The Supreme Court of India issued guidelines and directions regarding arrest, bail and summoning of accused and witnesses in Satender Kumar Antil v. CBI.1 These directions were in light of the multiple special leave petitions being filed pertaining to different offences, particularly on rejection of bail applications.
The Supreme Court passed various directions including that all the State Governments and Union Territories should facilitate Standing Orders for the procedure to be followed under Sections 412 and 41-A3 of the Code of Criminal Procedure, 19734 (CrPC). This direction was passed in consideration of the order dated 7-2-2018 of the High Court of Delhi in Amandeep Singh Johar v. State (NCT of Delhi)5 and Standing Order No. 109 of 20206 (Standing Order) issued by Delhi Police.
Section 41-A CrPC pertains to notice of appearance before police officer where arrest of person is not required. The provision was introduced into the Code by way of the Code of Criminal Procedure (Amendment) Act, 20087. Subsequently by way of the Amendment Act, 20108, the issue of notice under Section 41-A CrPC was made mandatory.
The Supreme Court was of the opinion that guidelines like the Standing Order which provide the procedure for issuance of notices or orders by the police for appearances of accused persons will not only take care of unwarranted arrests but also the clogging of bail applications before various courts. The Standing Order was passed pursuant to the order dated 7-2-2018 in Amandeep Singh Johar case9, which laid down the procedure to be followed by the police in Delhi under Section 41-A CrPC.
As per the order dated 7-2-2018, the following procedure is to be followed by the police and noticees:
(a) Mandatory issuance of notices under Section 41-A CrPC: The police officers are mandatorily required to issue notices under Section 41-A CrPC. Additionally, such a notice is to be formally served in the manner and in accordance with Chapter VI of CrPC. The model form for the notice and acknowledgement have been provided in the Standing Order.
(b) Necessary compliance with the notice: The suspect/witness concerned must necessarily comply with the notice under Section 41-A CrPC and make himself available on the required place and time. In the event the accused is unable to be present for a valid reason, the same should be intimated to the investigating officer (IO) in writing and an alternative time, not exceeding a period of 4 working days, should be fixed. The justification for the rescheduling is to be recorded in the case diary. However, if the IO believes that the accused is resorting to dilatory tactics and being evasive by seeking time, the IO can deny the request for extension and mandatorily require the person to attend.
(c) Acknowledgement of appearance: A suspect or accused complying with the notice under Section 41-A CrPC and appearing before the IO can request for an acknowledgement for the same. In the event the suspect/accused is directed to appear at a place other than the police station then such an acknowledgment is to be attested by an independent witness.
(d) Notices to be issued in triplicate: An indexed booklet containing serially numbered notices in triplicate carbon copy format are to be issued by the SHO to the IO which will contain the serial number, case number, date and time of appearance, consequences of non-appearance and acknowledgement slip. The IO is to serve the original to the accused and retain a carbon copy in the case diary.
(e) Preservation and destruction of booklets: The used booklets are to be deposited with the SHO who will retain them till the completion of investigation and submission of final report. Appropriate rules regarding preservation and destruction of the booklets are to be framed by the Police Department. The Standing Order provides that the used booklets shall be retained with the SHO for 3 years after completion of investigation and submissions of the police report.
The above procedure is to be followed for Sections 9110 (summons to produce document or other thing), 16011 (police officer's power to require attendance of witness) and 17512 CrPC (power to summon persons). The Standing Order also provides the formats relevant for these sections as formulated in the order dated 7-2-2018.
The Standing Order further lays down additional responsibilities of the police and IO while summoning persons. These responsibilities are as follows:
(a) Mandatory presence of the IO: While issuing the notices under the abovementioned sections, the IO must ensure his presence on the given date and time. If due to unforeseen circumstances or official exigencies, he is unable to be present, the Inspector or the SHO shall take the necessary action with respect to the noticee. However, if none of these officers are available, the duty officer will issue the necessary acknowledgement and collect a self-attested ID proof from the noticee.
(b) Utmost care and precaution to be exercised by the IO: The IO must exercise utmost care about the personal safety of the persons summoned. They should also guard against the possibility of such persons attempting to cause injury to themselves or commit suicide.
(c) Interrogation of certain persons: A woman cannot be summoned to the police station for interrogation under Section 160 CrPC. Women must ordinarily be questioned in their place of residence, in the presence of family or women police personnel. Similarly, a male person below the age of 15 years and above the age of 65 years or a mentally or physically disabled person must only be questioned at their residence.
(d) Disciplinary proceedings for failure to comply: Failure on part of the IO to comply with the provisions of CrPC will attract disciplinary proceedings.
(e) Publicity of the Standing Order: The Standing Order is to be posted on the official website of Delhi Police in Hindi and English and be displayed in prominent places in the police stations, courts, legal services authorities, etc.
While there are orders like the DGP Circular dated 12-3-201913 passed by Puducherry Police which also lay down the procedure to be followed under Section 41-A CrPC, it appears that the Supreme Court has laid more impetus on the directions under the Standing Order. It is evident that by way of the Standing Order, Delhi Police has made the procedure of summoning and appearance more transparent and accountable ensuring that the common man is not harassed by the police.
† Partner, C&S Law Chambers. Author can be reached at <firstname.lastname@example.org>.
†† Partner, C&S Law Chambers.
6. Delhi Police, Standing Order No. 109 of 2020, Procedure for Issuance of Notices or Orders by Police Officers, <https://delhipolice.gov.in/Images/HTMLfiles/109a.pdf>.
13. Circular No. 4/DGP/SECY/2019-35 dated 12-3-2019,