Introduction
Law commission, Police commission, and the apex court emphasized the need to maintain a balance between individual liberty and social order while arresting someone. With arrest there comes humiliation, curbs freedom, and marks scars that may remain forever.
Sometimes the power to arrest leads to ignorance and arrogance and the failure of the magistracy to rectify it. It’s widely used as a tool to oppress and harass people mentally and physically. Nowadays the power to arrest is considered one of the lucrative sources of Police corruption.
Observing a case the apex court said, no arrest to be made on mere allegation and because the offense is cognizable and non-bailable, as it defeats the objectivity of those provisions. Rather, Police officers must be able to justify the arrest.
What changed the course of the nature of arrest without a warrant?
The answer to this question lies behind a landmark case, Arnesh Kumar vs. State of Bihar
The appellant/husband in fear of arrest applied for anticipatory bail under charges 498A of Indian Penal Code, 1860 and Section 4 of The Dowry Prohibition Act, 1961 which was rejected by lower courts and the same was appealed before the apex court.
It was alleged by the respondent/wife that the demand of Rupees eight lakhs, Maruti car, air-conditioner, television set, etc. was made by mother-in-law and father-in-law. When the matter was brought to the notice of the appellant, he threatened to marry another woman.
It has been alleged that upon non-fulfillment of the demand of dowry, respondent/wife was forced to leave her matrimonial house.
On the other hand, the husband denied all allegations made against him by her wife as incorrect.
Observation of SC
Justice C.K. Prasad and Pinaki Chandra Ghose pointed out a few remarks that made this verdict a landmark judgment for the courts while granting bail if procedures are not followed by the Police Officers or Magistrates.
The court held that our endeavor in this judgment is to ensure that police officers do not arrest the accused unnecessarily and the Magistrate does not authorize detention casually and mechanically.
After observing the facts and circumstances of the case, the court added a few directions into Section 41 of Cr.P.C. The Section states the procedures needed to be followed when offenses are cognizable and non-bailable.
Guidelines to follow before arresting without warrant
The Court said, to ensure what we have observed above, we give the following direction:
(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498 A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above following from Section 41, Cr.P.C.;
(2) All police officers be provided with a checklist containing specified sub-clauses under Section 41(1)(b)(ii);
(3) The police officer shall forward the checklist duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
(4) The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;
(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
(6) Notice of appearance in terms of Section 41A of Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction;
(8) Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498 A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
Powers of Police Officer to arrest without warrant
Section 41 of CrPC lays down procedures where police may arrest a person without a warrant.
Section 41 of Cr.P.C. says -
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person
(a) who commits, in the presence of a police officer, a cognizable offence
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:
(ii) the police officer is satisfied that such arrest is necessary -
(a) to prevent such person from committing any further offense; or
(b) for proper investigation of the offense; or
(c) to prevent such person from causing the evidence of the offense to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this subsection (1), record the reasons in writing for not making the arrest.
Section 41A, an alternative to arrest without warrant
Section 41A of CrPC aimed to avoid unnecessary arrest as mentioned in sub-section (1) of Section 41. Section 41A was added by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009). However, recently after the enactment of this Amendment, representations were received by the Union Government.
41A. Notice of appearance before a police officer.-
(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of Sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a 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.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.
Conclusion
Earlier arrest u/s 41 without a warrant, authorized upon a mere allegation of cognizable and non-bailable offence. Also upon the discretion of the Police personal and magistracy in a casual manner.
The observation in a case, Arnesh Kumar vs. State of Bihar by the apex court, which led to set up a few guidelines to be followed by Police officers. Few important guidelines are as follows.-
(i) the police officer must go through the checklist specified under Section 41(1)(b)(ii) of CrPC and specify the reasons necessitated to arrest while producing the accused before the magistrate.
(ii) the magistrate while authorizing the detention of the accused must go through the report furnished by the police personnel and only after recording his satisfaction to report, the magistrate will authorize the detention.
3. The aforesaid direction shall apply to all such cases where the offence is punishable with imprisonment for a term less than seven years or equivalent to seven years; with or without fine.
4. If police officers officer fails to implement the aforesaid directions; shall be liable for departmental action and shall also be liable for contempt of court to be invoked before HC having territorial jurisdiction.
5, The magistrate while authorizing detention without recording reasons of his satisfaction; shall be liable for departmental action by the appropriate HC.
Article by - Ayushman Sagar Jha
B.A.L.L.B 3rd Year,
DYPLC
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