit he submitted that the concerned Police Station is completely ousted of its jurisdiction to undertake the investigation in the case, since no part of cause of action arose within its territorial limit. He then added the allegations are absolutely baseless and no fees more than that prescribed by the Kalyani University for B.Ed. course has been charged from any student. It is further submitted that allegation of charging excess fees at the time of admission and making such allegation at the end of the sessions clearly indicates those are false and concocted. He further submitted there is no proof in support of such allegation.

On the other hand, the learned Public Prosecutor refuting the contention of Mr. Basu, submitted that nowhere in the case of Arnesh Kumar vs. State of Behar (supra), the Apex Court observed that it is must for the police to issue notice under section 41A CrPC before arrest of a person in connection with any case involving an offence punishable upto 7 years. He further submitted in this case at all there is no violation of any direction of the Apex Court by the police. He further submitted that a notice under section 41A CrPC is necessary where police decides not to arrest an accused and not where arrest is necessary for the purpose of investigation. He then submitted in this case the allegations are quite serious and a student is making complaint against the Secretary of the B.Ed. College for demanding illegal gratification for qualifying him to appear in final examination for B.Ed. Course. He further submitted according to that student and other students of that college, the petitioner not only now making such illegal demand but even at the time of their admission huge money was obtained from them as a consideration for their admission in the course. He further added that the students did not disclose about payment of huge money to the petitioner at the time of their admission because they were afraid of their future and now they without having any alternative have gone to the police. The learned Public Prosecutor produced the case diary and brought to our notice the relevant materials collected during investigation.

Heard the learned counsel appearing on behalf of the parties. Considered their respective submissions and perused the case diary and the ruling cited.

Already in this order, the direction of the Hon'ble Apex Court has been quoted. On careful consideration of those directions, hardly there is any scope to say that the Apex Court ever directed, if not expressly but even impliedly that in a case of this nature, issuance of notice under section 41A CrPC is mandatory. Now, according to the provisions of 41A CrPC, we find the learned Public Prosecutor is absolutely correct that such notice is required to be served where the investigating agency found that the arrest of the accused is not required under sub-section 1 of section 41. The language of the provision of section 41A CrPC is quite clear and there is no remote ambiguity, therefore and after the authoritative pronouncement of the Apex Court in the case of Arnesh Kumar vs. State of Behar and Anr. (supra), the said provision needs no further interpretation. It is true that the Hon'ble Apex Court observed in all cases, where offence is punishable for a term which may be less than 7 years or may be extended upto 7 years, whether with or without fine, the arrest of the accused is not automatic and before arrest the investigating officer must satisfy himself about the necessity of arrest in terms of the parameter laid down in section 41 CrPC. The Apex Court has also laid down that the investigating officer shall always file and furnish the reasons and the materials which necessitated the arrest of the accused, while forwarding/producing him before the Magistrate for further detention and the Magistrate only after recorded his satisfaction from perusal of the report furnished by the police shall authorize detention.

We are now confronting with a question of granting or non- granting of anticipatory bail to an accused, of course, in connection with a case relating to an offence punishable not exceeding 7 years. This is not a case where we are considering the question of bail or the legality and validity of an arrest by the police or with an order where a learned Magistrate authorizes detention of the accused in custody.

It needs no debate all the above directions of the Apex Court comes into play and makes it obligatory and for a learned Magistrate while he authorising further detention of the accused that is remanding him to custody. Apart from that according to the provisions of sub-section (b) of section 41 CrPC, it is also mandatory for the police officer to record reasons while making arrest.

In the case at hand, we find with the case diary the memo of evidence is produced and in the memo of evidence, the investigating officer of the case highlighted the nature and seriousness of the allegations and the role directly attributed to the petitioner. Not only in the FIR the de facto complainant made a very serious allegations against the petitioner, the Secretary of the concerned B.Ed. College, that he took money from the students for their admission going beyond the charges fixed by the University Authority, still he is demanding further money to clear and qualify them for final examination. Name of some of the students with all particulars has also been furnished. We also find some of them were examined by the police during investigation and their statements were recorded, those are at pages 8, 9, 10 and 11 of the case diary. We agree with the contention of the learned Public Prosecutor that the investigation is on early stage and it is a case where custodial interrogation of the petitioner is necessary for the interest of investigation.

Having regard to above, this application for anticipatory bail stands rejected.

(Ashim Kumar Roy, J.) (Malay Marut Banerjee, J.)

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

You don’t need to apply for AB st this stage

2) visit police station have your statement recorded

Ajay Sethi
Advocate, Mumbai
87895 Answers
6207 Consultations

5.0 on 5.0

Hi, first verify what is the nature of offence in the FIR whether it is bailable or non bailable and it is always better you can apply for anticipatory bail and then go to the police station.

Pradeep Bharathipura
Advocate, Bangalore
5394 Answers
310 Consultations

4.5 on 5.0

Firstly in notice verify whether the offences alleged are bailable or not if it's not apply for anticipatory bail. If it is bailable you can go and get bail from station.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

In case the notice is received you shall not be arrested for the time you cooperate with the police investigation and appear on date of notice so at this time anticipatory bail is not required.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

You can apply for anticipatory bail as precaution .

Noticed issued you you u/s 44a, so definitely some FIR is filed against you.

Police will ask for explanation and role in crime, possibility of arrest is rare at this stage.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

It is better that you first obtain anticipatory bail and then attend the inquiry session becasue who knows what is in store for you.

They may detain you for long hours in the name of investigation and finally they may prepare the FIR and remand you to judicial custody.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

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