No To Custody and Yes To Liberty: The Gleam And Glow Of The Revamped Contours Of Section 41 And 41-A Cr.P.C.
Preetinder Singh Ahluwalia, Advocate
Punjab and Haryana High Court, Chandigarh
Email Id : preetinder.chd@gmail.com
Date : 21/03/2024 Location : Punjab and Haryana High Court, Chandigarh
📱 +91 9814140790
No To Custody and Yes To Liberty: The Gleam And Glow Of The Revamped Contours Of Section 41 And 41-A Cr.P.C.
Preetinder Singh Ahluwalia[1*]
The Criminal Code, as adopted by India, can be seen as one of the many remains of the prolonged British Rule over India and accordingly, for the longest time our Criminal Code, seemed to be incoherent with the notion of Liberty, which was consciously incorporated amidst other virtues, within the very seed of the Indian law, i.e. the Constitution of India, so much so that the Preamble to the Indian Constitution extends a solemn obligation to secure the virtue of "Liberty"[2*] to all its citizens, and further over the course of years the Hon'ble Supreme Court[3*] has ensured that the virtue of liberty stands included within the various protections extended by Article 21[4*]. Unfortunately, the provisions as mandated in the Code could be seen to be enabling a floundering bail jurisprudence, with the concept of bail in non-bailable offences being a `discretion of the Court'[5*]. Therefore, with an obscure territory of bail jurisprudence, especially in the backdrop of an increase in the criminal cases registered every year[6*], the words of Justice Krishna Iyer, when he proceeded to observe that the "law is vicariously guilty of dilatory deprivation of citizen's liberty, a consummation vigilantly to be vetoed"[7*], seemed to be the veritable truth of India. With the exalted crime rate, especially with an increase in economic offences as well as matrimonial offences, and with the plodding state of bail jurisprudence, the need for the Code to be revamped was recognized by the Law Commission of India in its 154th Report, which had undertaken an extensive study with a view of removing the gremlins within the Code, pertaining to the subject matters of arrest, custody, remand, as well as the concept of bail alongside other issues[8*]. It is in response to the anomalies pointed out by the Law Commission in its 154th Report, that the Parliament ventured upon amending the Criminal Code, and accordingly, Section 41 in its original avtaar was amended, while a new provision in the form of Section 41-A was incorporated by virtue of the Criminal Law Amendment Act, 2008[9*], for the solitary purpose of setting the groundwork for a further march towards personal liberty.[1* Advocate, practicing at Punjab & Haryana High Court and an alumnus of National Law School of India, University, Bangalore. At his graduation he was awarded a Gold Medal, along side being bestowed with the accolade of the Best Student Advocate Award.]
[2* The Constitution of India, Preamble, w.e.f. 26.01.1950.]
[3* Maneka Gandhi v. Union of India, (1978) 1 SCC 248.]
[4* K.S. Puttaswamy v. UOI, (2017) 10 SCC 1.]
[5* SK Sharma, Dimensions of Judicial Discretion in Bail Matters, Journal of the Indian Law Institute, Volume 22, No. 3 (July-September 1980), pp 351-370.]
[6* NCRB, Crime in India 2016, supra note 45 at 11.]
[7* Babu Singh v. The State of UP, (1978) 1 SCC AIR 527.]
[8* Law Commission of India, One Hundred and Fifty Fourth Report on the Code of Criminal Procedure, 1973 (Act No. 2 of 1974 ((Vol. I).]
[9* The Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) w.e.f. 01.11.2010.]
A. Classification of Offences: The Structure of Bail Jurisprudence as provided by the Code of Criminal Procedure, 1973
The Code observes silence on the definition for the term `Bail'. Consequentially, the process of bail is regulated by the classification of offences as `Bailable' and `Non-Bailable'. The aforesaid classification is extended by virtue of Section 2(a)[10*] of the Code, which defines `Bailable Offence' as "an offence which is shown as Bailable in the First Schedule, or which is made Bailable by any other law for the time being in force;" and wherein `Non-Bailable Offences' have been extended the simpliciter definition of "any other offence".[10* 2(a): "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence.]
