NO CHANGE IN THE METHOD ADOPTED BY THE POLICE IN ARRESTING PERSONS FOR OFFENCES PUNISHABLE UP TO 7 YEARS AND BELOW IN SPITE OF AMENDMENTS TO SECTION 41 OF THE CRIMINAL PROCEDURE CODE, 1973

NO CHANGE IN THE METHOD ADOPTED BY THE POLICE IN ARRESTING PERSONS FOR OFFENCES PUNISHABLE UP TO 7 YEARS AND BELOW IN SPITE OF AMENDMENTS TO SECTION 41 OF THE CRIMINAL PROCEDURE CODE, 1973

By:- Aabad Ponda, Advocate Bombay High Court, practicing on the criminal side

The power of arrest by the Police is one of the most misused provisions since times immemorial. The monstrous abuse of the powers of the Police are not unknown but the abuse of power is even more damaging when it relates to the power of arrest. The Supreme Court of India has minced no words way back in 1994 when it pronounced the famous Joginder Kumar's case  and quoted The National Police Commission in its Third Report that the power of arrest is one of the chief sources of corruption amongst the Police. The National Police Commission in its Third Report referring to the quality of arrests by the police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails. The said Commission in its Third Report at p. 31 observed thus:

"It is obvious that a major portion of the arrests were connected with very minor prosecutions and cannot, therefore, be regarded as quite necessary from the point of view of crime prevention. Continued detention in jail of the persons so arrested has also meant avoidable expenditure on their maintenance. In the above period it was estimated that 43.2 per cent of the expenditure in the connected jails was over such prisoners only who in the ultimate analysis need not have been arrested at all."

   This judgment of Joginder Kumar supra was delivered in 1994 and it took the legislature more than 15 years to amend the Criminal Procedure Code, 1973 with respect to the power of arrest by amending Section 41 of the Criminal Procedure Code on 01/11/2010. Section 41 (1) (b) states as under:-

"41. When police may arrest without warrant .- (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:-

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary- (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence 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 so as to dissuade him from disclosing such facts to the Court or to 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 sub-section, record the reasons in writing for not making the arrest.]"

 emphasis supplied

Further Section 41A of the Criminal Procedure Code has been also incorporated in the statute books from 01/11/2010. The same reads as under:-

" 41A. Notice of appearance before 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.”

 emphasis supplied

The object of these amendments was to prevent indiscriminate arrests from taking place particularly in offences where the punishment was up to 7 years imprisonment or below. The whole purpose of such a classification was to divide offences based upon a 7 year period serving as a benchmark. To prevent indiscriminate arrests in such matters these provisions were incorporated in order to curtail the powers of the Police. In practice however nothing seems to have seriously changed. The reason is simple. The provisions are limited by exceptions like if proper investigation of the offence cannot be done without immediate arrest or if the investigating officer feels that such person may tamper with evidence or influence a witness then all that the officer is required to do is to make such a note and give some reasons and then can effect arrest immediately so we go back to square one viz. as the position existed prior to the amendment.

The words proper investigation are capable of an extremely wide interpretation with no checks and balances on its misuse. The word proper is capable of the laxity of semantics and has the widest possible meaning which can be extended to the ipsi dixey of the investigating officer, the subjective satisfaction of which cannot be easily questioned. Similarly the ability to predict the possibility of tampering by an accused, has been given to the investigating officer, who is bestowed with astrological capabilities of predicting the future thoughts in the minds of accused and giving a verdict as he deems fit about such tampering of evidence or influencing of witnesses without hearing anyone or any evidence even being there to support his view. In effect the net result is that any officer can simply endorse some reasons that for proper investigation or to prevent evidence from being tampered with, the arrest of an individual is necessary and is required, is sufficient for him to misuse his power of arrest virtually setting to naught the avowed object of the amendment and its effect with one stroke of his pen or better still in today's day and age can do so with a click of the button of his computer and HEY PRESTO the liberty of someone can get curtailed!!!

This is a very serious legislative flaw by keeping the power of arrest so amenable to misuse by the laxity of semantics and wide connotation being permitted to be given to situations mentioned above. Apart from this though Section 41A of the Criminal Procedure Code, 1973 has been added, no form of any notice has been prescribed to correspondingly give effect to the said provision. Mere reference to a notice and not prescribing any format for such a notice is something which needs to be addressed to at the earliest since all over the country there is no uniform practice as to how the provisions of Section 41A of the Criminal Procedure Code is required to be given effect to. This further gives rise to misuse of power.           

Though in the case of gross and extreme cases the supreme court and the High Courts have awarded compensation for non compliance of Section 41(i) (b) and Section 41A of the Criminal Procedure Code, 1973, every common man cannot have access to these superior courts and even if they do the damage sometimes is so severe that they prefer to stay away from courts. In the net result, the undisputed position which emerges is that till the police are pulled up with strong evidence by the superior courts, they continue to misuse the exceptions to Section 41(i) (b) and successfully defeat the intention of the legislature behind the amendment only because with one hand the amendment is incorporated in the statute books and with the other it is easily taken away by simple resort to recording of reasons on aspects like proper investigation being needed, which is something which is totally capable of misuse.

There is thus a need to look into the day to day functioning of the police with respect to offences punishable with imprisonment which may extend to 7 years and below and gauge for oneself whether there is compliance in only letter or in both letter and spirit which is the essential requirement of law touching upon a sensitive subject relating to the freedom of individuals and its curtailment.