The Code of Criminal Procedure (CrPC) is the main legislation which provides procedures for administrating substantive criminal law in India. CrPC came into force on 1 Apr. 1974 and was enacted in 1973. Since CrPC is a code which provides procedures for the administration of law, it has given ‘Power to Arrest to Police’, and provided a detailed description of under what kind of circumstances and condition police can use this power in Sec. 41 of CrPC. But as time goes misuse of this section increased and it was also violating the right of citizens to live a reputed and dignified life. Therefore in 2010, Section 41A was added to CrPC by the Code of Criminal Procedure (Amendment) Act, 2008, under which the term ‘notice of appearance’ was included. In this blog, Sec.41A of the code shall be discussed in detail.
KEYWORDS: CrPC, Section 41 and 41A, Power to Arrest, Notice of appearance, Warrant
In India crime rate is increasing day by day, in 2023 total number of crimes reported was 445.9 per 100,000 people, and the crime rate has always been high in India therefore in this type of situation instead of following a lengthy process and waiting for the accused to run away police officers have been provided ‘Power to Arrest without warrant’ Section 41 of CrPC. Like fundamental right is not an absolute power, ‘power to arrest without warrant’ is also not an absolute power, in sec 41 there have been some listed circumstances and conditions which police shall follow while arresting someone without warrant. These arrests are mainly done to prevent the accused from committing a crime, to prevent the accused from demolishing the evidence or harming the witness, to investigate the accused of a cognizable offence, when any unlawful possession is found, to prevent the accused from threatening and exciting the witnesses, to make the accused attend the trial on time and many more. This extraordinary power enabled police to act upon their prudent mind but as much as helpful this power is there is a drawback too, people started using it to satisfy their rivalry, they started to forge and came up with accusations which would definitely end the accused person in jail, innocent people were always the target of this chain. Sometimes even police made mistakes and locked up innocent people either because the circumstances made it look like it or they were forged. Fake dowry cases were also a part of it. These cases resulted in the violation of innocent people and infringement of their right to live a dignified and reputed life which is provided in Article 21 of the Constitution of India. Not only this, but these experience also leaves them with trauma which is unforgettable for life. After considering all the above mentioned, the legislature of India added Section 41A in CrPC by the Code of Criminal Procedure (Amendment) Act, 2008 in 2010. According to Section 41A police officer must issue a notice of appearance against the accused when reasonable complaints have been made and it is the duty of the person against whom the notice is issued to appear in front of police and coordinate with the investigation process if the accused fails to comply with it, then the police officers shall take the matter in their hand. Section 41 is still applicable but police officers will have to follow Section 41A and the notice of appearance system. Now let’s discuss this in detail…
SECTION 41 OF CRPC
This section has two clauses, sec 41(1) which has nine sub-clauses and sec 41(2). According to this section, any police officer may arrest without warrant or magistrate order when
A person is concerned with cognizable offence or against whom reasonable complaint is made with credible information and suspicion.
A person has illegal possession of something without any reasonable excuse and when any stolen property is found with them, also there is suspicion of doing the said offence.
A person obstructs the police officer to perform their duty or has been a runaway criminal or attempted to run from lawful custody or is a reasonable suspect of having deserted from the Armed Forces of the Union.
A person who is an ex-convict breaches any rule made under sub-section (5) of section 356. For example, if the released convict changes his address which is mentioned in the record without informing the authority they can be arrested.
Section 41(2) prohibits police officers to arrest without a warrant or magistrate order unless they violate sec. 42 of the code or they are suspected of cognizable offence.
The police should arrest without a warrant only if the above-mentioned condition and circumstances are fulfilled. They should act upon it if they have reasonable suspicion and have received any complaint and information.
In the case of Amarawati v. State of Uttar Pradesh (2005), the hon’ble court held that no police officer is bound to arrest under section 41 (1) of the CrPC because the code have used the word “may” not “shall’ or “must” therefore they are not strictly bound to follow the said power of arrest. It is up to the police officer and their prudent mind.
In the case of Hema Mishra v. State of Uttar Pradesh (2014), Hon’ble Supreme Court laid down that sec. 41(1) of CrPC makes it compulsory for the police officer to record the reason for arrest and even record the reason for not arresting a person in a certain case.
In the case of M.C. Abraham and Another v. State of Maharashtra and Others (2002). The Hon’ble Supreme Court has said that the power of arrest must be used with caution because an arrest leaves a deep impact on a person and can be a cause of trauma, also it infringes the right of privacy of a person and affects the reputation of the person in society.
SECTION 41 A OF CRPC
Section 41 A was inserted in the code by the Code of Criminal Procedure (Amendment) Act, 2008 in 2010, this reform was introduced to prevent unnecessary arrest. Accused have been provided many rights in India under which come the Right to privacy, the right to remain silent and presumed to be innocent protect these rights of accused and protect innocent people from falsely being accused of committing a cognizable offence which would leave them in trauma section 41 of the code was amended and “notice of appearance” was introduced. Now what notice to appearance?
Notice means’ a formal communication targeted to a particular person or group’ and appearance means ‘to appear or to participate’, now combining these and turning them into court language would mean ‘ a formal announcement to the part that they wish them to appear before the court or any place or time mentioned in the notice’.
According to section 41A of the code, the police officer must issue a notice against the accused and further proceed with the investigation. The section states that…
The police officer shall issue a notice of appearance to the person against whom a reasonable complaint has been made, or credible information has been received and police have reasonable suspicion that the said have committed a cognizable offence. The police officer must mention the place the accused have to appear before them in the notice.
It is the duty and responsibility of the person against whom the notice is issued to comply with it.
When the person complies with the notice and appears before the police, they will not be arrested unless the police deem that arrest is necessary in this case, they shall record their reason for doing so.
When such a person doesn’t comply with the notice and refuses to identify themselves, the police with the order of the competent court shall arrest the person for the offence mentioned in the notice.
In the landmark judgement of Arnesh Kumar v. State of Bihar (2014), the honourable supreme court held that the accused of an offence with a punishment of 7yrs or less than 7yrs with or without fine shall not be arrested without a warrant unless the police are satisfied that the person has committed crime mentioned in sec. 41.
In the case of Hema Mishra v. State of U.P. (2014), the honourable Supreme Court laid out that it is compulsory to issue a notice of appearance.
Section 41 and section 41A of CrPC both balance out each other, using sec 41 police officers can arrest the accused without wasting time but it may lead to the arrest of innocent people in certain cases whereas sec. 41A will allow police to think about all the circumstances by providing them more time and issuing a notice of appearance will help the innocent people and enable the accused to protect and access their rights provided in Indian Constitution.