Police officer must record reasons for not making arrest

Home Minister P. Chidambaram on Monday introduced in the Lok Sabha the Criminal Procedure Code (Amendment) Bill, 2010, that seeks to restrain the police from arresting a person for criminal offences for which the maximum sentence is seven-year imprisonment and mandates the police officer to record in writing the reasons for not making the arrest.

(The Indian Penal Code provides for imprisonment up to seven years for offences including an attempt to commit culpable homicide, robbery, attempt to suicide, kidnapping, voluntarily causing grievous hurt, cheating, outraging a woman's modesty and death caused by negligence and dowry harassment.)

In 2008, the government introduced amendments to Section 41 Cr.PC which says: “No person concerned in a non-cognisable offence or against whom a complaint has been made or credible information received or reasonable suspicion exists of his having been so concerned shall be arrested except under a warrant or order of a magistrate.”

However, arrest can be made without a warrant, after recording the reasons in writing if the police officer is satisfied that it is necessary for proper probe, or to prevent the person from committing any further offence or making any inducement, threat or promise to anyone acquainted with the facts of the case.

Soon after the amendment, lawyers were up in arms and urged the government not to notify the amended law.

The new amendment incorporates a clause in Section 41 which says: “A police officer shall, in all cases where the arrest of a person is not required, record the reasons in writing for not making the arrest.”

Further, as per Section 41 A, the police, instead of arresting the accused, will be obliged to issue him/her a “notice of appearance” for any offence punishable with imprisonment up to seven years. The person can be arrested only if he/she does not appear before the police in response to the notice.

This provision is now amended to the effect that “where such person fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to orders as may have been passed by a competent court, arrest him for the offence mentioned in the notice.”

Statement of objects

According to the Statement of objects and reasons, in the light of objections from certain quarters to certain provisions of the Cr.PC amendment Act 2008, the Act could not be brought into force. The Law Commission discussed the issue with all concerned, including the Chairperson(s) of the Bar Councils and the Bar Council of India. After consultations, it recommended a further amendment of Section 41 to make it compulsory for the police to record the reasons for making as well not making an arrest for a cognisable offence for which the maximum punishment is seven years. The Commission also suggested that unwillingness of a person who has not been arrested to identify himself and to whom a notice has been issued could be a ground for arrest. The Bill seeks to achieve these objectives.

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