TULSI SUJANANDAN MALAYALI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Learned advocate Mr. Dilip Joshi for the applicant - original complainant has stated that the respondent No. 2 was serving as a Receptionist in a Gym run by the applicant - complainant. The respondent No. 2 siphoned off about Rs.11,58,835.00 which was an amount towards Gym Membership and for that, a written complaint was given to the police for the offence punishable under Ss. 406, 420 and 468 etc. of the Indian Penal Code, 1860 ( IPC ). The police gave a notice under Sec. 41A of the Criminal Procedure Code, 1973 (Code), while the respondent No. 2 preferred not to comply with the notice and rather, had approached learned Additional Sessions Judge, Kachchh at Gandhidham for anticipatory bail, which came to be allowed in Criminal Misc. Application No. 236 of 2023. The learned advocate for the applicant stated that the applicant as a complainant, is challenging the anticipatory bail granted to the respondent No. 2 on the ground that the anticipatory bail order is against the established law and that, though there was an extra-judicial confessional statement made by the respondent No. 2 regarding commission of offence, anticipatory bail came to be granted and the learned advocate for the applicant states that once a notice under Sec. 41A of the Code is issued, the respondent No. 2 was duty bound to comply the same and further states that Sec. 41A of the Code does not permit any arrest by the police without permission of the trial Court. On those grounds, the applicant has prayed for to quash and set aside the anticipatory bail order granted to the respondent No. 2.

(2.) It is required to be noted that the applicant as a complainant, has not made any prayer for cancellation of bail, precisely, the cancellation of anticipatory bail granted to the respondent No. 2. While the ground raised is of non-compliance of the notice under Sec. 41A of the Code. The said Sec. 41A provides for notice of appearance before the police officer and in case, where the police officer considers the arrest of a person is not required under the provisions of sub-sec. (1) of Sec. 41, the police may issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or if 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. Sub-sec. (2) of Sec. 41A of the Code provides for duty of the person to comply the terms of the notice, but, in case the person fails to comply with the notice and the police is of the opinion that he ought to be arrested, then, police, as provided under Sub-sec. (3) of Sec. 41A of the Code can make an arrest. As further provided in Sub-sec. (4) of Sec. 41A of the Code, such arrest would be subject to such orders as may be passed by the competent Court.