Amended power of police to arrest a person where punishment is up to 7 years

By way of amendments made to the Criminal Procedure Code (Cr.P.C.) in 2009 and 2010, which came into force with effect from 1 November 2010, the powers of the police officers to arrest a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, have been drastically curtailed. It appears that either the police officers are not yet not aware of these curtailed powers or they are deliberately or negligently not complying with the curtailment of the power to arrest in such cases. It is the duty of the police leadership to educate the police officers at the lower levels about the drastically reduced powers of arrest in such offences where the maximum imprisonment can be up to seven years; otherwise an abuse of the powers of arrest can possibly land a police officer in trouble as it happened in a recent case wherein the Supreme Court imposed a fine of ₹ 10 lakh for an illegal arrest that was made in violation of the amended powers of arrest.

As per the aforesaid 2009-2010 amendments to Section 41(1) of the Cr.P.C., now, where a cognizable offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, a police officer can exercise the power to arrest the person accused of such an offence, without an order from a Magistrate and without a warrant, only if the following conditions are satisfied:

(1) the police officer has reason to believe that such person has committed such offence;

(2) the police office 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,

(3) and, the police officer shall record his reasons in writing while making such arrest.

The amended provision also requires that in all such cases (i.e., where the imprisonment for the offence is up to 7 years) where the arrest of a person is not required as mentioned above, the police officer shall also record the reasons in writing for not making the arrest.

Further, as per the newly inserted Section 41-A in Cr.P.C. (which also came into force with effect from 1 November 2010), where the arrest of a person is not required under the above provisions, the police officer shall issue a notice directing the person who is accused of such offence to appear before him or at such other place as may be specified in the notice. Where such a notice is issued to any such accused person, it shall be the duty of that person to comply with the terms of the notice. Where such person complies and continues to comply with such 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. It is also provided that where such person, at any time, fails to comply with the terms of such 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.

Thus, it should now be clear that the police does not get the automatic power to make arrest of the accused person in a case where the maximum punishment can be up to 7 years. Above conditions have to be satisfied first before an arrest could be made by the police officer in such a case without an order from the Magistrate and without warrant. Some common examples of such offences, where the maximum punishment is up to 7 years, are as under in which the power of arrest has been curtailed as above:

• Section 498-A IPC (subjecting a married woman to cruelty).
• Section 363, 365, 369 of IPC (kidnapping / abduction).
• Section 354, 354-A, 354-B, 354-C, 354-D of IPC (outraging the modesty of a woman, sexual assault, voyeurism, stalking, etc.).
• Section 406 or 407 of IPC (criminal breach of trust).
• Section 420 IPC (cheating).
• Section 466 IPC (forgery).
• Section 379, or 380 or 381 of IPC (relating to theft of different types).
• Section 384 or 387 IPC (extortion).
• Section 324 or 325 of IPC (causing hurt, etc.).
• Section 304-A IPC (causing death by rash or negligent act, such as by motor accident).

The above list is only an illustrative list. There are several other similar offences. However, it also needs to be kept in mind that more grievous form of some of the above offences, which may be punishable under other different sections of IPC with maximum permissible punishments of more than 7 years, would not be covered in this list.

Thus, it may be seen that in many of the common offences, such as those listed above, the power of the police to make arrest has been drastically curtailed by the Parliament and has been subjected to conditions mentioned earlier in this article.

Recently, in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, the Supreme Court observed as under:

“Arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it so also the police. There is a battle between the lawmakers and the police and it seems that the police has not learnt its lesson: the lesson implicit and embodied in CrPC. It has not come out of its colonial image despite six decades of Independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasised time and again by the courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.”

While referring to the aforesaid amendments made to the Cr.P.C. with regard to the powers of arrest, the Supreme Court further observed as under:

“We are of the opinion that if the provisions of Section 41 CrPC 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 CrPC for effecting arrest be discouraged and discontinued.” (Emphasis supplied.)

Thus, the Supreme Court has clearly observed that by merely reproducing in the case diary all or most of the reasons required for the arrest as laid down in Cr.P.C. now, the investigating officer should not arrest an accused for such an offence. These directions contained in Cr.P.C. are required to be scrupulously enforced in letter and spirit.

In order to ensure that police officers do not arrest the accused unnecessarily and Magistrates do not authorise detention casually and mechanically, the Supreme Court gave the following directions:

1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 Cr.P.C.;
2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
3. 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;
4. 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;
5. 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;
6. Notice of appearance in terms of Section 41-A Cr.P.C. 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;
7. 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.
8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

However, unfortunately, it appears that the directions contained in the amended provisions of the Cr.P.C. and the above directions of the Supreme Court are not being complied with by police officers. Non-compliance with such directions can have serious implications for the police officers, including criminal action or departmental action. This happened in a recent case.

In the case of Dr. Rini Johar v. State of M.P. [Writ Petition (Criminal) No. 30 of 2015, decided on 3 June 2016], the Supreme Court directed a total compensation of ₹ 10 lakh to two lady petitioners who had been wrongly arrested in case of offences under Section 420 IPC for cheating and under some other provisions of law (read the judgment). The Supreme Court also left it open to the State Government to proceed against erring police officers in this regard who made the wrong arrests.

Therefore, it is desirable that all the State Governments and police officers should urgently take notice of the amended provisions of Cr.P.C. with regard to arrest in offences where the punishment is less than or up to 7 years, and implement them scrupulously.

As the arrest curtails freedom, brings humiliation and casts scars forever, the police officers should exercise their discretion of making arrest in a judicious and careful manner. As observed by the Supreme Court in the above case of Arnesh Kumar, no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from the power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation.