Firstly, let it be made clear that the maximum punishment for offence under Section 308 IPC is 7 years, where the same for an offence under Section 307 IPC is life imprisonment or 10 years (depending upon which part of the section is attracted).
Therefore, for the purposes of arrest under Section 41 of the Criminal Procedure Code, clause (b) of Sub-section (1) is attracted for Section 308 IPC, and clause (ba) of Sub-section (1) is attracted for Section 307 IPC.
Since the provisions of Section 41-A of Criminal Procedure Code are applicable to those offences which are covered under clause (b) of Sub-section (1) of Section 41, the same would not be applicable to an offence under Section 307 IPC since for this offence clause (ba) of Sub-section (1) of Section 41 is applicable. In view of this, arrest for an offence under Section 307 IPC can be made irrespective of the notice issued under the provisions of Section 41-A of the Cr.P.C.
In any case, even for an offence which is covered under the provisions of Section 41-A of the Cr.P.C., sub-sections (3) and (4) thereof provide the situations in which a person may be arrested after a notice under this section has been issued to him:
“(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.”
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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