Report No. 154
8. Insertion of new sub-sections 1A, 1B in section 41
The Law Commission in its 152nd Report on "Custodial Crimes" observed that there is a misconception prevailing that if there is a power to arrest the same must be exercised without fail and suggested certain changes in section 41. Likewise the Supreme Court also observed in Joginder Singh v. State of Punjab, IT (1994) 3 SC 423. Do you agree that as recommended by the Law Commission and observed by the Supreme Court that two new sub-sections 1A and 1B should be inserted after sub-section 1 in section 41 of the Code of Criminal Procedure?
"41(1A). A police officer arresting a person under clause (a) of sub-section (1) of this section must be reasonably satisfied, and must record such satisfaction, relating to the following matters:
(a) the complaint, information or suspicion referred to in that clause, is not only in respect of a cognizable offence having been committed, but also in respect of the complicity of the person to be arrested, in that offence;
(b) arrest is necessary in order to bring the movements of the person to be arrested under restraint, so as to inspire a sense of security in the public or to prevent the person to be arrested from evading the process of the law or to prevent him from committing similar offences or from indulging in violent behaviour in general."
"41(1B) (1) The police officer may, instead of arresting the person concerned, issue to him a notice of appearance requiring him to appear before the police officer issuing the notice or at such other place as may be specified in the notice and to co-operate with the police officer in the investigation of the offence referred to, in clause (a) of sub-section (1) of section 41.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of that notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice, it shall be lawful for the police officer to arrest him for the offence mentioned in the notice, subject to such orders as may have been passed in this behalf by a competent court."
Do you consider the aforesaid proposed amendment is adequate to avoid frequent and unnecessary arrests? If not, what modification do you wish to suggest indicating the reasons therefor?