You Are (Not) Under Arrest
(Critical Note On The Newly Inserted Section 41A of Cr.P.C)
''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.''
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. 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
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 action.
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 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.
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.
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.