Report No. 154
Do you agree with the suggestion that section 49 should be amended by insertion of a proviso as stated below:
"Provided no accused shall be handcuffed or put on other fetters by the police or prison authority while transporting or in transit from one jail to another or from jail to court and back, except where an accused is likely to jump bail or breakout of the custody on the basis of well founded ground lading to the said inference in which circumstances such accused shall be produced before the Magistrate and a prayer for permission to handcuff or put fetter upon the accused shall be made before the Magistrate.
Such Magistrate in rare cases of concrete proof regarding proneness of the accused to violence, his tendency to escape, he being so dangerous/desperate and upon the finding that no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff or put fetter upon the accused. Provided further that in cases where the person arrested by Police, if produced before the Magistrate and remand judicial or non-judicial if given by the Magistrate the person concerned shall not be handcuffed unless special orders in that respect are obtained from the Magistrate at the time of grant of the remand:
Provided further when the police arrest a person in execution of a warrant of arrest obtained from a Magistrate, the person is arrested shall not be handcuffed unless the police has obtained orders from the Magistrate for the handcuffing of the person to be so arrested:
Provided further that where a person is arrested by the police without warrant the police officer concerned may, if he is satisfied on the basis of the principle set out above, that if necessary to handcuff such a person he may do so till the time he is taken to the police station or thereafter his production before the Magistrate. Any further use of fetter thereafter can only be under the order of the Magistrate as stated above.
Any official belonging to the police or the prison, found violating shall be liable to the penal consequences as provided under the law."
(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?