YOU ARE (NOT) UNDER ARREST
(Critical Note On The Newly Inserted Section 41A of Cr.P.C)
By
Y. SRINIVASA RAO
M.A (English)., B.Ed., B.L., LL.M (Final),
First Additional Junior Civil Judge,
Bhimavaram
''Changes are always made for the betterment of its subjects, and
they ought to be welcomed by people. Equally true is the thing that
people for whom we are designing the changes should be ready to
understand and accept them.''
INTRODUCTION:
Independent studies indicated that upto 60 per cent of the
arrests made in the country were needless since the detained persons did
not prove to be useful for the purpose of investigation or trial. Amongst
the many concerns, a consistent stand has been the negative image of the
police in the mind of the ordinary citizen. The main reason for this is the
high incidence of arbitrary arrests and custodial abuse — even for minor
offences. More often than not, it is poorer people who are more likely to
be arrested, detained and mistreated, even in the course of routine
investigations. Experience shows that worst violations of human rights
take place during the course of investigation, when the police with a view
to secure evidence or confession often resorts to third degree methods,
including torture, and adopts techniques of screening arrest by either not
recording the arrest or describing the deprivation of liberty merely as a
prolonged interrogation. The amendments are “forward looking and
humane,” which, would ease pressure off the police, courts and jails 1.
Now the parliament amended Cr.P.C making it compulsory for the police
to record the reasons for making an arrest or not arresting an accused
1
http://www.civilservicestimes.com/news-an-indebt/current-national-issues/judicial-reforms.html
IMPACT OF AMENDMENTS
1. Under the new provisions 41-A, the police will not arrest the
accused for crimes that are punishable with less than 7 years. In
stead, the police can issue a notice ‘informing’ them that they
should appear at the police station for investigations.
2. In the report, chief of the commission Justice A R Laxman
clarified that the decision not to arrest the accused is equivalent
to judicial directives. If a police official mis-uses powers, then
he would be liable for contempt of court in addition to the
departmental disciplinary action2.
3. This amendment sounds a death knell on the arbitrariness of
police to make arrests. The very fact that reasons shall have to be
recorded in writing fixes responsibility and makes the Police
Officer accountable for justifying the arrest.
4. By far the most significant amendment is proposed in Section 41 of
the Cr.PC which lays down certain conditions on the police officer
for arresting a person accused of committing a cognisable offence
that carries imprisonment that can be extended up to seven years.
5. Recording an arbitrary reason would be difficult, since it would
need to be substantiated and will also be open to judicial scrutiny.
6. As a matter of fact, to have power to make an arrest is one thing,
but to justify that arrest is something completely different. And it is
precisely this gap which the amendment seeks to bridge.
7. The amendment lays considerable stress on the importance of
investigation before an arrest is made or not made. Which further
means that the officer must be convinced about the bonafides of the
case. A mere complaint would not be enough to exercise the power
of arrest.
8. Insertion of Section 41A, pertaining to issue of Notice of
Appearance, is in line with the Right to Life and Liberty of Indian
citizens. It would also help bring down the number of arrests, which
2
http://www.498a.org/forum/viewtopic.php?f=17&t=5201&view=next
in turn would decongest the crowded Indian jails. Simultaneously,
the innocents too can feel secure in case they stand a chance of
exposure to implication in false cases.
9. The amendment provides that the police officer shall, instead of
arresting the person concerned, issue a notice of appearance, asking
him to cooperate with the police officer in the probe. No arrest will
be made in a non-cognisable offence except under a warrant or
order of a magistrate. The amendment provides that the reasons for
arrest should be sound and recorded in writing by the police officer.
Where such a notice is issued to any person, it shall be the duty of
that person to comply with it and arrest can be made only if the
person fails to do so.
10.System of Administration of Law and Justice would become more
transparent. The amended CrPC Act together with the Right to
Information Act (RTI) would be able to inject necessary checks and
balances in the Process of Administration of Law in India. But
then, a lot depends on how awakened the citizens are to their Right
to Information.
11.It would remove fear from the minds of criminals, who will misuse
the provisions under the garb of personal liberty. But it aims at
ending arbitrary arrests and detention by police. The amendment is
expected to reduce corruption and extortions in police stations and
will also decrease the number of false complaint.
