RICHIK DADHICH

1742
UGIV
CRIME AND PUNISHMENT
CA3
ANSWER 1
Arguments for the Appellant
Section 41(1)(ii) of CrPC provides that any police officer may arrest a person without an
order from a Magistrate and without a warrant if he is satisfied that such arrest is necessary to
prevent such person from committing any further offence.

In the present case, it was found during the investigation that the accused was in the habit of
deceiving people and that he was inducing people to part with money stating that there is
hidden treasure in their house and he would trace it out and was thus cheating the public.
Further, it was found that the accused has also cheated similarly other persons in similar
manner and their statements were also recorded. In addition to this, it is important to note that
the accused has also asked Ms. Padma to visit his home on the false pretext of returning the
money, and on her visit, she faced abuse by the accused and his family.

Thus, a direct application of Section 41 can arrest a person even if the imprisonment is less
than seven years if he is satisfied that such an arrest is necessary to prevent the commission
of a further offence. Such conclusion has to be reached on the basis of the facts of each case.

Arguments for the Defendant

At the outset, it must be noted that no arrest shall be made in a routine manner on a mere
allegation of commission of an offence made against the person. In the case of Arnesh Kumar
v. State of Bihar, the Court had held that it must be ensured that the police officers do not
arrest the person unnecessarily in a casual or mechanical way. Further, the officers must look
into the purpose and objective of such arrest and record reasons in compliance with Section
41(1). In addition to this, in the case of MC Abraham v. State of Maharashtra, it has been
held that since an arrest is in the nature of an encroachment on the liberty of the subject and
does affect the reputation and status of the citizen, the power has to be cautiously exercised.

In the present case, the arrest of the accused was flawed on various levels. Firstly, none of the
offences alleged against the petitioner are punishable up to seven years and his arrest was
therefore not necessary. Alternatively, even if the arrest has to be made under Section 41(1)
(ii), it could not be proved that the arrest was done in order to prevent him from committing
any further offence. There is an absence of any other criminal case registered against the
petitioner if really the petitioner is alleged to have cheated other people also like he cheated
allegedly the complainant. Thus, the allegations are vague in nature.

In addition to this, the Court had held in Arnesh Kumar v. State of Bihar that an arrest is a
grave violation of an individual’s constitutional rights and the police office must look into the
questions of why arrest? Is it really required? What purpose it will serve? What object it will
achieve? And only after being satisfied with these conditions, shall proceed to make the
arrest.