Section 41 of the Code of Criminal Procedure mentions when a police officer can arrest an individual without a warrant as well as without the order of the Magistrate. Also, Section 41A of the Code explains the notice issued by the police personnel to the person directing the person to appear before the former or as mentioned in the notice in cases where there is no necessity of arresting the person.
The supreme court in the matter of: Satender
Kumar Antil vs. Central Bureau of Investigation and Another- had
noted and opined the following:
Section
41 under Chapter V of the Code deals with the arrest of persons. Even for a
cognizable offense, an arrest is not mandatory as can be seen from the mandate
of this provision. If the officer is satisfied that a person has committed a
cognizable offense, punishable with imprisonment for a term which may be less
than seven years, or which may extend to the said period, with or without fine,
an arrest could only follow when he is satisfied that there is a reason to believe
or suspect, that the said person has committed an offense, and there is a
necessity for an arrest. Such necessity is drawn to prevent the committing of
any further offense, for a proper investigation, and to prevent him/her from
either disappearing or tampering with the evidence. He/she can also be arrested
to prevent such person from making any inducement, threat, or promise to any
person according to the facts, so as to dissuade him from disclosing said facts
either to the court or to the police officer. One more ground on which an
arrest may be necessary is when his/her presence is required after arrest for
production before the Court and the same cannot be assured.
This provision mandates the police officer to record his reasons
in writing while making the arrest. Thus, a police officer is duty-bound to
record the reasons for arrest in writing. Similarly, the police officer shall
record reasons when he/she chooses not to arrest. There is no requirement of
the aforesaid procedure when the offense alleged is more than seven years,
among other reasons.
The consequence of non-compliance with Section 41 shall certainly
inure to the benefit of the person suspected of the offense. Resultantly, while
considering the application for enlargement on bail, courts will have to
satisfy themselves on the due compliance of this provision. Any non-compliance
would entitle the accused to a grant of bail.
Section 41A deals with the procedure for appearance before the
police officer who is required to issue a notice to 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,
and arrest is not required under Section 41(1). Section 41B deals with the
procedure of arrest along with mandatory duty on the part of the officer.”
The court also noted
as follows:
On
the scope and objective of Section 41 and 41A, it is obvious that they are
facets of Article 21 of the Constitution. We need not elaborate any further, in
light of the judgment of this Court in Arnesh Kumar v. State
of Bihar, (2014) 8 SCC 273:
From a plain reading of the aforesaid provision, it is evident
that a person accused of an offence punishable with imprisonment for a term which
may be less than seven years or which may extend to seven years with or without
fine, cannot be arrested by the police officer only on his satisfaction that
such person had committed the offence punishable as aforesaid. A police officer
before arrest, in such cases has to be further satisfied that such arrest is
necessary to prevent such person from committing any further offence; or for
proper investigation of the case; or to prevent the accused from causing the
evidence of the offence to disappear; or tampering with such evidence in any
manner; or to prevent such person from making any inducement, threat or promise
to a witness so as to dissuade him from disclosing such facts to the court or
the police officer; or unless such accused person is arrested, his presence in
the court whenever required cannot be ensured. These are the conclusions, which
one may reach based on facts.
The law mandates the police officer to state the facts and record
the reasons in writing which led him to come to a conclusion covered by any of
the provisions aforesaid, while making such arrest. The law further requires
the police officers to record the reasons in writing for not making the arrest.
In pith and core, the police officer before arrest must put a
question to himself, why arrest? Is it really required? What purpose it will
serve? What object it will achieve? It is only after these questions are
addressed and one or the other conditions as enumerated above is satisfied, the
power of arrest needs to be exercised. In fine, before arrest first the police
officers should have reason to believe on the basis of information and material
that the accused has committed the offence. Apart from this, the police officer
has to be satisfied further that the arrest is necessary for one or the more
purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.
