IMPORTANT POINT
Arrest of accused – Simply because Police have power to make arrest does not mean that arrest should be made rather power of arrest should be exercised only as a necessity given paramountcy of liberty in our constitutional scheme.

ORDER (ORAL)

Heard learned counsel for the petitioner, Mr. Shakil Ahmad Khan, and learned A.P.P. for the State, Mr. Chandra Bhushan Prasad.

2. The petitioner apprehends his arrest in connection with Palanawa P.S. Case No. 175 of 2022 registered for the offences punishable under Sections 341, 323, 324, 325, 448, 379, 504, 506, and 354B of the Indian Penal Code.

3. The learned APP, Mr. Chandra Bhushan Prasad, at the outset, submits that the offences for which Palanawa P.S Case No. 175 of 2022 has been instituted against the petitioner carries punishment of less than 7 years. It is further submitted that Hon’ble Supreme Court in the case of Arnesh Kumar vs. the State of Bihar and another reported in (2014) 8 SCC 273 has laid down the guidelines that how the police and the learned Magistrate have to act in respect of offences, which carry punishment of 7 years or less than 7 years.

4. The learned APP next submits that offences in India are categorized by the Cr.P.C as cognizable and non- cognizable, bailable and non-bailable, for a cognizable offence, the police registers an FIR and arrests the accused without a warrant, if offence is bailable, the police must release the accused upon a reasonable security, if the offence is non- bailable, only court can order release on bail. It is next submitted that police high-handedness in making arrests and a sluggish magistracy in remanding accused to judicial custody have been a source of concern to the Hon’ble Supreme Court. The Hon’ble Supreme Court in the case of Joginder Kumar vs. the State of UP and others reported in (1994) 4 SCC 260 emphasized that simply because the police have the power to make arrest does not mean that an arrest should be made rather the power of arrest should be exercised only as a necessity given the paramountcy of liberty in our constitutional scheme. Further the Hon’ble Supreme Court in the case of D.K. Basu vs. State of West Bengal reported in (1997) 1 SCC 416 issued a continuous mandamus on the mode and manner of arrest.

5. It is further submitted that the iteration of these principles in judgment after judgment prompted various amendments to Chapter 5 of the Cr.P.C, which deals with arrest by police while investigating cognizable offences.

6. It is submitted that Section 41 of the Cr.P.C was amended in the year 2009 to divide the non-bailable and cognizable cases where police have the power to arrest into two categories — those carrying imprisonment of seven years or less falls under Section 41(b) of the Cr.P.C to be dealt differently by those carrying a term higher than seven years, which comes under Section 41(b)(a).

7. As per Section 41(b) Cr.P.C, offences punishable with seven years or less are not to automatically lead to arrest, rather before making arrest in such a case, a police officer is required to record his satisfaction that the arrest is necessary to prevent the accused from absconding, repeating the offence or tampering with the evidence, where an arrest is not necessary for these reasons, it shall be recorded that the accused has not been arrested and instead a notice under Section 41(a) of the Cr.P.C shall be issued requiring the accused to appear before the police and aid the investigation and it is obligatory for the accused to comply with the notice, if there is compliance, there is statutory protection from arrest, if there is non-compliance, or there are compelling reasons for arrest, the fact must be recorded in writing and subject to orders passed by a court of competent jurisdiction, an arrest be made. It is further submitted that the statute emphasizes on recording of reasons so that the Magistrate before whom the accused is produced after arrest, examines the necessity of arrest and continued custody. The Hon’ble Supreme Court in the case of Arnesh kumar vs. State of Bihar, (2014) 8 SCC 273, held – before a Magistrate authorizes detention under Section 167 Cr.P.C, he has to be first satisfied that the arrest made is legal and in a