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Sec.41 and Sec.41 A and Sec.57 of Cr.P.C. – No police arrest a person below the 7 years punishment like offence 498 A I.P.C and sec.3 of Dowry prohibition Act etc., – Every police officer must issued a notice under sec.41 A to the accused – failure of which liable for contempt of court before concerned High court – Magistrate also directed to observe the conditions of Sec.41 and 41 A – if arrest is not with in the parameter – release the accused immediately – it not only applies to Marriage offences but also to all offence less than 7 years punishment = ARNESH KUMAR ….. APPELLANT VERSUS STATE OF BIHAR & ANR. …. RESPONDENTS = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41736

Sec.41 and Sec.41 A and Sec.57 of Cr.P.C. – No police arrest a person below the 7 years punishment  like offence 498 A I.P.C and sec.3 of Dowry prohibition Act etc., – Every police officer must issued a notice under sec.41 A to the accused – failure of which liable for contempt of court before concerned High court – Magistrate also directed to observe the conditions of Sec.41 and 41 A – if arrest is not with in the parameter – release the accused immediately – it not only applies to Marriage offences but also to all offence less than 7 years punishment = 

WHEN POLICE CAN ARREST AT THE TIME OF INVESTIGATION

“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)x         x          x         x          x      x

(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)   x x x x x

(ii) the police officer is satisfied that such arrest is necessary –

to prevent such person from committing any further offence; or

for proper investigation of the offence; or

to prevent  such  person  from  causing  the  evidence  of  the  offence  to

disappear or tampering with such evidence in any manner; or

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

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.

X           x           x         x          x           x

From a plain reading of the  aforesaid  provision,  it  is  evident  that  a

person accused of offence punishable with imprisonment for a term which  may

be less than seven years or which may extend to seven years with or  without

fine, cannot be arrested by the police  officer  only  on  its  satisfaction

that such person had committed the offence punishable as aforesaid.   Police

officer before arrest, in such cases has to be further satisfied  that  such

arrest is necessary to prevent  such  person  from  committing  any  further

offence; or for proper investigation of the case; or to prevent the  accused

from causing the evidence of the offence to  disappear;  or  tampering  with

such evidence in any manner; or to  prevent  such  person  from  making  any

inducement, threat or promise to a  witness  so  as  to  dissuade  him  from

disclosing such facts to the Court or the police  officer;  or  unless  such

accused person is arrested, his presence  in  the  court  whenever  required

cannot be ensured.  These are the conclusions, which one may reach based  on

facts.  Law mandates the police officer to state the facts  and  record  the

reasons in writing which led him to come to a conclusion covered by  any  of

the provisions aforesaid, while making such arrest.   Law  further  requires

the police officers to record the reasons in  writing  for  not  making  the

arrest.  In pith and core, the  police  office  before  arrest  must  put  a

question to himself, why arrest?  Is it really required?   What  purpose  it

will serve?  What object it will achieve?  It is only after these  questions

are addressed and one  or  the  other  conditions  as  enumerated  above  is

satisfied, the power of arrest needs  to  be  exercised.   In  fine,  before

arrest first the police officers should have reason to believe on the  basis

of information and material that the  accused  has  committed  the  offence.

Apart from this, the police officer has to be  satisfied  further  that  the

arrest is necessary for one or the more purposes  envisaged  by  sub-clauses

(a) to (e) of clause (1) of Section 41 of Cr.PC.

PRIOR NOTICE WITH OUT ARREST IN LESS THAN 7 YEARS PUNISHMENT CASES

“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.”

            Aforesaid provision makes it clear that in all cases  where  the

arrest of a person is not required under Section 41(1),  Cr.PC,  the  police

officer is required to issue notice directing the accused to  appear  before

him at a specified place and time.  Law obliges such an  accused  to  appear

before the police officer and it further mandates that if  such  an  accused

complies with the terms of notice he  shall  not  be  arrested,  unless  for

reasons to be recorded, the police office is of the opinion that the  arrest

is necessary.  At this stage also, the condition  precedent  for  arrest  as

envisaged under Section 41 Cr.PC has to be complied and shall be subject  to

the same scrutiny by the Magistrate as aforesaid.