Accordingly, it is only on a perusal of Schedule I, which provides for a tabular classification of all the Offences provided under the Indian Penal Code, 1860, as bailable or non-bailable, depending upon the nature of the crime and the punishment accorded for each offence, that the distinction between the two sets of Offences as classified within the Code, becomes apparent. The principle underlying the distinction between Bailable and Non-Bailable offences, boils down to the offences with the punishment of three years or above being put in the bracket of Non-Bailable Offences, while all other offences being coined as Bailable Offences. The consequence of the aforesaid classification is such like, that the arrest under Non-Bailable Offences is governed by the provision prescribed under Section 41 CrPC, while the provision under Section 41 seems to have no bearing on any bailable offence. Pertinently, Section 41 CrPC in its original form, prescribed for the purposes of effecting arrest, the solitary criteria of "receipt of a reasonable complaint, credible information or a reasonable suspicion qua the accused having committed the offence". Thus, the provision under Section 41, in its original avtaar, on account of the unnecessarily wide parameters prescribed for the purposes of effecting arrest in non-bailable offences, was seen as a statutory tool, which was posing a constant threat to the concept of one's liberty.B. The Criminal Law (Amendment Act), 2008: A further Classification of Offences with Punishment up to and beyond 7 Years
"The Horizon of human rights is expanding. At the same time, the crime rate is also increasing....The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the others, of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply declining what is wanted and where to put the weight and the emphasis, of deciding which comes first the criminal or society, the law violator or the law abider.... "[11*]
[11* Joginder Kumar v. State of U.P., 1994 (4) SCC 260.]
The aforesaid words of the Supreme Court, as reiterated by the Law Commission in its 154th Report, seemed to have pricked the Legislative conscience, and as a result the Criminal Law (Amendment) Act, 2008, was passed with a purpose of undoing the harms of the barbaric provision, which enabled the arrest of a person. The notion of preventing unnecessary arrest by enabling the accused to appear before the Investigating Agency and join investigation, was borrowed from a parallel practice having been adopted by the State of Ontario, Canada. An impetuous effort was made by the Hon'ble Supreme Court in the case of Joginder Kumar v. State of U.P., 1994 (4) SCC 260, wherein it had recommended the adaptation of the aforesaid model within the contours of the Indian Criminal Code. Subsequentially, the aforesaid observations of the Hon'ble Supreme Court of India resonated with the Law Commission, which while taking a note of the same had observed as follows:"6.1 The Supreme Court in Joginder Kumar's case laid down some guide-lines regarding the power of arrest by the police. The Court referred to the Report of Sir Cyril Phillips Committee-Report of the Royal Commission on Criminal Procedure (Command Papers 802 1981) wherein the following suggestion was made:
To help to reduce the use of arrest we would also propose the introduction here of a scheme that is used in Ontario (Canada) enabling a police officer to issue what is called on appearance notice. That procedure can be used to obtain attendance at the police station without resorting to arrest provided a power to arrest exists, for e.g. to be fingerprinted or to participate in an identification parade. It would also be extended to attendance for interview at a time convenient both to the suspect and to the police officer investigating the case."
In view of the aforesaid observations and as a concomitant of the recommendations furthered by the Law Commission in its 154th Report, Section 41 was amended to the effect that a further classification was made between offences with punishment up to seven years, and offences with punishment beyond seven years. The aforesaid amendment in context of the offences which are punishable up to seven years, put a rest to the query "Bail or Jail?"[12*], raised by the Hon'ble Supreme Court of India, which had proceeded to delineate the ambiguity posed by the Code in this regard, in the following words:"is cryptic on the topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process."[13*]
[12* Gudikantu Narasimhulu v. Public Prosecutor, High Court of AP, (1978) 1 Crl LJ 502 (SC).]
[13* Ibid.]
With a further classification of Offences as:i.) Offences with punishment up to Seven years:
ii.) Offences with punishment beyond Seven years
The Amended provision seemed to have remedied the ambiguity prevailing over the provisions pertaining to arrest, in as much as it had the effect of no arrest having been prescribed for offences with punishment up to seven years, while the criteria for effecting arrest for offence with punishment beyond seven years remained unchanged. The amended Section 41, restricted the arrest of the accused for an offence with punishment less the seven years. The same is as follows:"41.When police may arrest without warrant.-
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-
(a) who commits, in the presence of a police officer, a cognizable offence;
(b) 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 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, if the following conditions are satisfied, namely:-
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police office is satisfied that such arrest is necessary-
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
1[Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;
(2) Subject to the provisions of Section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate."
Another safeguard was adopted by way of Section 41(e)[14*], in as much as even if arrest was deemed necessary for an offence with punishment up to seven years, arrest in such like cases could be conducted only after recording the reasons for the same in writing.[14* Section 41(e): as unless such person is arrested, his presence in the Court be ensured whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
[Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest].]
|
Offences with Punishment up to Seven Years |
Offences with Punishment beyond Seven Years |
|
(b)
"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 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, if the following conditions are satisfied, namely: |
"(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence." |
[15* Section 41-A: Notice of appearance before police officer.-(1) 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.]
