Section 41A CrPC notice non-compliance justified bail where custody followed complainant's allegation without pre-arrest procedure.

Non-compliance with the statutory notice requirement under Section 41A CrPC was treated as affecting the accused's pre-arrest custody. In an application under Section 439 CrPC arising from allegations under Sections 420 and 408 IPC, the case diary showed that the petitioner was handed over to police by the complainant without service of the required notice. On that factual basis, the Gauhati HC found that the petitioner had been taken into custody without compliance with the prescribed pre-arrest procedure and held that he was entitled to bail.

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Issues: Whether non-compliance with the requirement of notice under Section 41A of the Code of Criminal Procedure, 1973 entitled the accused to bail.

Analysis: The application was moved under Section 439 of the Code of Criminal Procedure, 1973 in a case registered for offences under Sections 420 and 408 of the Indian Penal Code, 1860. The petitioner relied on the absence of notice under Section 41A of the Code of Criminal Procedure, 1973, and the case diary showed that he had been handed over to the police by the complainant without such notice being served. On a perusal of the case diary, the Court found that the petitioner had been taken into custody merely on the complainant's allegation, without compliance with the statutory requirement governing pre-arrest procedure.

Conclusion: The Court held that, for non-compliance with Section 41A of the Code of Criminal Procedure, 1973, the petitioner was entitled to be released on bail.

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