Advocate, Dishain Industry
Code of Criminal Procedure, 1973 (Central Act 2 of 1974) – Section 41–Power of police to arrest without warrant–Police Officer has to record reasons in writing which led him to conclude that the accused is liable to be arrested without warrant–Directions issued to ensure that Police Officer do not arrest the accused unnecessarily and Magistrate do not authorize detention of citizen, casually and mechanically.Petitioner, apprehending arrest in a case under Section 498A of the Penal Code and Section 4 of the Dowry Prohibition Act, 1961, moved for anticipatory bail, which was rejected. He approached the Supreme Court seeking anticipatory bail. The court expressed dismay at the casual manner in which husband and his relatives are arrayed as accused in an indictment under Section 498A and Section 4 of the Dowry Prohibition Act, 1961. Apex Court pointed out that the casual manner in which accused in such cases are arrested and remanded to judicial custody. Emphasizing that the Police and the Magistrates should be more circumspect in arresting the accused without warrant and in committing them to judicial custody, Apex Court issued a series of directions and;Held:Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:(1) All the State Governments to instruct its police officers not to automatically arrest
when a case under Section 498 A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C.;(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);(3) The police officer shall forward the check list duly filed and furnish the reasons
and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for Further detention;(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;(5) The decision not to arrest an accused,
be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;(6) Notice of appearance in terms of Section 41A of Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction;(8) Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498 A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.