Section 41A CrPC versus Section 160 CrPC

Section 160, Chapter XII CrPC (now Section 179 BNSS) empowers the police officer to require the appearance before the court of any person who appears to be acquainted with the facts and circumstances of the case. When such an order is issued by the investigating officer, the person on whom the order is served is bound to appear.

Although the marginal heading of the section contains the phrase “Power of police officer to determine the presence of Witnesses‘ in the section the wording ‘every person acquainted with the facts and circumstances of the case”. The question that frequently arises before courts is whether an accused can also be summoned by an IO under Section 160 CrPC/179 BNSS for the purpose of investigation. Moreover, what is the scope of Section 41A CrPC/35(3) BNSS for the examination of such an accused?

Although the word ‘investigate’ is used in Section 160 CrPC/179 BNSS, notices for ‘interrogation’ are also often served on accused under this section. Such investigation and interrogation of accused is necessary in order to a) direct the investigation in the right direction, b) confront the accused with the evidence against him and record his possible defence, c) when facts particularly within the knowledge of the accused need to be ascertained, d) discover material facts and secure incriminating evidence.

A panel of three judges in State Representative by Police Inspector and others. vs. NMT Joy Immaculate2004 INSC 334, which dealt with a completely different topic, adopted an obiter,

“22. Section 160 of the Code of Criminal Procedure deals with the authority of the police officer, require the presence of witnesses. This section is intended to ensure the presence of persons who will provide the necessary information to commit an offence and who will be examined as witnesses at the relevant investigation or trial. This section applies only to cases of persons who appear to be familiar with the circumstances of the case, that is,. the witnesses or potential witnesses only. No order can be made under this section requiring the appearance of an accused to answer the charge against him. Since an accused cannot be examined as a witness either for or against himself, he cannot be included in the class of persons referred to in this section …………….24. In our opinion, the High Court has committed a serious error in giving such an order contrary to the statutory provisions pursuant to Section 160 of the Code of Criminal Procedure, which only applies to witnesses and not to defendants“.

The accused has been exempted from the stringent provisions of Section 160 CrPC and as per this judgment, no notice under Section 160 CrPC can be served on the accused. This aspect of the judgment has been followed in VT Lazar and others. vs. the Inspector of Police, Poonamallee Police Station, Crl. OP No. 14796 of 2022.

In the author’s opinion, this statement Immaculate Joy is merely an obiter intended to tie the hands of the investigating authority unnecessarily and does not represent the ratio decidendi of the matter. In addition, the judgment in NMT Joy Immaculate suffers from judicial inadequacy as it does not take into account another judgment of a three-judge panel in Nandini Satpathy v. Dani (PL), 1978 2 SCC 424, in which it was recorded:

“We are of the view that ‘any person who is supposed to be acquainted with the facts and circumstances of the case’ also includes an accused who assumes that role because the police assume that he committed the crime and, therefore, must be acquainted with the facts. The assumption may later turn out to be a fiction but that does not disprove the section. Even the marginal note ‘interrogation of witnesses by police’ does not decide the matter. A marginal note removes ambiguity but does not determine the meaning. Moreover, in the assumption, the accused functionally appears as a witness. ‘To be a witness’, from a functional point of view, means to impart knowledge in relation to a relevant fact and that is precisely the purpose of interrogating the accused under S. 161, Cr.PC. The dichotomy between ‘witnesses’ and ‘accused’, as used as technical terms, does not apply here…To assume otherwise is to stop the investigative work, since the questioning of suspects is desirable for solving crimes and even for the protection of the accused.”

Thus, it is clear that a notice under Section 160 CrPC (which uses the phrase ‘any person’) can be addressed either to the accused (whether named in the FIR or not), the suspect or the witness.

