What is the procedure of arrest and what are the duties of the arresting officer under the newly added Section 41B of Cr.P.C.? State whether a police officer can arrest......under Section 41 A?

Question: What is the procedure of arrest and what are the duties of the arresting officer under the newly added Section 41B of Cr.P.C.? State whether a police officer can arrest the person who complies with the terms of the notice under Section 41 A?

Find the answer to the mains question only on Legal Bites. [What is the procedure of arrest and what are the duties of the arresting officer under the newly added Section 41B of Cr.P.C.? State whether a police officer can arrest the person who complies with the terms of the notice under Section 41 A?]

Answer

Section 46 of the Code of Criminal Procedure deals with how is arrest made. It says that the police officer or other person while arresting shall touch or confine the body of the person until there occurs a submission to the custody either by word or action. In case such a person either resists his arrest or tries to evade then the police officer or other person can apply all necessary means in order to effect the arrest. Further, Section 46(3) emphasises this section does not grant any right to cause the death of a person who is not accused of an offence punishable with death or imprisonment for life.

Section 41 B, which was inserted into the Code of Criminal Procedure by the Code of Criminal Procedure (Amendment) Act, 2008 lays down the procedure of arrest and duties of the officer making an arrest.

Section 41B provides that every police officer while making an arrest shall-

(a) bear an accurate, visible, and clear identification of his name which will facilitate easy identification
(b) prepare a memorandum of arrest which shall be—
(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and
(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.

Under the provisions of Section 41A (1), the police officer may, in all cases where the arrest of a person is not required under the provisions of Section 41(1), issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

Section 41A (2) provides that where such notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

Section 41A (3) then provides that where the person to whom a notice is issued under Section 41A(1) complies 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 officer is of the opinion that he ought to be arrested.

If a person complies with the terms of the notice issued under Section 41A, such as appearing at the police station as requested and cooperating with the investigation, the police generally would not arrest that person. The purpose of Section 41A is to reduce unnecessary arrests and to promote fair and just procedures.

But, as per Section 41A (4), if 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.

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