Report No. 177
1.4 Practical aspects of sections 41 and 42, CrPC.-
A reading of the above provisions and, in particular, of Sections 41 and 42 shows the width of the power of arrest vested in police officers. Take for example, the ground in clause (b) of Section 41. It empowers a police officer to arrest a person who is in possession of "any implement of house breaking" and the burden is placed upon that person to satisfy that possession of such implement is not without "lawful excuse". What does an "implement of house breaking" mean?
Any iron/steel rod or any implement used by way-side repairers of punctured tyres can also be used for house breaking. Similarly, clause (d). Any person found inpossession of stolen property "and who may be reasonably suspected of having committed an offence with reference to such thing." What a wide discretion? Why, take clause (a) itself. The situations covered by it are:
(i) a person who is "concerned in any cognizable offence",
(ii), a person against whom a reasonable complaint is made that he is "concerned in a cognizable offence";
(iii) a person against whom "credible information" is received showing that he is "concerned in any cognizable offence" and
(iv) a person who is reasonably suspected of being "concerned in any cognizable offence".
The generality of language and the consequent wide discretion vesting in police officers is indeed enormou.- and that has been the very source of abuse and misuse. The qualifying words "reasonable", "credible" and "reasonably" in the Section mean nothing in practice. They have become redundant; in effect.