This view has been adopted by several High Courts. The Hon’ble High Court of Madras in Pulavar BM Senguttuvan vs. The State, 2004 C riLJ 558ruled that the accused can be served with a notice under Section 160 CrPC. A similar issue arose before the High Court of Andhra Pradesh in Devagupthapu Hara Venkata Surya Satynarayana Murthy Vs. The State of Andhra Pradesh and Ors, 2023 CriLJ 1037 wherein the plaintiff/defendant contended that after serving summons under Section 41A CrPC, the accused could not subsequently receive summons under Section 160 CrPC. The Supreme Court held that NMT Joy Immaculate does not represent the correct legal position in respect of Section 160 CrPC as the finding in respect of Section 160 CrPC was not in accordance with the majority opinion.

The appellant cannot, therefore, seek to challenge notices passed under Section 160 Cr.PC on the ground that no such notice can be served on an accused under Section 160(1) Cr.PC.

Interaction between 41A CrPC and Section 160 CrPC

In an interesting submission before the Supreme Court of Punjab and Haryana in the case Harmandeep Singh v. State of Punjab and Ors, CRM-M-34203-2021, it was argued that if the accused is to be summoned for examination, he should be summoned only under Section 41A CrPC and not under 160 CrPC. The applicant further stated that if an accused is summoned under Section 160 CrPC, there is an imminent risk of his being arrested even if he complies with the summons (see possibly Sutapa Adhikari & Ors v. State of West Bengal and Anr, CRR 2464 of 2022)However, a notice under section 41A will only be issued if a police officer has concluded that the arrest of the complainant is not necessary. Moreover, the accused cannot be arrested while he complies with that notice. [section 41A(3)].

Although the High Court in Harmandeep Singh v. State of Punjab Without going into the interplay between the notifications under Sections 41A CrPC and 160 CrPC, the petition was dismissed. However, in the author’s view, this issue requires some clarification.

It is undoubtedly true that an accused (whether named in the FIR or not) can be summoned for questioning/examination during an ongoing investigation by issuing notice to him either under Section 41A CrPC or Section 160 CrPC. However, the stringency, scope and purpose of these two sections are qualitatively different.

In complex cases with numerous transactions and facts twisting like a spider web, it is difficult for the IO to determine whether arrest of the accused is necessary until some investigation is carried out. If at this stage, investigation of the accused is deemed necessary, a notice under Section 160 CrPC is issued. Once evidence is collected showing an obvious offence against the accused, it has to be decided whether arrest of the accused is necessary or not. If arrest is not necessary, a notice under Section 41A CrPC may be issued to the accused for further investigation (Arnesh Kumar v. State of Bihar, 2014 8 SCC 273)

A notice under Section 160 can be issued to a person within the jurisdiction of a police station or an adjoining police station, but there is no such jurisdictional restriction under Section 41A CrPC. Moreover, Section 160 CrPC prohibits the police officer from demanding the presence of certain categories of persons at the police station, such as women, children below 15 years of age, men above 65 years of age and mentally/physically challenged persons. However, such restriction finds no place under Section 41A CrPC. (It is important to mention that Section 179 BNSS, which corresponds to Section 160 CrPC, has, among other things, introduced a new category of persons suffering from acute diseases).

Recently, the Supreme Court in Arvind Kejriwal v. Central Bureau of Investigation 2024 INSC 687 has clarified that Section 41A CrPC in no way prescribes a blanket prohibition on the arrest of any person.

Personal liberty is sacrosanct and jealously guarded. Section 41A CrPC and 160 CrPC have several safeguards in place to prevent violation of fundamental rights under Article 20(3) of the Constitution. While safeguarding the rights of the accused, the rights of the victim and the duty of the law enforcement agencies must not be lost sight of. The police must retain the right to summon the accused/suspect and question him to unravel the offence. However, while doing so, the police must also be aware of the extent of the powers conferred under Section 41A CrPC or Section 160 CrPC and must not infringe the same.

The author is a deputy prosecutor at the Central Investigation Bureau. The views expressed are personal opinions.