Recently in a Writ Petition filed by accused for quashing an FIR and staying the arrest of the petitioners for a case registered under Wildlife Protection Act, Allahabad High Court pointed out that:
By the amendment vide Act No. 5 of 2009, which has been notified on 01.11.2010, it has been provided in Section 41(1) (b) Cr.P.C. that a person against whom credible information of being involved in a cognizable offence punishable with imprisonment of 7 years or less is reported to the police officer, the accused can only be arrested if the police officer is satisfied that:
(a) there is probability of the accused committing another offence,
By the amendment vide Act No. 5 of 2009, which has been notified on 01.11.2010, it has been provided in Section 41(1) (b) Cr.P.C. that a person against whom credible information of being involved in a cognizable offence punishable with imprisonment of 7 years or less is reported to the police officer, the accused can only be arrested if the police officer is satisfied that:
(a) there is probability of the accused committing another offence,
(b) for proper investigation of the offence,
(c) to prevent such person from causing the evidence of the offence to disappear or his tampering with the evidence in any manner,
(d) to prevent such person from making any inducement, threat or promise to the witnesses to disclose such facts to the court or to the police,
(e) unless the person is arrested, his presence in court could not be ensured and the police officer has to record the reasons in writing before making such arrest.
Also under the newly introduced provision, section 41 A Cr.P.C. (which has also been added by Act No. 5 of 2009, effective from 1.11.2010), in all cases where the arrest of such an accused is not needed in view of the provisions of section 41 (1) Cr.P.C., the police officer concerned is required to issue a notice directing the accused to appear before him at a specified place and time.
In case the police officer arrests the accused the Magistrate before whom the accused is produced for an order of remand, shall examine the reasons mentioned in the case diary for arresting the accused for satisfying himself that the arrest has been made in accordance with the exceptional circumstances indicated in sections 41(1) (b) and 41 A Cr.P.C described. In case the Magistrate is of the opinion that the arrest has not been made in a bona fide manner, or the grounds for arrest mentioned do not conform with the criteria set out in sections 41(1)(b) or 41 A, or there is no material to substantiate the reasons for arrest, the Magistrate may refuse to remand the accused to custody and may release the accused on personal bond with or without sureties after taking an undertaking from the accused to appear before the investigating officer or the Court when required.
(c) to prevent such person from causing the evidence of the offence to disappear or his tampering with the evidence in any manner,
(d) to prevent such person from making any inducement, threat or promise to the witnesses to disclose such facts to the court or to the police,
(e) unless the person is arrested, his presence in court could not be ensured and the police officer has to record the reasons in writing before making such arrest.
Also under the newly introduced provision, section 41 A Cr.P.C. (which has also been added by Act No. 5 of 2009, effective from 1.11.2010), in all cases where the arrest of such an accused is not needed in view of the provisions of section 41 (1) Cr.P.C., the police officer concerned is required to issue a notice directing the accused to appear before him at a specified place and time.
In case the police officer arrests the accused the Magistrate before whom the accused is produced for an order of remand, shall examine the reasons mentioned in the case diary for arresting the accused for satisfying himself that the arrest has been made in accordance with the exceptional circumstances indicated in sections 41(1) (b) and 41 A Cr.P.C described. In case the Magistrate is of the opinion that the arrest has not been made in a bona fide manner, or the grounds for arrest mentioned do not conform with the criteria set out in sections 41(1)(b) or 41 A, or there is no material to substantiate the reasons for arrest, the Magistrate may refuse to remand the accused to custody and may release the accused on personal bond with or without sureties after taking an undertaking from the accused to appear before the investigating officer or the Court when required.
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