Section 512(1) provides that whenever it is proved that an accused person has absconded and there is no immediate prospect of arresting him, any Court competent to try or commit such person for trial for the offence complained of may, in his absence, examine the witnesses produced for the prosecution and record their depositions, and such depositions may, on the arrest of the accused person, be used in evidence against him, if the deponent is dead or is incapable of giving evidence, or his attendance cannot be conveniently procurred. It is also to be noted in connection with this that section 164 enables a Magistrate to record, in the same manner as evidence, any statement regarding an offence made by an accused person whomsoever it may implicate.
Can you arrest a person once the FIR is registered under sections 363, 368, 341, 384, 149, 147, 143, 323, 294, 506 of IPC?
Out of total 3 accused in the crime/FIR, investigating officer has been showing 2 of them as absconding and the one who is not absconding(as per him), is also not cooperating with the investigation. Should he be arresting 2 of them who are shown as absconding by him? Sections are 363, 368, 341, 384, 149, 147, 143, 323, 294, 506 of IPC.
14 Answers
Dear Client,
Yes, the investigating officer needs to take steps to arrest the two accused who have been identified as absconding. As per the Indian Penal Code (IPC) and Criminal Code (CrPC), the investigating officer is responsible for ensuring the arrest and prosecution of all the accused.
Aspects of the FIR are serious and call for thorough investigation and arrest of all the accused. In the case of an accused who is absconding but not cooperating, the investigating officer should also consider arrest if non-cooperation hampers the investigation, as provided under CrPC. Failure to cooperate to ensure the smooth running of the investigation may be valid grounds for arrest.
There is an order from a Superior IPS Officer for an arrest but when I meet the Investigating Officer at Police Station, he is telling me that since all the sections 363, 368, 341, 384, 149, 147, 143, 323, 294, 506 of IPC are triable by Judicial Magistrate First Class and have less than 7 years of imprisonment, he cannot arrest them. He mentioned that he had consulted some Public Prosecutor and as per law, he cannot arrest them. Please note these are his words that he cannot arrest etc. Can he serve them 41A notice now so as to intentionally avoid arrest? But then, can he serve 41A after 11 months of FIR? He and I also know that they are NOT truly absconding and are working at a Police Station in a different State. And these are "shown" as absconding by the investigating officer. Please note the FIR against them was registered 11 months ago as per the directions of High Court in a Writ Petition and the chargesheet is still not filed yet. Investigating officer has been making a statement in the reply to certain miscellaneous applications of Bail filed by the non-absconding accused(one who is not cooperating) and this statement of investigating officer is as under: "2 Accused in the department of Police are still absconding". Can he simply make a statement like that? That absconding must be officially on record somewhere? Investigating officer does not want to arrest as the 2 accused are Police Officers. What steps should I take now apart from meeting the Superior Officer again requesting him/her to initiate lawful arrest?
Dear Client,
The investigating officer is correct that offences that are triable only for imprisonment for a term of less than seven years sometimes come as a category of offences that fall under Section 41A of the CrPC, where a notice to appear can be given instead of a warrant of arrest. However, problems come with the delay in such action and the implications of bias arising from the fact that the accused is the police.
First, there is a need to clarify the existence of the accused on the list of individuals who have been declared absconding. This should, of course, be recorded in the police force documents, and there should be attempts to apprehend them if they are indeed fugitives.
If you have not been served, then take advantage of the fact that it has been 11 months since the FIR was filed, and you can tackle the issue of the chargesheet not being filed. It could also mean sheer neglect or maybe deliberate tarpitting by the police in presenting the charge sheet.
To address the situation:
Present an affidavit of complaint and/or representation to the superior officer that the investigating officer has not initiated proper action as per the court order and the superior officer’s direction.
Go to the High Court either with a contempt petition or a writ petition for direction to the investigating officer to do his job under the law, as it is in regard to the investigation and any subsequent arrests, which should not be made with any prejudice.
