Section 41A- An Antithetical Disposition

  • Avishek Mehrotra & Renuka Mishra

INTRODUCTION

An arrest is the curtailment of liberty of an individual. The police being the bearer of the power to arrest must exercise it rationally and reasonably. The extraordinary discretionary powers vested in the police in matters of arrest were leading to substantial misuse of such powers. The same was acknowledged in the report of the National Police Commission (Pg 4, ¶ 3), as per which, most of the arrest conducted by the police was unjustified.  In order to curb such rampant misuse of powers of arrest, the 177th Law Commission report also accentuated an urgent need for curtailment of such powers. With this perspective, section 41A was incorporated by the Code of Criminal Procedure (Amendment) Act, 2008. However, the provision has proved to be harmful to the interest of the accused, whom it sought to protect. Instead of alleviating the power to arrest, it has been an addition to the armoury for the police officials. This antithetical nature of the incorporated provision is what the authors will primarily focus upon during this article.

WHAT IS SECTION 41A OF Cr. P.C.?

According to Section 41 A of the Code of Criminal Procedure (hereinafter, ‘Cr. P.C.’) if a police officer requires the attendance of any person who is not to be necessarily arrested under Section 41(1) or “against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence”, the officer can issue a notice for the same. The person to whom the notice is served is obliged to appear at the stipulated place and time. The person complying with the notice shall not be arrested unless otherwise deemed fit by the police officer for which the officer is duty-bound to record reasons in writing. Failure to comply with the notice is a ground for arrest. 

PREDICAMENTS UNDERLYING SECTION 41A

The said provision mandates the issuance of notice to the accused where the arrest of the person is not required as per section 41(1). There are, however, two anomalies which surface herein. Firstly, the legislative text of section 41(1) itself gives discretion to the police officer in matters of arrest, as is evident from the use of the word ‘may’ in the provision. Hence it is open for the police officer to determine whether a particular matter falls within the ambit of section 41(1) or 41A. Therefore, the provision which was incorporated to limit the power of arrest vested to police under 41(1) has left it upon the police officer himself to decide the applicability of the same. Thus, if the police officer deems the matter to be fit for arrest under section 41(1), he can still do so with no regards to the provisions of section 41A.

Secondly, the use of subjective terms in the provision such as “reasonable complaint”, “credible information”, “reasonable suspicion” opens room for abuse of such powers and leaving enormous scope for the police to exercise their discretion. Further, 41A(3) provides the police with an opportunity to arrest a person even after compliance with the notice if the police officer opines that the arrest is necessary. Also, the immediate discretion to decide compliance with the notice is vested in the police. This provision particularly increases the ambit provided to the police officers to arrest without a warrant – extending it to crimes which do not fall under the confines of section 41(1). The existing anomalies have not restrained themselves to legislative provisions, there have been numerous instances where misuse of the power vested under Section 41A has been alleged or proven.

In Tanuja Roy v. State of Assam and Ors., an FIR under section 420 and 406 being lodged against the petitioner, three policemen from the Dispur Police Station forcefully took her to the police station at 1:00 am despite resistance from the petitioner. She was detained arbitrarily, for long hours without being provided with any reason, subsequent to which notice was served to her under section 41A. The course of action adopted by the police in the present case was clearly unjustified. The Court came down heavily upon the Police Officials while holding their actions to be in contravention of section 46(4) [¶ 28] of the Cr. P.C. and not in line with what section 41A stipulates (¶ 22). In order to obviate the power under Section 41A of CrPC, the investigating agency may manipulate (¶ 6) the FIR. Even though the manipulation of FIR was not proven in the instant case, such activity is not entirely unprecedented (¶ 14). 

Several High Courts have labelled the procedures to be ‘stringently and mandatorily applied’ rather than leaving the same at the discretion of the police. The Apex Court also emphasized the need for maintaining a balance between individual liberty and upholding societal order. The misuse of the provision has been taken note of in the case of Amandeep Singh Johar v State of NCT of Delhi wherein an FIR was registered against the accused despite compliance with the notice. The Court in the said case laid down guidelines regarding the content of notice and procedure to be followed after its service. However, 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 as per Sec 41A (3) [¶ 15 (refer clause j)]. Thus, the problem remains unaddressed.

The Hon’ble Supreme by taking cognizance of the importance of liberty of an individual be it an accused or convicted in the landmark judgments of Jogindar Kumar and D.K. Basu laid down the guidelines to be followed while arresting an individual under Sec 41 of Cr. P.C. However, there exists a dichotomy in the nature of arrest under that of section 41 and 41 A of Cr. P.C. as these guidelines do not apply to arrests made under section 41A. Given the sorry state of affairs in the exercise of power by the police under Sec 41A, there is a pressing need to extend the applicability of these guidelines to police officers exercising discretion under Section 41A. 

SUGGESTIONS/RECOMMENDATIONS

Given the existing anomalies in the impugned provision, there is ardent need for limiting the discretion vested in the police. The authors would like to humbly put forth some suggestions in light of the aforementioned predicaments:

  1. Objectivity – There is a lack of legislative or judicial guidelines demarcating the situations where notice must be issued and where the arrest is necessary. Further vesting the discretion upon the police through the use of subjective words like “reasonable complaint”, “credible information”, “reasonable suspicion” leaves scope for misuse and must be done away with.
  2. Accountability of police – There should be an agency to keep a check on the working of the police and investigate complaints against police officials to curb the ongoing misuse of powers by the officers. 

3. Adherence to D.K. Basu and Joginder Kumar – Even in matters of arrest under section 41A, guidelines laid down in these judgments must be complied with.

The authors are 3rd Year Students of Symbiosis Law School, Pune.

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