Bombay High Court denies petition by Raj Kundra, held that accused cannot indulge in destruction of evidence after service of notice under Section 41A of CrPC.

A petition was filed in the High Court of Bombay by Counsel for Raj Kundra and his accomplice Ryan Thorpe under Article 227 of the Constitution and under Section 482 of the CrPC, 1973 for release from custody.

The facts of the case are that a notice under Section 41A (1) of Cr.P.C. was served upon the Petitioners and they were called upon to attend the office of the investigating agency but the petitioner refused to accept the notice. After that the petitioners were taken to the office of the investigation agency and later on arrested. Subsequently they were produced before the Additional Chief Metropolitan Magistrate, who remanded them. It was also alleged that the petitioners tried to disturb the investigation by deleting evidence.

The Counsel for the petitioner submitted that in pursuance of the case Joginder Kumar v State of UP, Section 41A was introduced by the Parliament in 2010 and said Section applies where arrest of a persion is not required under Section 41(1). The Counsel argued that notice under Sectoin 41A was never served upon by the petitioner and therefore Section 41A (4) applies and the police needed to have taken orders from the Magistrate before arresting the petitioner.

Further relying on Arnesh Kumar v State of Bihar, the Supreme Court had issued directions wherein the police were obliged to give notice of 2 weeks for appearance in terms of Section 41(A) of the Act.  Moreover in the case of Munawar v State of Madhya Pradesh, the Court released the accused on ad-interim bail for non compliance of the procedure in Section 41 of CrPC.

Mr. Chandrachud, learned counsel appearing for the Petitioner Ryan Thorpe submitted that, his client had accepted notice issued by the police under Section 41A of Cr.P.C. and therefore Section 41A (3) of Cr.P.C. would come in operation. He submitted that, Section 41A (3) of Cr.P.C. requires that such a person cannot be arrested in respect of the offence referred to in the notice, unless for the reasons to be recorded that he ought to be arrested. Without granting an opportunity to the petitioner to comply with the said notice, he has been directly arrested and therefore, his arrest is bad in law. 

The Counsel for the respondent argued that after service of notice under Section 41A of CrPC, it is expected under the law that the accused would cooperate in the process of investigation and not to indulge into destruction of incriminating material/evidence against him/her, which the investigating agency intends to seize or to take it into its custody for the purpose of investigation of a crime.

The Court ruled that the arrest and remand of the petitioner is within law, and that the order passed by the Magistrate does not suffer from any error, therefore, petitions were dismissed.

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