12.Quite often we find that people file cases just to harass the other
party, as a result of which the stature of the legal standards is
declining rapidly. Taking note of this, Government of India has
proposed several amendments to the existing laws.
13. Sometimes, innocent people who may include the juveniles were
also subjected to arrest under the laws of Dowry prohibition. The
new amendment totally curbs this practice. Another positive effect
of the amendment is that there will be no compulsion of advocates
to be present to get the bail.
''Subject to such orders as may have been passed in this behalf by a
competent Court. - What does it mean?''
A careful perusal of these words, I opine that no prior permission of the
court is necessary for making arrest in respect of a cognizable offence for
which the maximum punishment is up to seven years under this provision.
However, 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. The words ''Subject to such orders as may have
been passed in this behalf by a competent Court'' are very essential to
understand the scope of arrest, which means there will be judiciary
scrutiny as to arrest . Where a person fails to comply with the terms of
notice or is unwilling to identify himself, it could be a ground for the
police officer to arrest him for the offence mentioned in the notice. On
careful reading of this provision, it is known that it is bounden duty of
officer officer to give reasons for such arrest. If the competent court
comes to conclusion that the reasons given by the police officer are not
lawful, the police officer has to face the consequences for making such
unlawful arrest.
At this juncture, it is apt to see section 41A(4) of Cr.P.C , (as amended
under the Code of Criminal Procedure (Amendment) Act,2010) , which
reads as follows:
''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.''
Mulling over all these provisions, it is clear that the can be
arrested by the police officer if such person fails to comply with the terms
of the notice or is unwilling to identify himself. Yet, here it is very
important to remember that such arrest should be made subject to such
orders as may have been passed by a competent Court in this behalf. It is
thus no paucity to say that making arrest is more difficult than earlier.
That too, mere fails to comply with terms of the notice is not sufficient
ground to arrest a person and the police officer must record reasons for
such arrest. Such responsibility on police officer will give check for
illegal and unnecessary arrests in future.
CRITICISM:
The new amendments in section 41 of Cr.P.C are being criticized by
some people mostly under the following points:
1.
Criminals will lose the fear of law. The new amendment can be
misused over its discretionary powers to shield the culprits by the
police department as well as politicians and could give a free hand
to scamsters, unscrupulous elements and other offenders without
any fear of being arrested.
2. These changes have multifarious effects on the society. Earlier,
offenders with clout used to easily obtain the bail from court. Now
it won't be possible as the amendment will allow the honest police
officials to carry out their duty and not only catch hold of the
offenders but also to keep them in their clutches.
3. The most negative effect of this amendment is lesser involvement
of courts. Now the whole power has been transferred into the hands
of police authorities and therefore a threat of corruption and having
a sullied image.
On thorough observation of this criticism, I am of opinion
that changes are always made for the betterment of its subjects and for
better society and we should bound to accept the amendment passed by
the parliament inasmuch as we are in democratic country. That too, I
opine that because of these amendments, the system of Administration of
Law and Justice would become more transparent and every one should
strive hard to achieve the object of these amendments without criticizing
them.
CONCLUSION:
These provisions, inter alia, relate to the power of the police to
arrest without warrant. After holding consultations, the Law Commission
recommended further amendment in the provisions of amended section 41
of the aforesaid Act to make it compulsory for the police to record the
reasons for making an arrest as well for not making an arrest in respect of
a cognizable offence for which the maximum punishment is up to seven
years. the newly inserted section 41A of the Code of Criminal Procedure
Act, 1973 (inserted by Act 5 of 2009) and the Code of Criminal Procedure
(Amendment) Act,2010 to make it compulsory for the police to issue a
notice in all such cases where arrest is not required to be made. It was also
suggested that the unwillingness of a person who has not been arrested to
identify himself and to whom a notice has been issued under the aforesaid
section 41A could be a ground for his arrest. However, it should be
subject to judicial scrutiny. It would also help to bring down the number
of arrests, which in turn would decongest the crowded Indian jails.
Simultaneously, the innocents too can feel secure in case they stand a
chance of exposure to implication in false cases. With these few words let
me conclude this article with observation that changes are always made
for the betterment of its subjects and for better society, and hence they
should be welcomed by one and all.