Discretionary Power of Arrest Under Section 41A Of The CrPC

The earlier sub-section (1) of Section 41A state that: The police officer may, 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.

The 2010 amendment ensured that a police officer issues such Notice by substituting 'shall' in place of ‘may’ vide section 3(a) of the 2010 amendment Act. The Amendment also enacted a proviso to section 41(1)(b)(ii) providing for recording of reasons for not arresting an accused. The amended section reads as:

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 [(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.

Discretion in Arrest & its Effects:

Discretion is defined as the ability of an authority to choose amongst various available alternatives without reference to any predetermined criterion, no matter how fanciful the choice maybe while the term arrest implies the act of taking into custody of another person under the authority of law for the purpose of holding or detaining him to answer a criminal charge and preventing the commission of an offence. It results into a temporary restraint on the exercise of some of the fundamental rights by the accused.

However apart from legal mechanism concerning the arrest, there is a psychological aspect of the arrest as well. The arrest adversely affects the social life and the future prospects of the person arrested and leads to an irreparable loss of his public image. In this regard, the Delhi High Court in the case of Rakesh Kumar v. Vijayanta Arya (DCP) & Ors has observed that “ It is not only the accused who suffers the humiliation and indignity of being arrested, rather the ordeal affects the reputation of his whole family. No amount of explanation to the neighbours or those who have seen the arrest would undo the embarrassment and the indignity suffered by the accused and his relatives. Arrest and incarceration destroy a person and collaterally affects many other innocent relatives. Subsequent release or acquittal of an innocent is of no solace and offers no reparation to the loss of reputation or for the temporary loss of precious personal liberty. A stigma gets attached to the person who has been taken away, detained and/or put behind bars by the police”.

Therefore, considering the above factors highlighted in the judgement, it becomes imperative for the authorities to be cautious and use utmost prudence while exercising discretionary power of arrest as envisaged under section 41 & 41A of the Code of Criminal Procedure which can be attributed to the terms like reasonable complaint, credible information and reasonable suspicion. These terms open an array of subjective satisfaction of police authorities before proceeding further. Also, it is obligatory for the police officer to record the reasons as per the provisions of sec. 41A (3) which states that: 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.

Steps taken by the Courts:

I. Guidelines issued by the Supreme Court:

Since the issue is of seminal importance, the Hon’ble Supreme Court came up with a set of guidelines in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 to prevent the abuse of discretion and harassment by the police in the cases involving the application of section 41 of CrPC, the guidelines reads as:

(i) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, 1961, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;

(ii) All police officers be provided with a check list containing specified sub-clauses under Section 41(1) (b)(ii) CrPC;

(iii) 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;

(iv) 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;

(v) 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;

(vi) Notice of appearance in terms of Section 41-A 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.

Further the court held that the 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.

II. Guidelines Issued by the High Courts for Removing Procedural Ambiguities:

In April 2018, the Bench comprising the then Acting Chief Justice of Delhi High Court, Justice Gita Mittal in the case of Amandeep Singh Johar v. State of NCT of Delhi & Anr. issued an exhaustive set of guidelines for issuing a notice of appearance before police officers under Section 41A of the Code of Criminal procedure in order to ensure transparency in the system. The guidelines reads as:

1. A suspect/ accused on formally receiving a notice under Section 41A Cr.PC and appearing before the concerned officer for investigation/ interrogation at the police station may request the concerned IO for an acknowledgment.

2. In the event, the suspect / accused is directed to appear at a place other than the police station (as envisaged under Section 41A(1)Cr.PC), the suspect will be at liberty to get the acknowledgment receipt attested by an independent witness if available at the spot in addition to getting the same attested by the concerned investigating officer himself.

3. A duly indexed booklet containing serially numbered notices in duplicate/ carbon copy format should be issued by the SHO of the Police Station to the Investigating Officer. The Notice should necessarily contain the following details: Serial Number Case Number Date and time of appearance Consequences in the event of failure to comply Acknowledgment slip

4. The Investigating Officer shall follow the following procedure – The original is served on the Accused/ Suspect. A carbon copy (on white paper) is retained by the IO in his/ her case diary, which can be shown to the concerned Magistrate as and when required.

5. Used booklets are to be deposited by the IO with the SHO of the Police Station who shall retain the same till the completion of the investigation and submission of the final report under section 173 (2) of the Cr.P.C.

6. The Police department shall frame appropriate rules for the preservation and destruction.

HC Bench has directed that the procedure shall also apply to working of Sections 91, 160 and 175 of the Code of Criminal Procedure. High Court further directed that guideline should be widely publicized to ensure that the general public is apprised of the said procedure.

Also, in similar manner, the Jharkhand High Court through its order in the case of Mahesh Kumar Chaudhry v. The State of Jharkhand has asked the State of Jharkhand to consider framing appropriate guidelines regarding issuance of notice of appearance before police officers under section 41A of Code of Criminal Procedure so that the police may be referred to as the Model Police. Noting that in the instant case, petitioners 1 and 2 have been arrested without following the due process of law, which is trivial in nature, the advent of such guidelines would ensure that the innocent people may not be arrested only due to highhandedness of the police.

