S.41 CrPC | Arrest Should Not Be Made Merely Because It's Lawful, Police Officer Must Justify It Apart From His Power To Do So: Delhi High Court

The Delhi High Court has observed that no arrest should be made merely for the reason that that it is lawful, thereby adding that the police officer has to justify the arrest apart from his power to do so.

Referring to the Supreme Court judgment in Satendar Kumar v. CBI which has discussed compliances of sec. 41 and 41A of the Code of Criminal Procedure, 1943, Justice Anu Malhotra was of the view that the said provisions have to be adhered to by the Investigating Agency in the event the police officer considers it essential to arrest the accused persons.

"It is essential to observe that the said provisions come into play at the time of arrest of a person and the requirement of calling upon a person to appear before the police officer on his having credible information or where there is a reasonable suspicion of that person having committed a cognizable offence," the Court said.

It added, "This is so as no arrest should be made because it is lawful for the police officer to do so as the police officer has to justify to the arrest apart from his power to do so as laid down in Siddharam Satlingappa Mhetre (supra)."

The Court made the observations while dealing with the anticipatory bail pleas filed by two individuals, husband wife duo, who were denied the same on the grounds that there was a recovery of an alleged amount of Rs.80 Lakhs of gold jewellery and Rs.30 Lakhs in cash which was to be recovered from them.

The complainant, whose late husband ran a jewellery shop, alleged that the petitioners along with another individual had entered into a deep rooted conspiracy and had cheated her, with fraudulent and dishonest intentions, for a cumulative sum of more than Rs. 1,35,00,000.

It was submitted on behalf of the petitioners that there was nothing on the record to substantiate the averments made in the FIR and that they were being falsely implicated.

It was also submitted that the offences allegedly committed by them were punishable with sentences below seven years and thus, in terms of the verdict of the Supreme Court, they were entitled to be released on bail and ought not to be incarcerated.

Perusing the status reports filed by the State, the Court noted that State allege categorically to the effect that the custodial interrogation of the petitioners is required for the recovery of cash and gold jewellery both together amounting to approximately Rs.1.10 Crores.

The Court also noted that there were statements of witnesses recorded i.e. of women who had given their articles of jewellery to one of the petitioners which were categorical in relation to the gold jewellery worth Rs.80 Lakhs and Rs.30 Lakhs in cash.

Accordingly, the Court rejected the anticipatory bail pleas of the petitioners.

"However, in the event of any arrest being made of the applicants, the Investigation Officer shall ensure adherence to the provisions of Section 41(1) and 41A of the Cr.P.C., 1973," the Court ordered.

Case Title: NEELAM CHAUHAN v. THE STATE GOVT. OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 747

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