An accused arrested without warrant by the police has the
constitutional right under Article 22(2) of the Constitution of India and
Section 57 CrPC to be produced before the Magistrate without unnecessary delay
and in no circumstances beyond 24 hours excluding the time necessary for the
journey:
During the course of investigation of a case, an accused can be
kept in detention beyond a period of 24 hours only when it is authorised by the
Magistrate in exercise of power under Section 167 CrPC. The power to authorise
detention is a very solemn function. It affects the liberty and freedom of
citizens and needs to be exercised with great care and caution. Our experience
tells us that it is not exercised with the seriousness it deserves. In many of
the cases, detention is authorised in a routine, casual and cavalier manner.
Before a Magistrate authorises detention under Section 167 CrPC,
he has to be first satisfied that the arrest made is legal and in accordance
with law and all the constitutional rights of the person arrested are
satisfied. If the arrest effected by the police officer does not satisfy the
requirements of Section 41 of the Code, Magistrate is duty-bound not to
authorise his further detention and release the accused. In other words, when
an accused is produced before the Magistrate, the police officer effecting the
arrest is required to furnish to the Magistrate, the facts, reasons and its
conclusions for arrest and the Magistrate in turn is to be satisfied that the
condition precedent for arrest under Section 41 CrPC has been satisfied and it
is only thereafter that he will authorise the detention of an accused.
The Magistrate before authorising detention will record his own
satisfaction, may be in brief but the said satisfaction must reflect from his
order. It shall never be based upon the ipse dixit of the police officer, for
example, in case the police officer considers the arrest necessary to prevent
such person from committing any further offence or for proper investigation of
the case or for preventing an accused from tampering with evidence or making
inducement, etc. the police officer shall furnish to the Magistrate the facts,
the reasons and materials on the basis of which the police officer had reached
its conclusion. Those shall be perused by the Magistrate while authorising the
detention and only after recording his satisfaction in writing that the
Magistrate will authorise the detention of the accused.
In fine, when a suspect is arrested and produced before a
Magistrate for authorising detention, the Magistrate has to address the
question whether specific reasons have been recorded for arrest and if so,
prima facie those reasons are relevant, and secondly, a reasonable conclusion
could at all be reached by the police officer that one or the other conditions
stated above are attracted. To this limited extent the Magistrate will make
judicial scrutiny.
The aforesaid provision makes it clear that in all cases where the
arrest of a person is not required under Section 41(1) CrPC, the police officer
is required to issue notice directing the accused to appear before him at a
specified place and time. Law obliges such an accused to appear before the
police officer and it further mandates that if such an accused complies with
the terms of notice he shall not be arrested, unless for reasons to be
recorded, the police officer is of the opinion that the arrest is necessary. At
this stage also, the condition precedent for arrest as envisaged under Section
41 CrPC has to be complied and shall be subject to the same scrutiny by the
Magistrate as aforesaid.
We are of the opinion that if the provisions of Section 41 CrPC
which authorises the police officer to arrest an accused without an order from
a Magistrate and without a warrant are scrupulously enforced, the wrong
committed by the police officers intentionally or unwittingly would be reversed
and the number of cases which come to the Court for grant of anticipatory bail
will substantially reduce. We would like to emphasise that the practice of
mechanically reproducing in the case diary all or most of the reasons contained
in Section 41 CrPC for effecting arrest be discourage and discontinued.
Our endeavour in this judgment is to ensure that police officers
do not arrest the accused unnecessarily and Magistrate do not authorise
detention casually and mechanically. In order to ensure what we have observed
above, we give the following directions:
All the State Governments to instruct its police officers not to
automatically arrest when a case under Section 498-A IPC is registered but to
satisfy themselves about the necessity for arrest under the parameters laid
down above flowing from Section 41 Cr.P.C
All police officers be provided with a check list containing
specified sub-clauses under Section 41(1)(b)(ii).
The police officer shall forward the check list duly filled and
furnish the reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for further detention.
The Magistrate while authorising 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 authorise detention.
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.
Notice of appearance in terms of Section 41A CrPC 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.
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 the High Court having territorial jurisdiction.
Authorising detention without recording reasons as aforesaid by
the Judicial Magistrate concerned shall be liable for departmental action by
the appropriate High Court.
Directions aforesaid shall not only apply to the cases under
Section 498A IPC or Section 4 of the Dowry Prohibition Act, the case in hand,
but also such cases where 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.
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