STATE VIGILANCE AND ANTI CORRUPTION BUREAU SHIMLA, HIMACHAL PRADESH CIRCULAR NO. 02/2011 Dated April 29, 2011 Sub: Arrest– Amendments to Code of Criminal Procedure 1973- Need based arrest References: (1) Code of Criminal Procedure (Amendment) Act 2008 (5 of 2009) (2) Code of Criminal Procedure (Amendment) Act 2010 (41 of 2010) (3) Joginder Kumar vs State of UP (1994 AIR 1349) (4) Delhi High Court in Crl. M(M) 3875/2003 in “ Court On Its Own Motion Vs CBI” 1. Through the Criminal Procedure Amendment Acts 2008 and 2010, Section 41 of the Criminal Procedure Code relating to the power of police to arrest without warrant, has been substantially amended. The Amendments intend that the powers of arrest conferred upon the police officer must be exercised after reasonable care and justification. It is noticed that, though the Amendments have come into effect, the investigating officers are not following the new provisions strictly. All officers are directed to familiarize themselves by referring to the amendments and to pay special attention to section 41, 41-A, 41-B, 41-C and 41-D of the amended Act. 2. The major change is that it is now compulsory for the police to record the reasons both for making as well as for not making an arrest on the basis of a complaint or information or reasonable suspicion in respect of a cognizable offence for which the maximum punishment prescribed is 7 years or less. Henceforth, no person can be arrested for a complaint or suspicion of involvement in such an offence without a warrant unless: (a) Such person commits a cognizable offence in the presence of a police officer; or (b) When the cognizable offence is punishable with imprisonment for a term which is less than 7 years or may extend upto 7 years, the police officer has reason to believe that such person has committed the offence and is satisfied that such arrest is necessary, (i) to prevent such person from committing any further offence; or (ii) for proper investigation of the offence; or (iii) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (iv) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case; or (v) to ensure his presence before the court as and when required. 3. In all cases where the arrest of a person is not required under the provisions of sub section (1) of section 41, the police officer shall, issue a notice ( in the form of notice given below ) directing the person to appear before him and to comply with the terms of notice. He/she can be arrested if such person fails to comply with such direction. Form of notice to be issued as per section 41 (A) CrPC Office Address Notice In exercise of the powers conferred under sub section (1) of section 41(A) of CrPC, I hereby inform you that during the investigation of FIR No………………………………..U/s………………………..registered at SV & ACB Police Station………………, it is revealed that there are reasonable grounds to question you to ascertain facts and circumstances from you. Hence you are directed to appear before me at …………………..am/pm on…………..at………………Police Station. Date: Signatures Name and Designation (affix seal) 4. Attention is also invited to judgment dated April 25, 1994 of the Supreme court of India in Joginder Kumar vs State of UP (1994 AIR 1349, 1994 SCC(4) 260, JT 1994(3) 423, 1994 SCALE (2) 662) in which the apex court has held as follows: “No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self esteem of a person. 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 for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to affect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer affecting the arrest that such arrest is necessary and justified. Except in heinous offence, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.” 5. Explaining the legal position on submission of charge sheet in a court of law without arresting the accused during investigation or even producing the accused at the time of submitting charge sheet, the High Court of Delhi in its judgment dated January 28, 2004 in Crl.M(M) 3875/2003 held as follows: “The liberty of a citizen is of paramount importance and a constitutional guarantee and cannot be incised and therefore the police or Investigating Agencies should not remain under the impression that in every cognizable and “non-bailable” offence they should invariably arrest the offender. Power to arrest is altogether different than the need for arrest. Unless a person is required for custodial interrogation and investigation cannot be completed without his arrest, arrest may be necessary. In case investigation can be completed without his arrest and he extends all kind of co-operation, he should not be arrested.” 6. In this judgment the court held that there was no legal requirement to arrest an accused during investigation or even to produce the accused before the court at the time of submitting charge sheet. Directions were also issued to criminal courts stating that “whenever officer-in charge of police station or investigating agency like CBI files a charge sheet without arresting the accused during investigation and does not produce the accused in custody as referred in Section 170 CrPC the Magistrate or the court empowered to take cognizance or try the accused shall accept the charge sheet forthwith and proceed according to the procedure laid down in Section 173 Cr.PC”. 7. In view of the above, all investigating officers and supervisory officers are directed to use the power of arrest judiciously and not mechanically just because a person has been arraigned as an accused. Since the maximum term of imprisonment in most of the vigilance and anti corruption cases is up to 7 years, the investigating officers should record reason(s) for arresting or for not arresting the accused as the case may be in accordance with section 41(1)(b) of the Criminal Procedure Code. In case of any doubt, approval of the supervisory officer may be taken by the investigating officer with regard to his/her own opinion on whether to arrest or not to arrest an accused during investigation of a case. (Sd/-) (Anurag Garg, IPS) Inspector General State Vigilance & Anti Corruption Bureau No. VHQ-H/RB/E(4)/1(CrPC)/11-9126-53 Copy to: 1. PS to Additional Director General, SV & ACB, VHQ, Shimla 2. Inspector General, SV & ACB, VHQ, Shimla 3. JDs(P) I & II, VHQ, Shimla 4. SsP, CR, NR, SR & SIU SV & ACB 5. DAs/Deputy DAs, CR, NR & SR, SV & ACB 6. In-charge PSs, SV & ACB, HP 7. Guard file, Reader Branch, VHQ, Shimla
Posted on: Fri, 06 Sep 2013 02:29:51 +0000