This post is being written with reference to the case of Amit Mavi v. State. The issue in question is presumption of a person fleeing from justice when notice under Section 41A is issued after a person has left the country.

Section 41A reads as follows:

          “(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.”

On reading the provision in its entirety, it is understood that Section 41A applies only to those persons who cannot be arrested as per Section 41. Section 41A was inserted after the 2008 Amendment Act in order to provide a remedy to accused persons who may have been falsely implicated. Hence, Section 41A prevents a direct arrest and merely asks a person to appear before the police. If a person makes himself available for investigation, then it is not necessary to mandatorily arrest that person.

This specific amendment received more heed in applicability after the case of Arnesh Kumar v. State of Bihar (2014). According to this case, a rule for arrest was laid down saying that no arrest shall be made just because an offence is cognizable and non-bailable. A thorough mentioning of reasons behind an arrest is extremely necessary to be complied with. It was clearly stated that the “Power to Arrest” is to be tied with “Justification to Arrest”. Where there aren’t sufficient reasons to justify an arrest, appearance under Section 41A should be sufficient.

On applying the above analogy to the present case of Amit Mavi v. State, it is convenient to arrive at the conclusion that because Section 41A is implemented in order to provide a certain level of protection to the accused, one cannot be complained of fleeing from justice when he has left the country before the serving of notice. It was not necessary for a person to know that subsequently he is going to be served with a notice under 41A because Section 41A clearly applies only to those who cannot be mandatorily arrested under Section 41.