Indicate that the investigation can be supervised by the court, especially on occasions where police officers are the accused.
It is important to note that all telephone and face-to-face communications should be recorded, and there should be an official record of the communication to support the case being presented to the higher authorities and court.
File complaint against IO with commissioner of police that no efforts have been made to arrest the accused although 11 months have passed since FIR has been registered
that no charge sheet has been filed against accused
If the Police is not acting s per its official duty then you can file writ petition in high court against Police inaction.
Proceedings Against Absconders and Record of Evidence in their
Absence
MEASURES TO ENFORCE APPEARANCE
1. Attachment and sale of property—Sections 87 and 88 of the Code of Criminal Procedure,
2. Proclamation—No proclamation can issue under Section 87 unless a warrant has issued in
the first instance and the Court has reason to believe that the person against whom it was issued
has absconded or is concealing himself so that such warrant cannot be executed
3. Consequences of non-appearance of proclaimed person : Sale of property—If the
proclaimed person does not appear within the time specified in the proclamation, the property
under attachment remains “at the disposal of Government
RECORD OF EVIDENCE IN THE ABSENCE OF THE ACCUSED
Evidence recorded in absence of the absconding accused may be used against him in
certain cases—Section 512(1) provides that whenever it is proved
that an accused person has absconded and there is no immediate prospect of arresting him, any
Court competent to try or commit such person for trial for the offence complained or may, in his
absence, examine the witnesses produced for the prosecution and record their depositions,
3. Proceedings under Section 512—Proceedings under Section 512
should commence by evidence being taken and recorded
(1) that the accused person has
absconded, and
(2) that due pursuit having been made, there is no immediate prospect of
arresting him.
Instead of arresting the accused, the police will now be obliged to issue a "notice of appearance" for any offence punishable with imprisonment up to seven years.
the notice of appearance casts a duty on the accused person to appear before the police and "cooperate" with the investigation. It is only if he fails to comply with the terms of the notice that the question of arresting him will arise.
Under the if authorities are still particular about arresting somebody in the first instance, then the police will specially have to give reasons for that in writing in court.
This is how the new law liberalizes the arrest provisions:* Section 41A (1) says that in all cases punishable with imprisonment up to seven years, "the police officer may, instead of arresting the person concerned, issue to him a notice of appearance."
* Section 41A (3) conveys the import of this far-reaching devise by saying, "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 are of the opinion that he ought to be arrested."
Since notice of appearance is now stipulated in the investigation of all the offences punishable with imprisonment up to seven years, arrest will cease to be an inevitable fallout for accused persons in a wide variety of cognizable cases, including even those that were traditionally classified as non bailable offences" ..
..
..
FIR was registered on 28 June 2023 and I assume 41A can be served on the accused within 2-4 weeks of the time from registration of the FIR, lets say by end of July 2023. After this limitation period, reasons needs to be recorded by the Superior Officer for serving 41A. Otherwise, it is against law I assume. In the month of both November 2023 and March 2024, investigating officer made a statement in the reply to bail applications filed by non-absconding accused(3rd accused) that the other 2 accused Police Officers are still absconding. Since now in June 2024, there is a direction from the Superior Officer for an arrest, can investigating officer serve a 41A notice to the absconding accused Police Officers to save him from an arrest? For eg. today on 8 June 2024, can he serve a 41A notice to absconding Police Officers? Wouldn't that be against the law as its already 11 months post registration of FIR and it will surely look like afterthought attempt to save the Police Officer? Whether Investigating Officer is recording them as absconding or not in the Police Force documents, it is best known to him and if he is making statements of absconding in various miscellaneous applications, I assume he knows what he is doing. Sometimes I feel he is just making those statements and is not recording them anywhere. I also don't know whether I should ask him about it. Lets also assume that "no 41A notice is served to them", "they have not appeared in Police Station even a single time for investigation cooperation", shouldn't investigating officer be arresting them? Also, the weapon of offence, CCTV footage is yet to be recovered from them, etc. What if investigating officer arrests them now? Will he be in trouble if he arrests? My Criminal Writ Petition is pending before the High Court where we are going to argue these points. Superior Officer is ready to help us and has already ordered for arrest to the investigating officer. Is that arrest order invalid/wrong?
