SECTION 41A THE CODE OF CRIMINAL PROCEDURE- CRITICAL ANALYSIS
Author: Divyanshu Bansal
Co-Author: Pratik Kumar
Jindal Global Law School
Right to life as under article 21 of the Indian Constitution has been bestowed a paramount and supreme status by the judiciary. Article 21 and 22 provide protection against arbitrary detention and arrest and the judiciary from time to time in a number of cases has safeguarded this interest and limited the power of the executive to make unnecessary arrest and detention. Police has been accused again and again for making an unlawful arrest without any justification and due to this a common man specially from lower strata of society has to suffer more of this because he/she is not aware of the law at the time of arrest and the second reason being that he/she is unable to engage a lawyer soon the arrest is made, because of which the police using their power, exploit people under their custody and gets away with it easily. This paper tries to make an analysis of judicial pronouncements with regard to the executive’s power to arrest. This paper analyses the amendment made in the year 2008 in the Code of Criminal Procedure 1973 through which Article 41A was inserted. This paper tries to seek an analysis of Section 41A of the Code of Criminal Procedure.
Section 41A was inserted The Code of Criminal Procedure (Amendment) Bill, 2008. Justice C.K. Prasad had indeed expressed clearly the need for a provision that limits the power of the police to arrest in the Arnesh Kumar judgment –
“..this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make an arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that 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.”
Through these words, we can clearly understand the similar reasoning behind the amendment and the addition of Section 41A. The Section was added to help prevent arrests.
As per, Section 41-A of the CRPC, if a police officer is of the opinion that an arrest isn’t of necessity then it would be legally prudent to issue a notice which directs a person against whom a reasonable complaint has been made and wherein a reasonable suspicion continues to persist, directing the accused in question to appear before the officer or at any place specified by notice. It is the legal duty of the person against whom the notice has been directed to comply with the notice and as long as he continues to comply with the conditions of the notice, he shall not be arrested and wherein he fails to do so, he is liable to be arrested depending upon orders passed by a competent court.
The discretionary power of the police is almost unlimited as they have unlimited powers especially upon the view of clause (3) of Section 41A which records that the Police can make arrests despite compliance from the accused. One must question whether this in defiance of the legislative intent of the provision.
A line of argumentation can be developed which focuses on a possible dichotomy between arrests made under Section 41 and 41A. Section 41A is invoked only after, the police using their discretion decides that arrest of the suspected person or persons is not required. This is to say that, the police have taken into consideration all of the conditions mentioned under Section 41 (1), before sending the suspected person a notice as per Section 41A. Also, the High Court of Orissa held that this means, the cases, which are covered by Section 41(1), have been excluded from the purview of Section 41-A. Hence, it is probably to argue that the nature of arrests under the two sections is different. And this would mean that the guidelines and the procedure established in subsequent judgments such as Arnesh Kumar and Joginder Kumar are limited to arrests made under Section 41 and subsequently cannot be applied to arrests made under Section 41A.
This dichotomy, if proven to be valid can open the floodgates and the section can be potentially harmful to the interests of the accused who are in fact, the ones the section is sworn to protect. To understand this, let’s look at a hypothetical scenario where firstly, an investigating police officer wants to arrest an accused on whom he has no reasonable grounds to arrest. In order to ensure the arrest of the person, he could take the help of Section 41A. According to subsection (3) of 41A, if the police have reasons to think the person has not complied with the conditions of the notice, then he can be arrested by the police officers. The immediate discretion to decide if the person has complied with the terms of the notice is on the police or the investigating officer and this is indeed problematic and even dangerous.
Now if we comprehend a situation where, the accused’s arrest is mandated under Section 41 (1) and the conditions and grounds for arrest as specified in section 41 are fulfilled, even then Section 41A can create a loophole helping the police. For instance, the most problematic discretionary power that the police possesses with regards to section 41A is the power to decide for the application of the section itself. It is in the hands of the police itself to decide if the conditions in section 41 were met or not in order to raise a reasonable ground for the application of section 41A. It could give rise to instances where the police apply Section 41A and send a notice of appearance instead of directly arresting the person. The reasons for such an action could be numerous. Primarily it could be done to avoid procedures laid down in Arnesh Kumar with regards to arrests made by the police without the issuance of an order. The procedure established is to be followed mandatorily and Section 41A allows the police to escape these procedures and simply arrest arbitrarily. The section also adds a reason for the police to arrest a suspected person – arrest for non-compliance with the terms of the notice and hence thereby increasing the powers of arrest.
