PART-II THE ARREST SERIES (WITH FOCUS ON THE CODE OF CRIMINAL PROCEDURE, 1973)

This multi-part blogpost series is aimed at illuminating the most essential aspects of the police’s power to arrest any person. After discussing the circumstances where the police is empowered to arrest a person without warrant in the first post, this is the second post of this series. In this post, I intend to discuss the flaws apparent in the drafting of Section 41 CrPC, 1973. This post may be skipped by the readers with a non-law background and they may directly read the third post.

Second Part

It is extremely important to have precision in drafting of laws, and more so when drafting criminal laws. The laws should be clear in their intent and meaning and free of verbosity and vagueness. This is an ideal objective which the draftsman must strive to achieve at all the times. With this brief ode to quality of legislative drafting, let us begin with a critical analysis of Section 41 of the CrPC.

1.     The initial part of Section 41(1)(b) could have been drafted as follows and would have been equally effective-
“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 punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-
(i)…

2.   The placement of the proviso to sub-section 41(1) is wrong. The proviso should have been placed at the end of the sub-section whereas it has been placed at the end of sub-clause (b) of sub-section (1) of Section 41. Going by the current placement, it appears as if the reasons have to be recorded for not making an arrest only with respect to the cases falling under Section 41(1)(b).

3.     Clause (ba) could have been framed as follows and would have been equally effective-
Against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to a term more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence.

4.   Clause (d) of the Section is inconsistent with Section 41(2). It is so because while S. 41(2) prohibits arrest without warrant in case of non-cognizable offences, Clause (d) allows arrest without warrant for certain non-cognizable offences, for example offences under Section 403 (Dishonest misappropriation of movable property, or converting it to one’s own use) and 404 (Dishonest misappropriation of property, knowing that it was in possession of a deceased person at is death and that it has not since been in the possession of any person legally entitled to it) of the IPC, 1860. The problem is further compounded by the fact that neither S. 41(1) is a non-obstante provision nor S. 41(2) subjects itself to S. 41(1).

5.   Similarly, Clause (e) corresponds to the description of the offence stated in S. 186 of the IPC, 1860, which again surprisingly is a non-cognizable offence. And this classification should afford the accused the protection from arrest without warrant under S. 41(2) but S.41 (1) (e) states otherwise. It may be argued that S. 41(2) shall protect all persons obstructing public servant from arrest without warrant barring the case when the public servant is a police officer.

6.   On identical lines, Clause (g) allows arrest without warrant in cases where offence is committed outside India and the accused is liable to be detained or apprehended in India under any treaty of extradition or otherwise. The sub-clause does not distinguish between cognizable and non-cognizable offences and poses a similar interpretive difficulty as Clause (e) and (d).

These are some drafting errors which I find in Section 41, CrPC, some demonstrating verbosity and some leading to a potential conflict between S. 41(1) and S. 41(2).

Shall be grateful for valuable comments of the readers…

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