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Report No. 152

5.20. Amendments to section 41 recommended.-

Accordingly, we recommend that in section 41 of the Code of Criminal Procedure Code, 1973 after sub-section (1), the following new sub-section (1A) should be inserted:-

"41 (1A) A police officer arresting a person under clause (a) of sub-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 of from indulging in violent behaviour in general."

We should mention at this stage that about unrestricted power of arrest, some of the replies to our Questionnaire favour some restriction (Issue No. 8). In fact a senior police officer expressed this view at the Seminar.

In Joginder Singh's case,1 a very helpful suggestion has been made about the possibility of substituting a notice of appearance in place of arrest by the police. This is really in the nature of a summons, but it is new idea inasmuch as, under the present law in India, while a summons to an accused person may be issued by the court, the police does not issue a summons to an accused person. There are several factors justifying the insertion of such a provision.

The great factor is, of course, the protection of personal liberty which, in certain cases, can be achieved without sacrificing considerations of public welfare. Substitution of this device will automatically eliminate, or at least reduce, the possibility of custodial crimes. We should, therefore, recommend that in the Code of Criminal Procedure, 1973, a new section should be inserted on the following lines:-

"41A. Notice of appearance.-Where the case falls under clause (a) of sub-section (1) of section 41, the police officer may, instead of arresting the person concerned, issued to him a notice of appearance requiring home 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 the 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."

1. Joginder Singh v. State of Uttar Pradesh, JT (1994) 3 SC 423 (430, 431).

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