Also as the section gives discretion to the police which can be grossly abused by the already corrupt police force. In one case, the police may require the appearance of the accused person through notice, while in a similar case another identically situated person to arrest. Thus, there is every likelihood that the police will misuse this provision for ulterior reasons.
Another problematic aspect of the section is that under the section the police can order the suspected person to appear before the officer at “such other place as specified in the notice”. This would mean that the person could be ordered to visit any place where the police would require him and not just the police station.
Hence, it is important to note that the provision of section 41-A has been exploited by the police. 41-A has solely vested its powers upon the police thereby leaving room for it to be exploited. The genuineness of the documents which are produced by the police to highlight non-cooperation on part of the accused with investigating agencies or to show that they didn’t appear when summoned must also be questioned. It isn’t beyond the real to assume that some notices are actually created subsequently after arrests are made to show that notices were issued on past dates. The scope for this provision to be despotic is extremely large and that it has actually been proven that this provision has simply been used by the police to harass accused individuals, as seen in the case of Amandeep Singh Johar. It was never the intention of the legislature to allow for innocent individuals to be harassed by the police and it is extremely kept that in mind while evaluating the use of the provision of 41-A by the police
Now in order to tackle these rising malpractices through an amendment, the legislature established a stringent procedure to be followed while the issuance of a notice under section 41A. However, the judgment and the procedure are problematic in their own respect. An important case for the evaluation of Sec 41-A is that of Amandeep Singh Johar vs State Of NCT of Delhi.The petitioner, in this case, put forward that despite compliance before the authorities, an FIR came to be registered against him under Sec 498A & 406 of the IPC. He also highlighted how he was often summoned to appear before the police station, in several instances no written notice was present which is a necessary condition under Sec 41-A. He alleged both that the guidelines of Sec 41-A did not comply and that these weren’t enough to ensure the protection of those who were called as subjects of criminal investigations. The important guidelines as laid down by the Amandeep Singh Johar case included permitting rescheduling of the meeting if it isn’t detrimental to the police and also reasonable. It also stressed the importance of complying with the provisions of Section 41-A with respect to the issuance of a notice by the Police. However, what is also of note is that the judgment as laid down by the court also provided a way for the investigating officer to lay down conditions other than those mentioned by the court which necessarily had to be complied with, the failure of which would make an individual liable to be arrested per Sec 41-A(3). It is pertinent to think of the possibility wherein a police officer lays down conditions that are repressive towards the accused, which would’ve never been the intention of the legislature to subject the accused to such conduct. Recent judgments that have mentioned the guidelines have not established a clear review of the procedure given in Amandeep judgment but have labeled the procedure to be “stringently and mandatorily applied”.
Section 41-A does possess the capability of turning despotic and not being helpful to the members of civil society. This is not to say the intention of the lawmakers was not positive, rather it is based on the conduct of those who are trusted to execute the provisions laid down by the law. It is now an option in a sense almost for the police to arrest or not arrest an individual and the exceptions as laid down have been misapplied by the police during the entire process of arresting an individual. Hence, the section is a Janus-faced provision whereby, on the surface, it has been enacted in order to help the accused avoid arbitrary arrest but in an application and practice it helps in achieving the exact opposite – it expands the authoritative power of the police to arrest.
Arnesh Kumar v State of Bihar (2014) 8 S.C.C 273.
Monoj Kumar Dash v. Republic of India and Ors. MANU/OR/0291/2016.
Joginder Kumar vs State Of U.P (1994) SCC (4) 260.
Amandeep Singh Johar vs. State of NCT of Delhi MANU/DE/1518/2018.
State v Tr. Nakeeran Gopal MANU/TN/0110/2019.