Legal Question in Criminal Law in India

CrPC (Amendment) Act 2008 gets Presidents accent President gives accent to Law forbidding arrest in offenses carrying upto seven years imprisonment It has been reported in the Times of India dated 19th January, 2009 that the President has granted assent to the law past nearly three week back by the parliament which brings about major changes in the Criminal Procedure Code. This newly enacted law take away the powers of the police to arrest in cases of alleged offenses which carry a maximum sentence upto seven years of imprisonment. Once the law, CrPC (Amendment) Act 2008, becomes effective, the police, instead of arresting the accused, will be obliged to issue him/her a “notice of appearance” for any offence punishable with imprisonment up to seven years. The person can be arrested only if he/she does not appear before the police in response to the notice. Seven years or less is the maximum penalty for a lot of offences. These offences include such as attempt to commit culpable homicide, kidnapping, death by negligence, cheating, voluntarily causing grievous hurt, outraging a woman’s modesty, robbery, attempt to suicide. These amendments have been made in section 41 of the CrPC. Under Section 41, as it originally stood, a police officer may, without an order of a magistrate and without a warrant, arrest any person who has been concerned in any cognisabale offense. The rationale of the amendment in section 41 of the code of criminal procedure has been justified by the home minister of India Shri P. Chidambaram reportedly in his letter which says that the provision was being capable of being misused and was in fact actually being misused in practice. He substantiated this claim of misuse of the arrest law by the police using it more of an engine of harassment rather than an instrumentality of fair investigation by citing the various reports of the law commission of India, the Malimath committee of reforms, and the landmark supreme court judgment in the case of DK Basu. In fact it was misused of this law that had necessitated the delivering of DK Basu judgment in which various dos’ and donts’ were prescribed to be strictly complied by the police force while investigating a case and arresting an accused. The amendment in CrPC, however, allows police to arrest without an order from a magistrate and without a warrant a person who commits a cognisable offense “in the presence of a police officer”. It also enables arrest of “a person who has committed a cognisable offence (punishable for a term which may be less than 7 years or extend upto 7 years) if there is a reasonable complaint or credible information or a reasonable suspicion and the police officer is satisfied that such arrest is necessary for proper investigation of the offence or for preventing tampering with the evidence“. The only additional requirement in such cases is that the police officer will have “to record his reasons” for making the arrest. Some of the salient features of amendments to Section 41 of the CrPC, pertaining to power of arrests with police are, 1. The amendment proposes that the police officer may, instead of arresting the person concerned, issue a notice of appearance, asking him to cooperate with the police officer in the probe. 2. Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice and arrest can be made only if the person fails to comply with the notice. 3. Every police officer while making an arrest shall “bear an accurate visible and clear identification of his name.” At the time of arrest, the memorandum shall be attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made. NOTIFICATION HAS YET TO BE ISSUED. A MOMENTUM BY MAILS, REQUEST, SMS TO THOSE IN POWER AND GENERAL PUBLIC CAN BE CREATED TO ISSUE NOTIFICATION AS EARLY AS POSSIBLE TO STOPP MISUSE OF POWER BY THE POLICE.

pls advice is this amendment is true

if yes then why to take bail first and then go to police

Asked on 1/03/13, 10:50 am

4 Answers from Attorneys

Shrichand Nahar S.V.Nahar, Advocate
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Amendment to section 41 Cr.P.C. dealing with arrest and some others are effective from 1.11.2010. Other Amendments were came into force in 2009 itself.

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1/03/13, 10:12 pm
Aniruddha Pawse Aniruddha.P.Pawse Advocates
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i agree with Adv Nahar

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1/04/13, 2:13 am
Lovkesh Gupta divorce lawyer in jalandhar
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i agree with Adv.Sh. Aniruddha Pawse & with Adv. Sh. Nahar

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1/04/13, 3:49 am

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