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CrPC 41A Guidelines by Courts

Guidelines by Courts

The courts, therefore, felt necessary to introduce certain guidelines in order to prevent the unnecessary hard being caused by Section 498A.  The court in the case of Arnesh Kumar vs. State of Bihar set out guidelines requiring the police officers not to arrest the accused unless necessary and the Magistrate do not approve detention carelessly and mechanically. The directions are as follows:

First, the police must satisfy themselves about the necessity of the arrest in accordance with the parameters laid down on Section 41 of Cr. P.C.

Secondly, Police should maintain checklist under Sec. 41(1) (b) (ii), which encompasses arrest to prevent further offences, for the better facilitation of investigation, fear of evidence being tampered or disappearing, prevent making any inducement or threat or unless arrest is made, presence in court cannot be ensured.

Thirdly, such a check-list should be communicated to Magistrate.

Fourthly, the Magistrate should be completely satisfied and should preserve the report.

Fifthly, a decision not to arrest should be informed to the Magistrate within two weeks from the date of institution of case.

Sixthly, Notice of appearance for Section 41 A of Cr. P.C should be sent within two weeks.

Seventhly, failure to the police authorities to comply with these directives would make them liable for departmental action and also contempt of court and last but not the least, any act of authorizing the detention without recording the reasons by the Judicial Magistrate would make him liable for the departmental action.

Justice Chandramauli Kr. Prasad and Justice Pinaki Chandra Ghose had meticulously recorded the ground realities of complaints under Section 498A, rewriting the relationship between police and public successfully. This landmark decision is a force to previous failed attempts to make the power of arrest less corruption centric. In the case of Joginder Kumar v. State of U.P (1994), it was observed that “No arrest should be made on a mere allegation of the commission of the crime.” Therefore, it can be concluded that the judiciary has taken a proactive approach to safeguarding the interest of the husband and his relatives by keeping a tap on the sources of police corruption and misuse.  Proper implementation of this judgment is sure to bring a sense of justice for all the stakeholders, as only the one who is guilty would be behind the bars.

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Section 41 set out guidelines for arresting without warrant. It lays down the conditions which should conclude the satisfaction of the police authority before arresting; it must be inferred that the arrest is necessary to prevent further offences, for proper investigation or to protect evidence, etc., these should be derived only out of facts and proper reasoning which should be recorded in writing. In addition to this, the accused arrested without the warrant has constitutional protection enshrined under Article 22 (2) read with Section 57 of Cr.P.C and Section 167 of Cr.P.C.

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