Decided on June 15,2018

Pratik Agarwal Appellant
STATE OF ASSAM Respondents


Rumi Kumari Phukan, J. - (1.) The accused petitioner, Pratik Agarwal was arrested on 21.03.2017, in connection with Jalukbari P.S. Case No. 257/2017 u/s 120B/420/406 IPC and a bail application was preferred before this Court which was registered as BA No. 311/2017 and this Court by an order dated 27.03.2017, granted him bail. At the time of preferring the bail petition, the learned counsel for the petitioner has submitted that in fact the accused preferred an anticipatory bail application in connection with Jalukbari P.S. Case no. 216/2017 u/s 406/420 IPC and he was granted interim bail by the order of the Court below on 17.03.2017 with a direction to the petitioner to appear before the I.O. Accordingly, on 21.03.2017 at 11 a.m, the accused petitioner went to the Jalukbari P.S. as per direction of the Court then on the same day at about 2.00 p.m. the petitioner was arrested in connection with the Jalukbari P.S. Case No. 257/18 without serving any notice u/s 41A of Cr.P.C. It has been assailed that the conduct of the I.O. is not justifiable because FIR was filed on the same day when the petitioner went to the Police Station in connection with Jalukbari P.S. Case No. 216/2017.
(2.) The learned counsel for the petitioner, Mr. G. N. Sahewalla referring to the direction of the Hon'ble Supreme Court in Arnesh Kumar Vs. State of Bihar & Anr., 2014 8 SCC 273, it has been vehemently contended that the Police Officer cannot arrest a person without serving prior notice to him under Section 41A Cr.P.C. in an offence punishable up to 7 years. It has been pointed out that notice of appearance in terms of the Section 41A Cr.P.C. is to be served on the accused within 2 weeks from the date of institution of the case, which may be extended by the S.P. of the district for reasons to be recorded in writing. The aforesaid provision has not been complied with by the I.O. while arresting the accused petitioner rendering the Police Officer liable for violation of the mandate of the Arnesh Kumar .
(3.) This Court on verification of the documents found the submission of the petitioner is true that on the very day of filing of the FIR in Jalukbari P.S. Case No. 257/17, the accused petitioner was arrested while according to the learned counsel for the petitioner that the accused petitioner went to the Police Station to avail the interim bail as granted to him in connection with the Jalukbari P.S. Case No. 216/17. It is discernible from the FIR of Jalukbari P.S. Case No. 257/17 was filed on 21.03.2017 at 2.00 p.m. and the accused was also arrested on the same very day. The accusation made in the said FIR is exactly same to the FIR pertaining to Jalukbari P.S. Case No. 216/2017, wherein it has been alleged that the accused person who is the owner of M/s Pratik Intracomm Pvt. Ltd. along with his mother, Sarita Agarwal by entering into an agreement with the informant concerned took an amount of Rs. 35,00,000/- for providing flat to the informant in the year 2014 but the no such flat was delivered, so the allegation of cheating has been raised against the petitioner.;

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