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Report No. 152

1. Power of Police to Arrest

Issue No. 1

Should the police continue to have unrestricted power to arrest any person at any time and at any place without any order or permission from the Magistrate or any other court?

Views of Academicians

Both of academicians are of the view that police should not continue to have unrestricted power to arrest. In their view proper accountability has to be built up against power of arrest exercised by the police.

Views of Hon'ble Judges

The Hon'ble Ex-Chief Justice of India answered Issue No. 1 in affirmative. So do all the four of the High Courts. They regard the existing provisions to be satisfactory. According to the Ex-Chief Justice of India, the Constitution has imposed an obligation to convert the detention into judicial custody within 24 hours which is more than sufficient.

Views of Advocates

Out of seven, five have supported the power of police to arrest and one has deviated from the question and not replied the issue directly. The Calcutta Bar Association has responded in negative and has suggested to restrict the power of police regarding arrest. They feel that the term "cognizable" should be redefined so that the police may arrest without warrant only in appropriate cases. The law should also enjoin the police officer to record reason for arrest and as such he suggested that section 41 of Cr. P.C. be deleted.

Views of Police Officers

Out of twelve, eleven officers have suggested that there is no need for any amendment in existing laws regarding arrest and one officer from Manipur (Imphal) has agreed and wanted the law be amended. They feel that the powers of arrest are not unrestricted. One officer says that the power of arrest should be restricted except in the case of hard-core extremists, terrorists, drug paddlers and smugglers. Others say that any condition should not be placed in regard to their power of arrest. On the other hand, A.I.G. of Arunachal Pradesh, Itanagar, agrees with the proposal of Law Commission.

Views of State Governments

Six State Governments, namely, Government of Goa, West Bengal, Karnataka, Rajasthan and Bihar supported the powers of police to arrest as necessary to maintain law and order. They are of the view that if the police officer is required to take the permission for arrest from the Court the suspect may flee away.

The Government of Goa feels that in case police have to obtain permission from the Magistrate or any other Court it will go against section 41 of Cr. P.C. and even a murderer will escape from the scene of offence. It will amount to permit members of unlawful assembly to escape after indulging into violence. If this power is taken away there will be serious adverse effect on law and order position.

The Government of Andhra Pradesh is of the view that as the punitive provision contained in the Indian Penal Code under sections 220, 330, 331 are inadequate and almost ineffective, there is every possibility of misusing such powers. They suggested that power of arrest under section 41, Cr. P.C. may be curtailed and it should be limited to Terrorists, hard-core criminals but not to others. There should be no routine arrests. The State Governments/Union Territories of Pondicherry, Mizoram, also support this view.

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