Section 41 of cr.p.c.

Certainly

Thanks, Mr. Chugh. I hope you and other experts can enlighten us further on the implications of this amendment. Pursuant to this amendment it is seen that the women are adding the offence of attempt to murder. It is a different matter though. We must discuss on the amendment.

As per the amendment, the Police Officer is empowered to arrest a person in all cases of cognizable offences only when it is committed in his presence, in all other situations, if the offence is punishable with imprisonment less than 7 years, the amendment requires the police officer to record reasons in writing prior to effecting arrest and the reasons may be:

The arrest of accused is necessary to prevent commission of further crime.

The arrest of accused is necessary for proper investigation

To prevent the tampering of evidence

To prevent the accused 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

To ensure the presence of the accused in court.

If there are no such reasons mentioned above, the police officer can require the accused person to appear before it for investigation through issuing a notice to him. It shall be incumbent on the accused persons on whom the said notice has been issued to comply with the terms of the notice. If the accused persons commits breach of the notice and doesn’t appear before the police officer, it shall be lawful for the police officer to arrest him for the offence mentioned in the notice, subject to such orders as may have been passed in this behalf by a competent Court. (newly inserted S.41A).

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I do not think this will prevent police from arresting people at their will because the police will find one reason or the other among the five reasons stated above to arrest the person.  Their obligation to send notice arises only when they do not find any of those five reasons.  It is not possible at all that the policeman thinks like a magistrate and decides the case of accused does not fall under anyone of the five reasons mentioned above and hence he needs to be sent a notice.

However, if the police officer is corrupt then, he will use this to favor whosoever he wants to favor and arrest whosoever he wants to arrest without issuing notice.  Later he can explain to the higher ups questioning him, these are the reasons why I felt arrest is needed without notice.  Take for instance, the police officer says, "I felt he would tamper with evidence so I made arrest without issuing notice.".  Who can so no to it?  These are hypothetical reasons. 

The only lacuna with this amendment is, it will not help good people unless police officer is a good officer.  If police officer is corrupt then he will use this to help the accused by accepting bribes from him.  And influential people also are likely to enjoy bail before arrest without taking anticipatory bail from court.

It will become a police officer's power to grant bail.