1.      Introduction

2.      Provisions related to arrest of person in the Cr.P.C

3.      Case Law on 41-A

4.      Conclusion


       I.            Introduction

The right to life has been given primary significance by the Indian judiciary under Article 21 of the Constitution. Articles 21 and 22 protect people from arbitrary detention and arrest, as well as the legal system.

Police have been charged over and over for making an unlawful detention with no explanation, and because of this, an average individual, especially from the lower section of society, suffer a great amount since he doesn't know about the law at the hour of arrest and the subsequent reason being that he can't draw in an Attorney soon the arrest is made, due to which the Police utilizing their capacity, abuse people under their power and gets away with it without any problem. However, there are times when someone is falsely accused of a criminal offence for the purpose of harassment.

As a result, in 2010, the legislature enacted section 41A to the Criminal Procedure Code to protect the rights of the accused. A notice has to be issued by the police officer to the person whom against reasonable suspicion has been created to commit a cognizable offence before arresting such person. It has safeguarded this interest in a few instances and limited the leader's power to make useless arrests and confinements. This Article attempts to evaluate Section 41A of the Cr.P.C, 1973 which highlights the pre-arrest requirements and pre- arrest procedures.

    II.            Provisions related to arrest of persons in the Cr.P.C [i]

 As per Section 41 of Cr.P.C. provides that any police officer may without an order from a Magistrate and without a warrant, arrest any person-

a)      A person who commits a cognizable offence in the presence of a police officer

b)      Against whom there is a reasonable suspicion that he or she has committed a cognizable offence punishable by imprisonment for less than seven years or by imprisonment for up to seven years, with or without fine, if certain conditions are met, and the police officer shall also record the reasons for such arrest.

   ‘41A- Notice of appearance before police officer’

1)      The police officer shall in all cases where the arrest of a person is not required under the provisions of sub section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

2)      It is the responsibility of the person who receives such a notification to comply with the provisions of the notice.

3)      If such a person complies and continues to comply with the notice, he will not be arrested for the offence specified in the notice unless the police officers determine, for reasons to be documented, that he should be arrested.

4)      If such individual fails to comply with the provisions of the notice or refuses to identify himself at any time, the police officer may arrest him for the offence specified in the notice, subject to any orders issued by a competent Court in this regard.

It is obvious from the section that if a person who has received a notice of appearance under Section 41-A of the Cr.P.C. has complied with and continues to comply with the notice, he will not be arrested for the offence referred to in the notice. However, if the police officer believes that he should be detained for reasons to be recorded, he may still be arrested.

Simply, if he continues to appear before the investigating officer as required by the notice and complies with his terms, he will not be arrested. Only in extreme situations may such a person be arrested if the police officer writes the reason for his opinion of the necessity of arresting him in writing, and the reasons for such arrest must be documented such as:

1.      To prevent a person from committing any further crime

2.      For proper investigation of the offence

3.      To stop such person from meddling with the evidence

4.      To prevent such person from making any inducement, threat, or promise to any person familiar with the facts of the case in order to prevent him from disclosing such facts to the Court or the police officer, or;

5.      Unless such person is arrested, his presence in the Court when required cannot be guaranteed.


 III.            Case law on 41-A

In the landmark case of Arnesh Kumar v. State of Bihar[ii], the Supreme Court, led by Justice Chandramauli Kr. Prasad and Justice Pinaki Chandra Ghose, carved out the issue of misuse of Section 498-A of the IPC and laid down that no arrest should be made solely on the basis of cognizable and non-cognizable and thus lawful for the police officers.

Facts of the Case:

The marriage between Arnesh Kumar and his wife was not easy one, according to the respondent, who claimed that her husband's family demanded dowry in the form of 8 lakh rupees in cash, a Maruti car, an air conditioner, and a television set. When his wife informed him of the situation, he stood by his family and threatened to marry another lady if the dowry terms were not met. Arnesh Kumar was under arrest under the provision of 498A of the IPC and Section 4 of the Dowry Prohibition Act of 1961, after his wife asserted the contentions of dowry against him. Arnesh rejected the allegations and sought anticipatory bail, but the Sessions and High Courts refused him. The petitioner was granted a Special Leave Petition by the Supreme Court after being denied anticipatory bail.

