Arrest – Procedure to be followed by Police Officer – The police must follow the procedures laid down by the courts – if any situation/circumstance is covered u/s. 41 and 41-A of the CR.P.C proper reasoning for the arrest is required [Criminal Procedure Code, 1974 Section 41, 41-A]

In the present case, Petitioners being a lady doctor and a lady advocate, against whom a complaint was filed and an FIR u/s. 420 (cheating) and 34 of IPC and Section 66D of the Information Technology Act, 2000, was registered by the Cyber Police. Petitioners submitted that this Court should look into the manner in which they had been arrested, how the norms fixed by this Court had been flagrantly violated and how their dignity was sullied permitting the atrocities to reign. It was urged that if this Court is prima facie satisfied that violations are absolutely impermissible in law, they would be entitled to compensation.

The Hon’ble Supreme Court (SC) held that before the police proceed to arrest, certain guidelines as prescribed by the SC in the case of D.K. Basu vs. State of W.B. (1977) SC 416 should be adhered to.

Thereafter, the Court referred to Section 41 of the Code of Criminal Procedure (inserted by Amendment Act of 2009) and analysing the said provision, opined that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence. It has been further held that a police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured.

It has been held that section 41A of the Code of Criminal Procedure makes it clear that where the arrest of a person is not required u/s. 41(1) of the Code of Criminal Procedure, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 of the Code of Criminal Procedure has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.