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Report No. 152

5.18. Power of arrest: Recommendations.-

We now come to the major question as to the direction in which the power of arrest conferred on the police, in regard to cognizable offences needs to be amended in order to reduce the possibility of misuse of the power. Section 41(1)(a) of the Code of Criminal Procedure, 1973 which contains the material reads as under:-

"41(1) Any police officer may, without an order from the Magistrate and from the Magistrate and without a warrant, arrest any person-

(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned."

A misconception seems to prevail that if there is a power to arrest, then that power must be exercised. The judicial decisions to which we have referred in the relevant paragraphs of this Chapter1 take pains to point out that this is not the legal position. The power is subject to the ordinary principles of administrative law. Justification for its exercise must be shown to exist in each case.

What the law requires, is not merely the requisite quality of complaint, information or suspicion about the commission of a cognizable offence, but also the satisfaction of a further condition, that shows the complicity of the person to be arrested, in the suspected offence. All these propositions are implicit in the scheme of section 44, particularly when the section is viewed against the background of the general law, including administrative law and rules of statutory interpretation.

Thus, the fact that there is a discretion and not a duty, is sufficiently indicated by the word "may". The fact that complicity of the particular person is to be established, is also sufficiently indicated by the words "against whom" and by the words "of his having been so concerned" which occur in section 41(1)(a).

1. Paras. 5.7, 5.8, supra.

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