As a person who knows a little about how the Police functions, let me offer my views on the latest CrPC admendment:
Here is the 2008 amendment
Here is the original section 41 of CrPC.
The relevant portion of the new provisions is given as below:
41. When police may arrest without warrant.
(1) Any police officer may without an order from a Magistrate and without a war rant, arrest any person-
(a) who commits, in the presence of a police officer, a cognizable offence;
(b) 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) the police officer has reason to believe on the basis of such
complaint, information, or suspicion that such person has committed the
(ii) the police officer is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the
offence to disappear or tampering with such evidence in any
(d) to prevent such person from making any inducement,
threat or promise to any person acquainted with the facts of the
case so as to dissuade him from disclosing such facts to the Court
or to the police officer; or
(e) as unless such person is arrested, his presence in the
Court whenever required cannot be ensured,
and the police officer shall record while making such arrest, his reasons in
As can be seen, irrespective of whether the offence has a punishment of less than or more than seven years, a police officer can make an arrest if it is committed in his presence. In other cases also (where the imprisonment term is less than or equal to 7 years) the arrest can be made but then the police officer will have to record reasons in writing.
This will help in declogging jails and reduce a lot of work load/expenses of law enforcement/judicial agencies. On flip side it'll help influential folks who'll go on threatning witnesses and bribing police officers.
Irrespective of this amendment, influential folks can anyway try to influence witnesses and try to bribe officers. Doing so interferes with the administration of justice and can justifiably be quoted as reasons for making an arrest in a <=7 year offence. No problem here.
I feel the law only speaks about "arrests", and not about "illegal detention". And in my humble opinion "illegal detention" is what have to be sorted out first rather than arrest. Because a person is only legally "arrested" when the police prepare the arrest memo, makes entries in the General Diary etc. etc. And once an arrest is made the police are duty bound to produce the arrested person before a magistrate within 24 hours.
True. But arrests cannot be made that easily now. The police officer will have to justify it. So if the offence is of <=7 years variety the accused can justifiably exercise more leverage (and demand to be let off) if he knows he cannot be arrested in the normal course.
One of the police reforms committee recommendation was to remove the "lock up" from the local police stations, but have a central holding facility (a group of lockups) attached to a higher police official's (say Dy.SPs) office. But this is yet to be implemented, and the police officers have some concern here too.
That would be administratively difficult. There are remote police stations, and it will be difficult to bring the accused to the DySP headquarters immediately. Anyway the law provides that the arrested persons be produced before the magistrate within 24 hours. And if the policemen want to keep a person under illegal detention then even if there is no lockup they can do so.
Raj Malhotra wrote:
While I personally think that CrpC amendment will reduce the harrassment powers of police but the amendment is meant to save politicians and businessmen from arrest in corruption, cheating and tax evasion cases.
About seven million people were arrested in 2007
, a vast majority of them for offences with <=7 years imprisonment.
Of these seven million there weren't many businessmen or politicians. They could evade arrest very easily earlier too.
Allah hu Akbar, the p/g andoos finally get the firm kick in the nuts. No more threatening common abduls with arrests. The Bar council can go to hell, they are in cahoots with the cops and ensure that poor people go through a lot of misery to get bail. This is ground-breaking and worth celebrating.
M C Joshi wrote:
On the other hand, the new procedure makes it almost impossible to arrest those responsible for petty crimes. Hence, the society must brace itself for a spate of crimes that include attempt to commit culpable homicide, voluntarily causing grievous hurt, cheating, outraging a woman’s modesty, death caused by negligence, etc.
Joshiji is wrong. The police officer can easily cite repeat offences (of petty nature) as a reason for arrest. By the way, I thought a better way to administer justice is to prove the case and let the offender go to jail as a convict, rather than just arrest on suspicion and let the fellow rot in jail. And only very poor petty criminals will not be able to arrange for bail. Any 'respectable criminal' (petty or otherwise) does not find it very hard to get bail. If the police case is strong, then under the new provisions also they can make an arrest and the court will deny bail.
M C Joshi wrote:
We should not forget that we have a system where outlaws become lawmakers and criminals get political patronage. As it is the police works under tremendous pressure.
How would the new system aid outlaws from becoming lawmakers. Under the existing system, haven't we seen Raj Thackeray and others get bail easily.
Indian Police, by and large, has a tendency to misuse the power of arrest. Often they will extort money from 'respectable' suspects for not arresting them. Power of arrest is the biggest nuisance power of the police
. Otherwise, they will have to make a good case and prove it in court.
Arrest and bail have become the major dhandha
for most Policemen and criminal Lawyers. That's why we hear howls of protests from the legal fraternity (mainly small-time lawyers - their roji-roti
depends on these cases).
Police tends to satisfy the public in any sensational case by saying that they have arrested the suspects. Few people bother whether they have actually made a good investigation that will stand scrutiny in the court. Often they submit half-baked and on-the-face-of-the-record faulty charge sheets. If the accused is let off by the court, they plead helplessness. There is little accounting of the investigation lacunae.
This amendment should ideally make them focus more on proper investigation and followup to get a conviction, not just make a poor suspect spend months (sometimes years) in jail as an undertrial. The focus of policing needs to change from a public order maintenance agency to a crime detection, prevention, and investigation agency. Investigation is a hard skill, it takes time and effort, and the results are not obvious immediately (courts take years to decide), therefore the incentives are misaligned for a police officer. Many States have not yet separated the investigation and public-order-maintenance police wings, so the same guy does both jobs and usually the latter job takes precedence.
Having said that, the police can always misuse the new law also. One way is to get the accuser to allege that the accused is threatening him/her. So for those people who are accused in Sec 498a (for example), this new provision helps but not much. The wife/in-laws could always make another application to the police such that the requirements of Section 41(1)(b)(ii)(d) are met. And the policemen/lawyers can helpfully suggest that 'stronger' action is possible only if such an application is made.
The amendment is in the right direction. But lets wait and watch.