ONE HUNDRED AND SEVENTY SEVENTH REPORT
LAW RELATING TO ARREST
2 December 2001
D.O. No. 6(3)(63)/99-L.C.(LS)
December 14, 2001
Dear Shri Jaitley,
I am herewith forwarding the 177th Report on Law Relating to Arrest. This subject was taken up by the Law Commission suo motu with a view to clearly delineate and regulate the power of arrest without warrant vested in the Police by section 41 and other provisions of the Criminal Procedure Code. The said provisions were enacted before the judgment of the Supreme Court in Maneka Gandhi (1978). The law laid down in the said decision casts a cloud upon the validity of some of the provisions in section 41 and allied provisions.
With a view to ascertain the exact situation obtaining today, we had requested the National Human Rights Commission (NHRC) to collect the data from all the States with respect to the number of arrests in a given year, the number of arrests for bailable offences, the number of arrests under preventive provisions and other relevant particulars. Accordingly, NHRC wrote to Director Generals of Police of all the States, who were good enough to send the material as required by us. On the basis of material so forwarded, we had prepared an extract, which is now annexed to this Report as Annexure II. They establish that, overall, the arrests under the preventive provisions were more in number than the arrests for substantive offences and further that a large number of arrests were in respect of bailable offences which more often happen to be non-cognizable offences (wherein no arrest can be made without a warrant or order from a magistrate). The Law Commission accordingly prepared a Consultation Paper setting out its provisional views and issued a questionnaire to all concerned. Three seminars were held by the Law Commission at Delhi, Calcutta and Hyderabad respectively. A large volume of responses were also received from the concerned members of the public, organizations and associations. After duly considering all the said material, the Law Commission has prepared the accompanying Report.
We have suggested amendment of section 41 and in particular substitution of clauses (a) and (b) of sub-section (1) of section 41. We have also recommended deletion of the present sub-section (2) of section 41 and substitution of another provision in its place. Besides the amendment of section 41, amendments are recommended to several other provisions in the Code of Criminal Procedure.
The theme of our Report is to maintain a balance between the liberty of the citizens (the most precious of all fundamental rights) and the societal interest in maintenance of peace and law and order. This is no doubt a difficult balance but it has to be attempted, and achieved to the extent possible. We have also taken note of certain important decisions of the Supreme Court including the decisions in Joginder Kumar v. State of U.P. (1994) and D.K. Basu (1997). I am sure the Government will take these recommendations into consideration and take steps for implementing them.
With warm regards,
(B.P. Jeevan Reddy)
Shri Arun Jaitley,
Union Minister for Law, Justice
And Company Affairs,
Government of India,