C. Emergence of Judiciary as a Bastion of Personal Liberty: A Conscious Attempt to ensure Adaption of the New Provisions
The Drafters of the Constitution were conscious of having conceived a Constitution, which was innately a body of various virtues and rights, which were imbibed as the bedrock of the new and independent India. Liberty, being a quintessential part of the Constitution[16*] was best expressed by the eminent lawyer Nani A. Palkhivala, when he said "The Constitution was meant to impart such a momentum to the living principles of the rule of law that democracy and civil liberty may survive in India beyond our own times and in days when our place will know us no more"[17*]. With the hope to keep these values alive even after a turn of century from the adaption of the Constitution of India, it was the Constitutional Courts such as the Hon'ble Supreme Court of India and the Hon'ble High Courts, who were ascribed the role of a watchdog of these rights[18*]. Pertinently, post the Amendment, wherein liberty was reinstated on the elevated pedestal accorded to it, by virtue of refraining arrests in non-bailable offences with punishment less than seven years, there was an advent of Judiciary as a protector of rights[19*], which spurred the adaption or the percolation of the change that the amended provisions were intended to bring.[16* Kharak Singh v. State of U.P., AIR 1963 SC 1295 (1300).]
[17* Jignesh R. Shah, The Wits & Wisdom of Nani A. Palkhivala, Rupa Publications India, New Delhi, 2015.]
[18* Fertilizer Corporation Kamgar Union v Union of India, AIR 1981 SC 344.]
[19* "Role of the Supreme Court in protecting fundamental rights in challenging times", Hon'ble Mr. Justice Dhananjaya Y Chandrachud, Judge, Supreme Court of India, Delivered at the Conference for " NEW CHALLENGES AND SHARED INTEREST BETWEEN INDIA & U.S."]
The newly added provision under Section 41-A, was first brought to life by the Hon'ble Supreme Court of India in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, wherein the court expressed its anxiety qua the humiliation brought upon a person on his arrest, alongside the factum of an indelible scar left on one's state of being. The Hon'ble Supreme, proceeded to elucidate the statutory distinction between the offences with punishment up to seven years and offences with punishment beyond seven years, as provided under Section 41, and it further proceeded to expound the categoric purpose of the provision under Section 41-A, as it observed:"8. From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.P.C.".
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"11. Aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.P.C., the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.P.C. has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid."
A more stern approach was adopted by the Hon'ble Supreme Court of India in Satinder Kumar Antil v. Central Bureau of Investigation, SLP (Crl.) No 5191 of 2021, where it vociferously condemned the conscious lack of compliance by the police authorities of the newly amended provisions. The Court while reiterating the distinction of offences in the two categories, i.e. i.) Offences punishable up to seven years; and ii.) Offences with punishment beyond seven years, held that for the first category no arrest could have been conducted, and proceeded to propound the twin-test theory, as per which for offences with punishment up to seven years, arrest could be conducted only after satisfaction of the following two counts, i.e.A. There should be a reason to be believe that the accused has committed the offence;
B. The police officer should be satisfied that the arrest of the accused is necessary for any of the conditions envisaged under Sec 41(1) a-e.
The aforesaid twin-test theory was delineated upon by the Hon'ble Supreme Court while observing:"21. Section 41 under Chapter V of the Code deals with the arrest of persons. Even for a cognizable offense, an arrest is not mandatory as can be seen from the mandate of this provision. If the officer is satisfied that a person has committed a cognizable offense, punishable with imprisonment for a term which may be less than seven years, or which may extend to the said period, with or without fine, an arrest could only follow when he is satisfied that there is a reason to believe or suspect, that the said person has committed an offense, and there is a necessity for an arrest. Such necessity is drawn to prevent the committing of any further offense, for a proper investigation, and to prevent him/her from either disappearing or tampering with the evidence. He/she can also be arrested to prevent such person from making any inducement, threat, or promise to any person according to the facts, so as to dissuade him from disclosing said facts either to the court or to the police officer. One more ground on which an arrest may be necessary is when his/her presence is required after arrest for production before the Court and the same cannot be assured.
