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Report No. 177

Chapter VII

Section 41 of the Code of Criminal Procedure, 1973

Bearing the principles adumbrated in Chapter Five and the material referred to in Chapter Six, let us now proceed to first examine section 41 of the Code. Our main concern is with clauses (a) and (b) of sub-section (1) and sub-section (2) thereof. With a view to clear the ground we may first deal with sub-section (2).

Sub-section (2) says that "any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110", i.e., to arrest without a warrant and without an order from a Magistrate. We have set out the purport of sections 109 and 110 hereinbefore.

Section 109 provides for the Executive Magistrate calling upon a person, who, in his opinion (formed on the basis of information placed before him), is taking precautions to conceal his presence and there is reason to believe that he is doing so with a view to committing a cognizable offence, to execute a bond for good behaviour for a period not exceeding one year.

After appropriate inquiry, final orders have to be passed under section 117. Under section 109, no person can be sentenced to imprisonment or fine. Even if the proceeding ends against the person, it does not result in a conviction. Section 109 is in truth a preventive measure and section 41(2) provides that if a person belongs to the category mentioned in section 109, he can be arrested, without a warrant and without an order from a magistrate, by an officer in charge of a police station.

It is evident that the real purpose of section 41(2) is to clothe the police officer in charge of a police station to arrest a person, who is taking precautions to conceal his presence with a view to commit a cognizable offence, to prevent such person from committing a cognizable offence. Similarly, section 110 provides for an Executive Magistrate calling upon a habitual offender (of the kind mentioned in the said section) to execute a bond for his good behaviour for a period not exceeding three years.

This is again a preventive measure aimed at habitual robbers, house-breakers, thieves and other types of habitual offenders specified in the section. It means that a habitual offender of the kind mentioned in section 110 can be arrested any time by an officer in charge of a police station since neither section 110 nor section 41(2) prescribe any other condition for such arrest. Even so, it is obvious that section 41(2) read with section 110 is again a preventive measure.

It cannot be presumed that the law provides for picking up such a person at any time, at the pleasure of a Station House Officer, even if there is no apprehension that he is about to commit a crime. Again, under section 110, in case the allegations against the person are established, it does not result in a conviction nor can a sentence of fine or imprisonment be imposed upon that person.

Of course, section 110 takes in, inter alia, habitual offenders under Drugs and Cosmetics Act, 1940, Foreign Exchange Regulation Act, 1973 (now replaced by FEMA), Employees Provident Fund and Family Pension Fund Act, 1952, Prevention of Food Adulteration Act, 1954, Essential Commodities Act, 1955, the Untouchability (Offences) Act, 1955, the Customs Act, 1962 and any other law preventing the hoarding, adulterating or profiteering in food or drugs or of corruption.

It is however a matter of common knowledge that this power is hardly ever used against these economic offenders. It is mainly and generally used only against habitual offenders against property like thieves, robbers and house-breakers. We do not mean to suggest that such persons should not be arrested. All that we are pointing out is the in-built bias against the "nonrespectable" criminals while taking no action against the economic offenders who are the real and more dangerous offenders.

Be that as it may, this kind of carte blanche power to arrest "habitual offenders" of the specified kind at any time of his choosing, by an officer in charge of a police statio.- if the section is construed literall.- is intrinsically capable of abuse and is liable to be characterized as discriminatory. And if the section is construed as a preventive measure, it is unnecessary and superfluous as indicated hereinafter.

In our considered opinion, sub-section (2) of section 41 is unnecessary and superfluous in view of section 151 of the Code. As has been pointed out hereinbefore, section 151 occurs in chapter X.- 'Preventive Action of the Police'. Sections 149 to 153 contained in the said chapter provide for preventive arrests. In particular, section 151 provides that a police officer "knowing of a design to commit any cognizable offence may arrest, without orders from a magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented".

It is true that section 151 permits arrest only in case of a design to commit a cognizable offence, but so do sections 109 and 110. (Indeed, while section 41(2) empowers only an officer in charge of a police station to make arrest thereunder, section 151 empowers each and every police officer to do so.) Section 109 speaks of a person concealing his presence with a view to commit a cognizable offence; it does not speak of a person seeking to commit a non-cognizable offence.

If so, such person can be arrested under section 151 and resort to section 41(2) read with section 109 is unnecessary. Clause (a) of section 110, theft (379 and its aggravated forms in succeeding sections), dacoity (397 with its aggravated forms in the succeeding sections), house-breaking (453 and its aggravated form in the succeeding sections) and forgery (465 and its aggravated form in the succeeding sections) are all cognizable offences.

The offence of receiving stolen property knowing it to be stolen (under section 411, IPC) mentioned under clause (b) of section 110 is again a cognizable offence. Similarly, the offences mentioned in clauses (c) and (d) of section 110 are all cognizable offences. Clause (e) speaks of offences involving breach of peace. Evidently the reference is to chapter VIII of the IPC which carries the title "Offences Against the Public Tranquility". All the offences mentioned in this chapter are cognizable offences except three offences of a minor nature.

So far as clause (f) is concerned, the reference is to offences under several special enactment.- mostly dealing with economic activit.- some of which may be cognizable and some not. So far as the offences under these special enactments are cognizable, section 151 can take care of them and so far as non-cognizable offences under the said special enactments are concerned, there is no reason why such a wide and absolute power of arrest is conferred upon the Station House Officers even in case of such non-cognizable offences. The last clause in section 110 is 90 91 clause (g) (desperate and dangerous character, whose being at large is hazardous to the community). A person falling under clause (g) can certainly be arrested under section 151.

We are of the opinion for the above reasons that sub-section (2) of section 41 is superfluous and unnecessar.- apart from the inherent discriminatory character of the provision. The power under section 151 CrPC is sufficient to take care of situations contemplated by the said sub-section.

Indeed, it is more effective than section 41(2) inasmuch as section 151 clothes every police officer with the power to arrest a person who is designing to commit a cognizable offence if the commission of such offence cannot be prevented otherwise whereas under section 41(2), only the officer in charge of a police station can make the arrest. We are therefore of the opinion thatsub-section (2) of section 41 deserves to be deleted from the Code. Of course, this recommendation does not in any manner affect the power of the Magistrate under sub-section (3) of section 116 CrPC.

Now we shall take up clauses (a) and (b) of sub-section (1) of section 41.

Clause (a) of sub-section of section 41 empowers a police officer to arrest, without an order from a Magistrate and without warrant, any person "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". Similarly, under clause (b), any person "who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking" can also be so arrested.

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