Judgement of the case:

The statistics released by the Ministry of Home Affairs' National Crime Records Bureau were referred by the Supreme Court. According to the data, over 2 lakh persons were detained in 2012 for the offence under section 498-A of the IPC, with 47,951 of them being women who were the husband's mother and sister. The rate of filing a charge sheet under Section 498-A is 93 percent, yet the conviction rate is as low as 15%, implying that in cases under trial, the majority of cases would be acquitted.

Noting this staggering data, the Supreme Court saw that such abuse of arrest power of a police officer can’t be acceptable. The Apex Court used strong language because it recognized that arrest causes shame, limits opportunities, and leaves scars that last a lifetime. Therefore, Supreme Court provided guidelines and mandatory directions contrary to such practice if the equivalent is done in a motorized and imperceptive method. Referring to figures to show the abuse by the police officers, the Supreme Court continued to set out certain target standards to be applied before arresting in the Criminal Procedure Code.

In its ruling, the Supreme Court emphasized the importance of exercising practicality when using the drastic power of arrest, which has long been used by police personnel as a tool for harassment, oppression, or abuse, and has significantly contributed to police corruption or debasement in India.

The Supreme Court held that no arrest should be made simply because the offence is non-bailable and cognizable. Neither should arrest be made in a tedious, casual and careless way or on a negligible claim of the commission of an offense made against a person. Arrest should just be made after sensible contentment came to after due examination with regards to the validity of the charge.

In addition, the Supreme Court established the conditions under which the Magistrate may approve the accused's detention. According to Article 22(2) of the Constitution and Section 57 of the Criminal Procedure Code, an accused shall be produced before a Magistrate immediately and in no case later than 24 hours, excluding travel time. An accused may be held in custody for more than 24 hours after his arrest if the Magistrate agrees. The Supreme Court stated that when an accused is brought before a Magistrate, the arresting officer must provide the facts, reasons, and conclusions for the arrest to the Magistrate only after being satisfied that the prerequisites of Section 41 of the Cr.P.C. have been met.

Considering the foregoing, the Supreme Court has issued the following directives to all state governments:

·         To direct the police officials to not arrest the accused under Section 498A of the IPC, without sufficient conditions to arrest.

·          The Magistrate will review the police officer's report and may approve detention only after recording the completion of the report as a hard copy.

·         The decision not to arrest the accused must be notified to the Magistrate within two weeks of the case being filed. The Superintendent of Police may decide to extend the time limit for recording motivations in writing.

·         The accused must be served with a notice of appearance under Section 41A Cr.P.C within two weeks or fourteen days of the case being initiated. The Superintendent of Police may contact the equivalent for motivations to be noted in writing.

·         Failure to obey with the guidelines set out above may render police officers/Magistrates responsible for departmental action and proceedings for contempt of court to be organized under the steady gaze of the High Court having territorial jurisdiction.


  IV.            Conclusion:


The Supreme Court attempted to persuade India to shed its colonial image of police in this country. It went on to say that despite efforts to transform the image of police from a weapon of harassment of powerful individuals to a mode of assistance for citizens as public servants, the image persists. It went on to say that the increased power of arrest encourages police corruption. Nowadays, police make arrests first and then consider what would happen next. The police are not the only ones to blame; this power is also an abuse of authority by the Indian judiciary, which allows such arrests to take place without being challenged.

In India, arrests are done at the drop of a hat. As India's arrest rate is high when it is compared to the conviction rate of those arrested, highlighting the need to prevent police personnel in India from abusing their arrest powers. The Supreme Court's recommendations in the Ruling provided some relief from the authorities' automatic approach to authorizing arrests based on inappropriate grounds or mere allegations of a criminal offence. Issuing such notice before arresting a person, will allow the accused to enjoy his fundamental rights and will also curb the police to abuse their authority.

[i] Cr.P.C , 1973

[ii] Arnesh Kumar v. State of Bihar and Anr., AIR 2014 SC 2756





Experience Legal Consultant Dealing In Litigations, Management & Corporate Compliance.