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25. On the scope and objective of Section 41 and 41A, it is obvious that they are facets of Article 21 of the Constitution. We need not elaborate any further, in light of the judgment of this Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273:
7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of section 41 CrPC, 1973.
xxxx
27. Despite the dictum of this Court in Arnesh Kumar (supra), no concrete step has been taken to comply with the mandate of Section 41A of the Code. This Court has clearly interpreted Section 41(1) (b)(i) and (ii) inter alia holding that notwithstanding the existence of a reason to believe qua a police officer, the satisfaction for the need to arrest shall also be present. Thus, sub-clause (1)(b)(i) of Section 41 has to be read along with sub-clause (ii) and therefore both the elements of `reason to believe' and `satisfaction qua an arrest' are mandated and accordingly are to be recorded by the police officer."
Satinder Antil's case, proved to be a sui generis legal precedent, as the court took on its shoulders the task of ensuring the compliance of the provisions. The Special Leave Petition was kept open and Orders were passed in continuum to ensure that not only are the provisions complied, but furthermore, the lack of compliance even resulted in the castigation of a judicial officer and a stark observation regarding the need of his judicial re-training[20*].[20* Satinder Kumar Antil v. Central Bureau of Investigation, SLP (Crl.) No 5191 of 2021, (Order dated 02.05.2023)]
As a consequence of the need for complying with the newly amended and added provisions, having been made writ large by the Hon'ble Supreme Court of India, even in further judgments such as Mohammed Zubair v. State of NCT of Delhi & Ors, WP (Crl.) No. 279 of 2022, wherein the need for the mandatory compliance of the amended Section 41 and 41-A, was reiterated and it was observed that the purpose underlying these amendments is to prevent arrest as a punitive tool. The Hon'ble Supreme Court had proceeded to observe:"28. We once again have occasion to reiterate that the guidelines laid down in Arnesh Kumar (supra) must be followed, without exception. The raison d'etre of the powers of arrest in relation to cognizable offences is laid down in Section 41. Arrest is not meant to be and must not be used as a punitive tool because it results in one of the gravest possible consequences emanating from criminal law: the loss of personal liberty. Individuals must not be punished solely on the basis of allegations, and without a fair trial. When the power to arrest is exercised without application of mind and without due regard to the law, it amounts to an abuse of power. The criminal law and its processes ought not to be instrumentalized as a tool of harassment. Section 41 of the CrPC as well as the safeguards in criminal law exist in recognition of the reality that any criminal proceeding almost inevitably involves the might of the state, with unlimited resources at its disposal, against a lone individual."
Carrying forward, the principles of no arrest to be effected in cases with punishment up to seven years, the Hon'ble Supreme Court in Md. Asfak Alam v. State of Jharkhand, 2023(3) R.C.R. (Criminal) 754, had issued the following directions:"Before parting, the court would direct all the courts ceased of proceedings to strictly follow the law laid down in Arnesh Kumar (supra) and reiterate the directions contained thereunder, as well as other directions: (See Para 12)
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11.3. The police officer- shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
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11.6. Notice of appearance in terms of Section 41A 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;
11.7. 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 the High Court having territorial jurisdiction;
11.8. Authorizing detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court."
The principle seemed to have percolated down, in as much as the Hon'ble High Court of Delhi[21*] was also seen making a proactive attempt, by making an endeavor to frame specific guidelines for mandatory compliance of the terms prescribed by the amended provision under Section 41 CrPC and the newly inserted Section 41-A CrPC. Accordingly, with the opportune turn of events, the judiciary undertook to prevent the travesty that was the non-compliance of the provisions brought in by the Amendment Act, and a new set of wings was provided by the judiciary to the precept of liberty, such that it could soar in the sky.[21* Amandeep Singh Johar v. State of NCT Delhi & Anr., Writ Petition (C) No. 7608 of 2017 vide Order dated 7.2.18 followed by Order dated 28.10.2021 in Contempt Case (C) No. 480 of 2020 & CM Application No. 25054 of 2020.]
D. The Interplay of Section 41 & 41-A with Special Statues
The provisions under Section 41 and 41-A were not intended to have an idiosyncratic applicability only for the offences punishable under the Indian Penal Code. They were adopted by the Legislature for the purposes of remedying the provision of arrest being used as a punitive tool, by ensuring that no arrest could be effected in cases with punishment up to seven years, whether the same were an offence provided under the Indian Penal Code or any other Special Statute. The only exception was the Special Statutes wherein the provisions of the Code, were not applicable, by the virtue of a specific provision. For all other statutes reliance was to be placed upon Section 4[22*] of the Criminal Code, which facilitates the applicability of the Code over the offences punishable under the Indian Penal Code as well as other laws.[22* Section 4: Trial of Offences under the Indian Penal Code and other laws:
(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the lime being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.]
