Rajesh kumar v Vijento Arya –
Police need to satisfy themselves of grounds of arrest under Section 41A, now 35(1) and
only then to arrest. Even magistrate should not authorize the detention mechanically and
casually. Notice of appearance to accused under 41A i.e 35(3) to be served within two weeks
from institution of the case.
Amandeep Johar v state of NCT of Delhi
The court dealt at length on 41A of CRPC. The court emphasize on the following of
procedure laid under the section of issuing notice to person when arrest is not needed for
making him appear before the police officer [35(3)]. Non-following of procedure by
investigation officer could lead to disciplinary proceedings & contempt under terms of
Arnesh Kumar case. [Para 15].
Sidharth V. State of UP
Such an arrest may also be necessary if the concerned Investigating Officer or Officer-in-
charge of the Police Station thinks that presence of accused will be difficult to procure
because of grave and serious nature of crime as the possibility of his absconding or
disobeying the process or fleeing from justice cannot be ruled out. [35(1)].
Otherwise, police should avoid arresting a person and send him to jail, if it is possible to
complete investigation without arrest. [Para 20].
Satyendra Kumar Antil vs. CBI case gave the following guidelines:
Notice through whatsapp msg or electronic mode would be considered invalid in light of
Section 35(3).
Joginder Kumar v. State of U.P., AIR 1994 SC 1349
1. Arrest of a person should not be merely on suspicion about the person‟s complicity in the
crime and the Police Officer must be satisfied about the justification of such arrest on the
basis of some investigation.
2. Arrest should normally be avoided except in cases of heinous crimes. Reasons for arrest
must be recorded by police officer in his case diary.
3. An arrested person being held in custody is entitled, if he so requests to have one friend,
relative or other person who is known to him or likely to take an interest in his welfare
told as far as practicable that he has been arrested and where he is being detained.
4. Police officer should inform the arrested person when he is brought to the police station
of this right.
5. An entry shall be required to be made in the diary as to who was informed of the arrest.
These protections from power must be held to flow from Articles 21 and 22(1) of the
constitution and must be enforced strictly.
It should be the duty of the Magistrate before whom the arrested person is produced, to
satisfy himself that these requirements have been complied with.
B. D.K. Basu v. State of W.B, AIR 1997 SC 610
1. The police personnel carrying out the arrest and handling the interrogation of the
arrestee.
2. To bear accurate, visible and clear identification and name tags with their designations.
3. Prepare a memo of arrest at the time of arrest to be attested by at least one witness.
4. To notify time, place of arrest and venue of custody of the arrestee to relative or friend.
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5. To make the arrestee aware of this right to have someone informed of his arrest.
6. To make entry in the diary regarding the arrest and also disclose the name of the next
friend of the person who has been informed of the arrest and the names and particulars of
the police officials in whose custody the arrestee is.
7. At the request of the arrestee to examine at the time of his arrest and record major and
minor injuries, if any at that time; and to prepare “inspection memo” in this regard to be
signed both by the arrestee and the police officer.
8. Medical examination of arrestee by trained doctor every 48 hours.
9. Copies of all the documents including the memo of arrest to be sent to the illaqa
magistrate.
10. Permission to meet his lawyer during interrogation.
11. Police control room to be informed at all district and state headquarters regarding the
arrest and the place of custody.
12. There is a battle between the law makers and the police and it seems that the police has
not learnt its lesson. The police has not come out of its colonial image. The need for
caution in exercising the drastic power of arrest has been emphasized time and again by
the court but has not yielded desired result.
13. S. 41 (1)(b)(ii) provides that arrest for any offence punishable less than or upto 07 years
can be made only on the following satisfaction:
14. To prevent such person from committing any further offence;
15. For proper investigation;
16. To prevent disappearance or tampering of evidence;
17. To prevent inducement, threat or promise to the witness and thereby dissuading the
person from disclosing the evidence to court or police;
18. To ensure the presence of the person in court;
19. Police Officer shall record such reasons in writing both for making an arrest or not
arresting the person.
ARNESH KUMAR V STATE OF BIHAR
Wide power of police officer for purpose of arrest and investigation. 8 guidelines were issue.
The arrest couldn’t be automatic in nature. Prior notice to be give before arrest, if
punishment is below 7 years. Need to follow mandatory procedure.