IN COURT WHEN PRODUCED FOR JUDICIAL CUSTODY – ROLE OF COURT

 Before  a  Magistrate  authorises

detention under Section 167, Cr.PC, he has to be first  satisfied  that  the

arrest made is legal and in accordance with law and all  the  constitutional

rights of the person arrested is satisfied.  If the arrest effected  by  the

police officer does not satisfy the requirements of Section 41 of the  Code,

Magistrate is duty bound not to authorise his further detention and  release

the accused.  In other  words,  when  an  accused  is  produced  before  the

Magistrate,  the police officer effecting the arrest is required to  furnish

to the Magistrate, the facts, reasons and its  conclusions  for  arrest  and

the Magistrate in turn is to  be  satisfied  that  condition  precedent  for

arrest under Section 41 Cr.PC has been satisfied and it is  only  thereafter

that he will authorise the detention of an accused.  The  Magistrate  before

authorising detention will record its own satisfaction, may be in brief  but

 the said satisfaction must reflect from  its  order.   It  shall  never  be

based upon the ipse dixit of the police officer, for example,  in  case  the

police officer considers the arrest necessary to prevent  such  person  from

committing any further offence or for proper investigation of  the  case  or

for preventing an accused from tampering with evidence or making  inducement

etc., the police officer shall furnish to  the  Magistrate  the  facts,  the

reasons and materials on the basis of which the police officer  had  reached

its conclusion.  Those shall be perused by the Magistrate while  authorising

the detention and only after recording its satisfaction in writing that  the

Magistrate will authorise the detention of the accused.   In  fine,  when  a

suspect is  arrested  and  produced  before  a  Magistrate  for  authorising

detention, the Magistrate has  to  address  the  question  whether  specific

reasons have been recorded for arrest and if so, prima facie  those  reasons

are relevant and secondly a reasonable conclusion could at  all  be  reached

by the police officer that one or the  other  conditions  stated  above  are

attracted.  To  this  limited  extent  the  Magistrate  will  make  judicial

scrutiny.

Conclusion 

We are of the opinion that if  the  provisions  of  Section  41,

Cr.PC which authorises the police officer to arrest an  accused  without  an

order from a Magistrate and without a  warrant  are  scrupulously  enforced,

the wrong committed by the  police  officers  intentionally  or  unwittingly

would be reversed and the number of cases which come to the Court for  grant

of anticipatory bail will substantially reduce.  We would like to  emphasise

that the practice of mechanically reproducing in the case diary all or  most

of the reasons contained  in  Section  41  Cr.PC  for  effecting  arrest  be

discouraged and discontinued.

Our endeavour in this judgment is to ensure  that  police  officers  do  not

arrest accused unnecessarily  and  Magistrate  do  not  authorise  detention

casually and mechanically.  In order to ensure what we have observed  above,

we give the following direction:

All  the  State  Governments  to  instruct  its  police  officers   not   to

automatically arrest  when  a  case  under  Section  498-A  of  the  IPC  is

registered but to satisfy themselves about the necessity  for  arrest  under

the parameters laid down above flowing from Section 41, Cr.PC;

All police officers be provided with a check list containing specified  sub-

clauses under Section 41(1)(b)(ii);

The police officer shall forward the check list duly filed and  furnish  the

reasons   and   materials   which    necessitated    the    arrest,    while

forwarding/producing  the  accused  before  the   Magistrate   for   further

detention;

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;

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;

Notice of appearance in terms of Section 41A  of  Cr.PC  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;

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

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.

We hasten to add that the directions aforesaid shall not only apply  to  the

cases under  Section  498-A  of  the  I.P.C.  or  Section  4  of  the  Dowry

Prohibition Act, the case in hand, but also  such  cases  where  offence  is

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.

We direct that a copy of this  judgment  be  forwarded  to  the  Chief

Secretaries as also the  Director  Generals  of  Police  of  all  the  State

Governments and the Union Territories and the Registrar General of  all  the

High Courts for onward transmission and ensuring its compliance.

By  order  dated  31st  of  October,  2013,  this  Court  had  granted

provisional bail to the appellant on certain conditions. We make this  order

absolute.

In the result, we allow this appeal, making our aforesaid order  dated  31st

October, 2013 absolute; with the directions aforesaid.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41736 -for full text – LAW FOR ALL.

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