III. Recent Trends:

The Allahabad High Court in In Re v. Chandan Kumar, held the investigating officer, guilty of contempt for wilfully bypassing the guidelines laid down by Hon’ble Supreme Court in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 and sentenced him to undergo simple imprisonment for 14 days.

In the instant case, the erring officer in-charge of the police station though served a notice to the accused as per the provision of section 41A however he deliberately recorded in the GD that the accused denied to accept the terms and conditions give in the notice. Further since the accused belonged to the muslim community, he even tried to give a communal colour to the case by stating that the there was an apprehension of communal riot in case of the accused was not arrested. However the court noted that there was no mention of such entry in the GD that there was any such apprehension and the FIR was lodged at the police station only after the intervention by the higher authorities. Thus the court concluded that this was done to somehow arrest the accused by bypassing the guidelines laid down in Arnesh Kumar case.

In similar manner, the hon’ble Delhi High Court in Rakesh Kumar v. Vijayanta Arya (DCP) & Ors. case sentenced a police officer to one day imprisonment for arresting a person by defying the Arnesh Kumar guidelines. The person concerned was accused for criminal breach of trust having maximum punishment of three years, thus in accordance with the provisions laid down under section 41A, he was required to be served with a notice of appearance and the arrest could only be made in exceptional circumstances by duly recording the reasons.

However the court noted that no notice was served to the accused and thus the law was breached. Further the court emphasized on the right to personal liberty granted by the constitution which can only be curtailed by the procedure established by law. The court noted that the procedure enriched under section 41A was clearly breached and the arrest would have its effect on the lives and prospects of the family members of the petitioner as well thereby laying emphasis on the importance of cautious exercise of power of arrest by police officers as it has far reaching impacts.

D. Impact of Not Arresting the Accused:

As discussed above, it is obligatory for the police officer to record reasons based on a preliminary enquiry in case, he proceeds with arrest under section 41A (3) of CrPC for offences with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine. Though this provision on one hand has been instrumental in preventing the unnecessary harassment of the accused in frivolous cases on the name of preliminary enquiry like in the cases pertaining to section 498A of IPC and other related offences. However on the other side there are many instances wherein the relief from arrest granted to accused has led to certain repercussions though the accused may not prima facie appear to harm the victim on being released or temper with the evidence. This has been seen in the cases wherein the police complaints have led to honour crimes against women and the people from the lower strata of the society. Thus it can be inferred that the mechanical interpretation of the provision may not serve the purpose of guaranteeing the safety thereby diminishing the fear instilled in the mind of the victims and the witnesses, however there need to be some deterrence as well.

From the above discussions on various judgements and the bare reading of the provisions, it is established that issuing of a notice in all such cases where arrest is not required to be made under clause (b) of section (1) of the amended section 41 is made compulsory for the police officer to comply with. However, the unwillingness of a person who has not been arrested to identify himself and to whom the notice has been issued under section 41A, could be ground for his arrest. Also the courts have come down with various parameters, warranting arrest of a person which itself is a check on arbitrary arrest and the right to personal liberty guaranteed by article 21 of the Indian constitution.

Also we have seen in the cases where contemners being a member of disciplined force, in exercise of their powers of arrest, have wilfully and deliberately bypassed the mandate of the Supreme Court in Arnesh Kumar which is binding on all the authorities, including, the Magistrate, in view of Article 141 of the Constitution of India. Further it was observed that the directions contained in the Arnesh Kumar’s judgement and the provisions contained in the section 41A of the CrPC were not being properly worked by local police stations and officers but also that the directions contained in the circulars by themselves are wholly insufficient to ensure protection of the rights of the persons who are called for enquiries or are the subject matter of criminal investigations. Thus in order to secure public respect and confidence in the judicial process, it was prerogative for the courts to come up with a lucent set of guidelines and governments shall ensure that effective publicity be given to ensure that the public and the authorities are apprised of the procedure which has to be followed for the compliance of the provisions contained.

Views are personal.

References:

1. https://www.livelaw.in/pdf_upload/16409676872162021-406930.pdf

2. https://www.livelaw.in/news-updates/allahabad-hc-holds-police-officer-guilty-contempt-violating-arnesh-kumar-guidelines-sentences-him-to-14-day-imprisonment-207071

3. https://www.scconline.com/blog/post/2022/08/24/allahabad-high-court-grants-14-

days-imprisonment-to-investigating-officer-for-violating-arnesh-kumar-guidelines-incontempt

4. https://www.mahapolice.gov.in/uploads/other_flash/a77b8921ad1771d44d30f15e57c

d6cef.pdf/

5. https://indiankanoon.org/doc/2982624/

6. https://www.livelaw.in/news-updates/consider-framing-guidelines-for-issuance-of-notice-of-appearance-before-police-officers-us-41a-crpc-jharkhand-hc-to-state-govt-202360

7. https://www.livelaw.in/pdf_upload/in-re-v-shri-chandan-kumar-investigating-officer-allahabad-high-court-431526.pdf

8. https://indiankanoon.org/doc/70230925/