Power of Arrest – Supreme Court to Police and Magistrates

Police Officers making unjustified arrests and Magistrates ordering detention without recording reason are liable for departmental action and punishment under contempt of court proceedings. As per directives of Supreme Court, both Police and Judicial Magistrates are under an obligation to ensure that no unreasonable, unjustified detention or arrest is effected.

These directions are applicable to all cases where offence is punishable with imprisonment for a term less than or equal to 7 years, whether with or without fine.

power-of-arrest-supreme-court-to-police-and-magistrates

Through these directions the Supreme Court has brought more clarity, removing almost all traces of confusion (if any), in a bid to prevent harassment of accused persons including unnecessary curtailment of their liberty.

Compliance with said directives would ensure that Magistrates do not authorise detention of accused persons casually and mechanically.

Supreme Court directions dated 2nd July 2014

(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;



(6) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

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Source: Arnesh Kumar vs State of Bihar & Anr. Criminal Appeal No. 1277 of 2014, SLP (CRL.) No. 9127/2013

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