Unless 41A notice is served accused does not have to appear to have his statement recorded
2) in your case it appears that accused has not appeared inspite of notice
3) he has been declared absconder as he has refused to cooperate with investigations
4) IO can arrest the accused now
5) he will not be in trouble if he arrests the accused
Since you have already approached high court, you may better be in touch with your high court advocate because he will be having his own idea for presenting arguments suitable to the circumstances.
Besides the police officer has already passed an order for arrest hence you can expect a favorable decision.
Investigating Officer informs me this morning that he got to know yesterday that those 2 accused Police Officers are presently working at a Police Station (which he and we all knew anyways) He mentions that he cannot arrest as the offences are triable only for imprisonment for a term of less than seven years (as mentioned before). How come then he was able to make written statements 2 months ago such as "Accused Police Officers are absconding"? Are they not absconding now? What investigating officer must have done to fix the absconding part or he does not know what he is doing? Considering the sentence in the response above from Adv. Ajay Sethi sir - "in your case it appears that accused has not appeared in spite of notice and he has been declared absconder as he has refused to cooperate with investigations" Can someone confirm that for showing someone as absconding legally by investigating officer, he has to be served a notice and his non appearance/non cooperation is must? Is there any other scenario under which accused can be shown absconding? Does investigating officer need a warrant or an order from the court before arresting in my case? I am going to meet the Superior Officer in 2 days and want to make sure that when I tell him that your arrest order is still not followed by the investigating officer, he will contact investigating officer in front of me and then IO will most likely give an excuse that he cannot arrest as the offences have less than 7 years of imprisonment. Then again the question arises as to then why is he showing them absconding on papers in bail application replies? It is clear that investigating officer is just making excuses to avoid the arrest. But if superior officer again orders for an arrest once I meet him in 2 days, does IO needs to follow his directions irrespective of anything?
The IO if coming under the control of the said higher police officer then the police officer can pass orders to this effect and he can even initiate disciplinary action against the IO if he is failing to obey his orders.
But you should bear the fact in mind that ultimately they are all police personnel, hence in one or the other manner they will try to protect them unless it is a very heinous crime.
The next option before you is that you can file a petition before high court for direction to arrest the absconding police personnels
Section 82 of CrPC provides that at least 30 days be given to a person to present himself in court before declaring him absconding, the judge noted, and said that if a new application is moved by the police, the court could give an appropriate order in keeping with the law.
2) The Madhya Pradesh high court has said that an accused should be given 30 days’ time before he/she can be declared an absconder.
3)I/O needs to follow orders of superior officer
Dear Sir,
The investigating officer's actions and statements appear inconsistent. Legally, to declare someone absconding, the officer must show that a notice was served and the accused failed to comply. If the accused were working at a police station, the claim of their absconding is questionable.
For offences with less than seven years of imprisonment, the officer can issue a notice to appear (Section 41A of the CrPC). If the accused don't comply, they can be arrested without a warrant if necessary.
When you meet the superior officer, highlight the inconsistencies in the investigating officer's actions and request clear, written instructions for the arrest. Document the superior officer's order and follow up to ensure compliance. If the investigating officer still doesn't comply, consider escalating the matter to higher authorities or the judiciary.
- There is no provision in CrPC that for the offence whose punishment is less than 7 years is bailable i.e. Police cannot arrest
- It is looking that the I.O. is malafidely avoiding arresting of the accused, hence in stead of approaching the higher police official , you should approach the court of law.
- You can move an application before the judicial magistrate for know the status of investigation and to arrest the remaining two accused in the case.
Yes some offences above are cognisable so police can areest