[23* Shruti Bedi, "Bail under Prevention of Money Laundering Act, 2002: A Critical Analysis of Nikesh Tarachand Shah Judgment", in Salamn Khurshid, Siddharth Luthra, Lokendra Malik and Shruti Bedi (eds)., Taking Bail Seriously: The State of Bail Jurisprudence in India, Lexis Nexis, New Delhi.]
The effect of the provisions under Section 41 and 41-A CrPC on PMLA came to be expounded upon by the Hon'ble Supreme Court of India in V. Senthil Balaji v. State Represented by Deputy Director and Others, 2023 SCC OnLine SC 934, wherein it was categorically observed that in terms of the bar on grant of bail as prescribed under Section 45 PMLA, the provisions under Section 41 and 41-A CrPC would not be applicable. The Hon'ble Supreme Court had delineated as follows:"32. Due interpretation of this provision of utmost importance has been given by this Court on more than one occasion [Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 and Satender Kumar Antil v. CBI, (2022) 10 SCC 51]. The Interpretation of this provision, meant to preserve and safeguard the liberty of a person, is taken note of in the afore- stated judgments. This provision cannot be termed as a supplement to Section 19 of the PMLA, 2002. The PMLA, 2002 being a sui generis legislation, has its own mechanism in dealing with arrest in the light of its objectives. The concern of the PMLA, 2002 is to prevent money laundering, make adequate recovery and punish the offender. That is the reason why a comprehensive procedure for summons, searches, and seizures etc., has been clearly stipulated under Chapter V of the PMLA, 2002. An arrest shall only be made after due compliance of the relevant provisions including Section 19 of the PMLA,2002. Therefore, there is absolutely no need to follow and adopt Section 41A of the CrPC, 1973 especially in the teeth of Section 65 of the PMLA, 2002.
33. In the absence of any mandate, one cannot force the Authorized Officer to ensure due compliance of Section 41A of the CrPC, 1973 especially when a clear, different and distinct methodology is available under the PMLA, 2002. Following Section 41A of the CrPC, 1973 for an arrest under the PMLA, 2002 would only defeat and destroy the very inquiry/investigation under the PMLA, 2002. Till summons are issued to a person, he is not expected to be in the know-how. Any prior intimation, other than what is mandated under the PMLA, 1973 might seriously impair the ongoing investigation.
35. In light of the aforesaid discussion, an Authorized Officer under the PMLA, 2002 is not duty bound to follow the rigor of Section 41A of the CrPC, 1973 as against the binding conditions under Section 19 of the PMLA, 2002. The above discussion would lead to the conclusion that inasmuch as there is already an exhaustive procedure contemplated under the PMLA, 2002 containing sufficient safeguards in favour of the person arrested, Section 41A of the CrPC, 1973 has no application at all."
While the bail jurisprudence in Special Statutes barring the applicability of Section 41 and Section 41-A, still continues to lurk in a state of penumbra, there is no denial that both the Legislature as well as the judiciary, have made rigorous efforts which have ensured the restoration of the kernel precept of liberty as provided by the Constitution[24*].[24* Ujwal Kumar Singh, "Democratic Dilemmas: Can Democracy Do without Extraordinary Laws", Economic & Political Weekly, 1 Feburrary 2003.]
E. Conclusion
Even though much is to be done for liberty of an individual to emerge as an inviolable concept, however there has been an advent of a pro-liberty stance by the Legislature as well as the judiciary, post the introduction of the amended version of Section 41 and the newly added Section 41-A. A perusal of the concluding lines of The 21st Law Commission of India's, 268th Report, wherein the "existing system of bail in India" has been pronounced as "inadequate" and "inefficient to accomplish its purpose", would propose that the ray of hope is bleak. However, the provisions under discourse seem to act as a shield from the penumbra surrounding bail jurisprudence, at least in the context of the right of liberty of an accused against whom prosecution has been invoked for an offence with punishment ranging up to seven years. While dilettantes of law might harp on the concept of liberty being regulated by the Indian Bail jurisprudence, being a lost cause, however anyone who has had the opportunity of dealing with the bail provisions while arguing in bail matters, before any court in India, would most impetuously declare himself as a proponent of the belief that these provisions serve as a respite to the lost cause of liberty, and for anyone with such like legal exposure, the words "All is not lost" would serve proper and just for the hope extended by the provisions as they re-instate the rule of `No to Custody & Yes to Liberty'.© Chawla Publications (P) Ltd.