Report No. 177

Chapter IV

Previous recommendations on the subject by Law Commission of India and other bodies

The power to arrest without warrant vested in police by the Code has been engaging the attention of the Law Commission and the National Police Commission over the last several years. It would be appropriate to refer to them at this stage.

In its 152nd Report on Custodial Crimes (1994), the Law Commission examined this issue in the context of custodial crimes and recommended insertion of a few pertinent new provisions in the Code. It recommended that after subsection (1) of section 41, a new sub-section, (1A), may be introduced to the following effect:

"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."

The second suggestion was to insert a new section, 41A, in the light of the decision of the Supreme Court in Joginder Kumar. The new section suggested was to the following effect:

"41A. Notice of appearanc.- Where the case falls under clause (a) of subsection (1) of section 41, 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 cooperate 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 complied 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 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."

The third suggestion in the 152nd Report of the Law Commission was to insert a new section, 50A, to the following effect:

"50A. (1) whenever a person is arrested by a police officer, intimation of the arrest shall be immediately sent by the police officer (along with intimation about the place of detention) to the following person:

(a) a relative or friend or other person known to the arrested person, as may be nominated by the arrested person;

(b) failing (a) above, the local legal aid committee.

(2) Such intimation shall be sent by telegram or telephone, as may be convenient, and the fact that such intimation has been sent shall be recorded by the police officer under the signature of the arrested person.

(3) The police officer shall prepare a custody memo and body receipt of the person arrested, duly signed by him and by two witnesses of the locality where the arrest has been made, and deliver the same to a relative of the person arrested, if he is present at the time of arrest or, in his absence, send the same along with the intimation of arrest to the person mentioned in (1) above.

(4) The custody memo referred to in (3) above shall contain the following particulars:

(i) name of the person arrested and father's name or husband's name;

(ii) address of the person arrested;

(iii) date, time and place of arrest;

(iv) offence for which the arrest has been made;

(v) property, if any, recovered from the person arrested and taken into charge at the time of the arrest; and

(vi) any bodily injury which may be apparent at the time of arrest.

(5) During the interrogation of an arrested person, his legal practitioner shall be allowed to remain present.

(6) The police officer shall inform the person arrested, as soon as he is brought to the police station, of the contents of this section and shall make an entry in the police diary about the following facts:

(a) the person who was informed of the arrest;

(b) the fact that the person arrested has been informed of the contents of this section; and

(c) the fact that a custody memo has been prepared, as required by this section."

The fourth recommendation pertained to introduction of a new section, section 57A, in the following terms:

"57A. Duty of Magistrate to verify certain facts. When a person arrested without warrant is produced before the Magistrate, the Magistrate shall, by inquiries to be made from the arrested person, satisfy himself that the provisions of sections... have been complied with (sections relating to safeguards in connection with arrest, rights on arrest, etc. to be entered) and also inquire about, and record, the date and time of arrest."

In their 135th Report on Women in Custody, the Law Commission had recommended a new section 450B with respect to arrest of women. The suggested new section was to the following effect:

"450B.Arrest of women.- (i) Where a woman is to be arrested under this Code, then unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed, and unless the circumstances otherwise require or unless the police officer arresting is a female, the police officer shall not actually touch the person of the woman for making her arrest.

(ii) Except in unavoidable circumstances, no woman shall be arrested after sunset and before sunrise, and where such unavoidable circumstances exist, the police officer shall, by making a written report, obtain the prior permission of the immediate superior officer not below the rank of an Inspector for effecting such arrest or, if the case is one of extreme urgency, he shall, after making the arrest, forthwith report the matter in writing to his such immediate superior officer, with the reasons for arrest and the reasons for not taking prior permission as aforesaid and shall also make a similar report to the Magistrate within whose legal jurisdiction the arrest has been made."

It appears that on the basis of the above recommendation sub-section (4) of section 46 was indeed included in the Code of Criminal Procedure (Amendment) Bill, 1994, which unfortunately has not yet become law. Sub-section (4) of section 46 which the Bill proposed to insert in the Code was to the following effect:

"(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise and where such exceptional circumstances exist, the police officer shall, by making a written report, obtain the prior permission of his immediate superior officer for effecting such arrest or, if the case is one of extreme urgency and such prior permission cannot be obtained before making such arrest, he shall, after making the arrest, forthwith report the matter in writing to his immediate superior officer explaining the urgency and the reasons for not taking prior permission as aforesaid and shall also make a report to the Magistrate within whose local jurisdiction the arrest had been made."

In their 154th Report on the Code of Criminal Procedure, the Law Commission examined this issue as well along with several others. After considering the earlier Reports of the Law Commission on the subject, the decision of the Supreme Court in Joginder Kumar and the Third Report of the National Police Commission, the Commission made the following recommendations:

(1) Addition of a proviso to section 46(1) in the following terms:

"Provided that where a woman is to be arrested, then, unless the circumstances indicate the contrary, her submission to custody on an oral intimation, arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer arresting is a female, the police officer shall not actually touch the person of the woman for making her arrest."

(2) Addition of a new sub-section (2) in section 46, as is indeed proposed to be done by the 1994 (Amendment) Bill.

(3) Insertion of a new sub-section, (3), in section 41 to the following effect:

"41(3). A police officer arresting a person under clause (a) of sub-section (1) of this section must be reasonably satisfied that arrest is necessary and must record such satisfaction in respect of matters covered by every clause of sub-section (1)."

(4) Addition of a new section, section 41A, to be inserted in the following terms:

"41A(1) The police officer may, if satisfied that immediate arrest of the person concerned is not necessary, issue to him a notice requiring him to appear before the police officer at specified time and place for further investigation and it shall be the duty of that person to comply with the terms of the notice.

(2) If such person fails to comply with the terms of the notice, it shall be lawful for the police officer to arrest him for the offence mentioned therein."

In their 172nd Report on the Review of Rape Laws, the Law Commission recommended insertion of several provisions designed mainly to protect the women and children. It may not be necessary to refer to the recommendations contained in this Report because most of them deal with post-arrest stages, that too, in the case of women and children alone.