Police must supply copy of Complaint to accused along with notice U/S 41A of CRPC /S 35 of BNSS

Petitioner makes a grievance that a complaint has

been purportedly filed against the Company with the Charkop Police

Station, Mumbai and a copy of the complaint is not handed over to a

representative of the Petitioner.

2. The learned Additional PP submits on instructions, from

the Officer of the said Police Station present in the Court hall, that

the Petitioner never turned up for an inquiry. Yet, a copy of the said

complaint is being handed to the learned Advocate for the Petitioner

in the Court.

3. The learned Advocate confirms the receipt of the

compilation consisting of 24 pages.

4. The learned Advocate for the Petitioner submits that

now the Petitioner would respond to the complaint and would render

co-operation in the preliminary inquiry.

5. We have noticed continuous lapses in series of matters,

when notices are being issued by the police officers to the persons

against whom the complaints have been received calling upon them

to remain present for the purpose of inquiry, without supplying

copies of the complaint. The said notices are frequently issued

without furnishing a copy of the complaint or even by disclosing the

substance, contents or gist of the allegations reported against them by

the complainant. Such persons on the basis of simple notice, are then

required to participate in an inquiry without being informed of the

nature of accusation that he is required to answer and explain.

6. Such practice of non-supplying copy of complaint in our

considered view cannot continue in a system governed by the Rule

of Law. The constitutional guarantee under Article 21, as held by the

Hon’ble Supreme Court of India in Maneka Gandhi vs. Union of

India, (1978) 1 SCC 248, mandates that any procedure which curtails

personal liberty must be just, fair and reasonable. The process which

compels the person to respond to an inquiry without disclosing the

allegations, is manifestly arbitrary and violates these principles.

7. Similarly, the well recognized principle ‘Audi alteram

partem’ imbibed in principles of natural justice, necessarily implies

an effective opportunity of hearing, only when the person concerned

is made aware of the material allegations against him. The inquiry

conducted without disclosing the material or without disclosing the

basic complaint against the person, is a mere formality. Such a

procedure is defective in the very approach of fairness which is

embedded in our constitutional frame work.

8. The protection granted by the constitution under Article

20 Sub Clause (3) is found in the judgment of the Hon’ble Apex

Court in the case of Nandini Satpathy Vs. P.L. Dani, (1978) 2 SCC

424, which states that person concerned has to be made aware of the

nature of allegations and imputations so as to make him informed as

to whether he should respond to any such questions that are posed to

him during inquiry. The person who participates in an inquiry,

without the allegations being disclosed, puts a person in a

disadvantageous position and also makes his vulnerable to action at

the hands of the police authorities.

9. The statutory frame work recognised under the

procedural code, i.e. Cr. P.C. and also the new Act Bharatiya Nagarik

Suraksha Sanhita, 2023 (BNSS), clearly recognize this necessity and

therefore, requires issuance of notice under Section 41 A of Cr. P.C. /

35 (3) of BNSS, only with an intention to secure co-operation and

participation in a fair and transparent manner without subjecting an

individual to an open ended inquiry. In this regard, the safeguards

have been laid down by the Hon’ble Supreme Court in the case of

Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273 and if these

parameters are not fulfilled, then the guidelines laid down will be

rendered nugatory, if the individual is not informed of the basis for

which he is being summoned.

10. In the aforesaid backdrop, we are of the opinion that a practice of issuing notices to the individuals/noticees, asking them to attend the inquiry without furnishing the details of the complaint and/or copy of the complaint, violates the mandate of Article 20 Sub Clause 3 of the Constitution of India and is also contrary to the principles of natural justice.

11. Therefore, in our Writ jurisdiction under Article 226 of

the Constitution of India, we are constrained to issue the following

directions to be complied with by all the police authorities within the

State of Maharashtra :

(i) Whenever any person is so summoned with a direction to

participate in the inquiry, whether prior to registration of FIR or

otherwise, the concerned officer shall, as a general rule, shall furnish

a copy of complaint received by the police, along with said notice.

(ii) In cases where it is not feasible to furnish a copy of the

complaint, the notice shall mandatorily contain or annex a separate

sheet mentioning clear and sufficient gist of the allegations levelled

against the individual so summoned, so as to enable the person to

understand the nature of the inquiry that is being held against him.

(iii) Any deviation from the requirement of furnishing complaint

or its narration in a gist, shall be only in rare and peculiar

circumstances where disclosure would seriously prejudice the ongoing investigation or endanger the safety of the complainant or

witnesses. In such cases, if the police officer is of the said opinion,

the reasons for not disclosing the details of the complaint, shall be

recorded in writing by the officer concerned.

12. We, therefore, direct that the Director General of Police,

State of Maharashtra, to circulate this order to all the Commissioners

of Police and Superintendents of Police, forthwith and to ensure its

due implementation in letters and spirit, so as to protect the

constitutional guarantee to every citizen even though he is accused of

committing an offence.

13. With the aforesaid direction, this Writ Petition is

disposed off.

[HITEN S. VENEGAVKAR, J] [RAVINDRA V. GHUGE, J.]