The Parliament passed Criminal Procedure Code (CrPC) amendment Bill,2008 in its last session and gave country an omnibus law. The Amendment seeks to amend section 41 of the CrPC of 1973 and added some commendable safeguards to it.
WHAT IS THE EXISTING LAW WITH RESPECT TO ARRESTS U/S 41-
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 has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or
(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonable suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 365; or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition
(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of person specified in section 109 or section 110
In fact, this is the section which provides ample scope to the police to misuse of
power to make arrests. Even the Police Commission has said that about 60% of the arrests made by the police are unnecessary and could be avoided. Such arrests not only infringes upon the fundamental rights of the citizen as enshrined in the Constitutions of India but also increases burden on Jails. According to an estimate such arrests increases the burden on jails up to 43%. Thus such arrests are not only creating legal but causing administrative inconvenience also. It is in this backdrop, The National Law commission in its 177th report had suggested certain changes in the provisions related to powers of arrests. This amendment has not only incorporated these suggestions but also has taken care of the detailed guidelines of Hon'ble Supreme Court given in the famous D.K.Basu vs State of West Bengal case.
WHAT WOULD BE THE SITUATION NOW?
Now, the Police cannot make arrest in an alleged offence for which minimum stipulated punishment is less than seven years and that too not merely on suspicion. Arrests can only be made on reasonable complaint and credible information. This amendment is likely to stop or at least check 'the Happy arrests' or 'whimsical arrests' by the Policemen. The police can use procedure to serve notice to the suspects to appear before it instead of outright arrests.
IS THIS SUFFICIENT TO STOP MISUSE OF POWER OR SOMETHING ELSE SHOULD BE DONE
It is not sufficient. In fact in normal alleged crime or suspicion of alleged crime, the accused should be heard and be given sufficient time to prove him or herself before arrests.Once the person gets arrested, his or her image gets tarnished no matter after few days he is released on bail or even acquitted. The arrest should be made only the person is not cooperating in the investigation or is likely to escape from the country.
