Power of arrest by a police officer under Section 41A

Section 41A of the CrPC provides for a notice to appear before the police officer. This section was brought into existence so as to save the accused from unnecessary arrest. The police officer can issue such notice to an accused for him to appear at a specified place against a reasonable complaint.

If the person complies with the notice, then arrest should be prevented. However, the police officer can make an arrest on the basis of his discretion for recorded reasons.

So, what exactly is discretion power while conducting an arrest?

 For that let’s understand discretionary power:

Discretionary power refers to the power or authority given to a person or entity to make decisions or take actions based on their own judgement, without being bound by strict rules or guidelines. It allows them to exercise their own judgement and make decisions based on particular circumstances of a situation.

However, the discretionary power can also be subject to abuse if not properly regulated or monitored.

Whereas arrest is the act of taking a person into custody by a police officer with the intention of detaining them in order to answer for a crime or offence.

 An arrest can result in a temporary restraint on the fundamental rights of the accused. The arrest also has a psychological impact as it adversely affects the social life and future prospects of the person arrested and causes irreparable damage to their public image.

The Delhi High Court has observed that an arrest not only affects the accused but also the reputation of their entire family, and subsequent release or acquittal does not repair the loss of reputation or temporary loss of liberty. Therefore, it is essential for the authorities to exercise caution and prudence while using discretionary power of arrest under sections 41 and 41A of the Code of Criminal Procedure. These sections use terms like reasonable complaint, credible information, and reasonable suspicion, which provide subjective satisfaction to the police authorities before proceeding further. It is also mandatory for the police officer to record the reasons for arrest as per the provisions of section 41A (3), which state that the accused shall not be arrested if they comply with the notice, and the police officer records the reasons for their opinion that the accused ought to be arrested.

The Supreme Court issued guidelines in the case of Arnesh Kumar v. State of Bihar (2014) to prevent police abuse and harassment in cases involving section 41 of CrPC. The guidelines state that state governments should instruct police officers not to automatically arrest individuals in cases involving Section 498-A IPC or Section 4 of the Dowry Prohibition Act, 1961. Police officers should be given a checklist with specified sub-clauses under Section 41(1)(b)(ii) CrPC. The officer must forward the completed checklist with reasons and materials that necessitated the arrest when producing the accused before the Magistrate for further detention. The Magistrate must peruse the report and record their satisfaction before authorising detention. The decision not to arrest an accused must be forwarded to the Magistrate within two weeks from the date of the institution of the case. Notice of appearance in terms of Section 41-A CrPC should be served on the accused within two weeks from the date of institution of the case. Failure to comply with the directions would result in police officers being liable for departmental action and contempt of court. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

In 2018, the Acting Chief Justice of the Delhi High Court, Justice Gita Mittal, issued a comprehensive set of guidelines for issuing a notice of appearance before police officers under Section 41A of the Code of Criminal Procedure, which was aimed at promoting transparency in the system. The guidelines included provisions for the issuance of a serially numbered booklet containing duplicate/carbon copy notices, which should include details such as the date and time of appearance and consequences for non-compliance. The investigating officer was required to follow a specific procedure for serving the notice and retaining records. The Jharkhand High Court also directed the state to consider framing appropriate guidelines to ensure that innocent people are not arrested due to police high-handedness. The High Court ordered the wide publicity of the guidelines to inform the general public of the new procedures.

The amended section 41 of the Criminal Procedure Code (CrPC) mandates that police officers issue a notice to the accused in cases where arrest is not required, but this has led to some negative consequences. While this provision has prevented the unnecessary harassment of accused in frivolous cases, it has also resulted in some cases where accused who may pose a threat to the victim or witnesses have been released. It is therefore important to strike a balance between protecting the rights of the accused and ensuring the safety of victims and witnesses.

The courts have established various parameters that warrant an arrest, which serve as a check on arbitrary arrests and protect the right to personal liberty guaranteed by the Indian constitution. However, there have been instances where police officers have wilfully bypassed these parameters and violated the guidelines laid down by the Supreme Court in the Arnesh Kumar case. In order to ensure public respect and confidence in the judicial process, it is important for the courts to come up with clear guidelines, and for the government to ensure that these guidelines are effectively communicated to the public and authorities.