It is not mandatory for the accused to be arrested automatically upon the lodging of an FIR. Whether it is mandatory that the accused may be arrested after lodging an FIR? I am accused in a criminal case punishable under section 323, 504 IPC. When the offence was committed I was in Mumbai where I’m working in a company. The investigating officer is pressuring my family to call me and produce before the court otherwise an arrest warrant will be issued against me. My parents are afraid and they have bribed him to protect me from possible arrest. Now he is not disturbing me. What is the possibility of arrest in that offence?
Asked from: Uttar Pradesh
The alleged offences are punishable with the imprisonment for a term below seven years. Accused cannot be arrested automatically after lodging of FIR. As per Section 41 of the code of criminal procedure, the investigating officer has to state the reason for arrest. In Arnesh Kumar v. State of Bihar (2014) by the Supreme Court of India laid down important guidelines regarding the arrest of an accused in cases where the offence carries a punishment of up to 7 years’ imprisonment. The judgment emphasised the need for police officers to exercise caution and conduct a thorough investigation before resorting to arrest.
Following the Arnesh Kumar judgment, it is not mandatory for the accused to be arrested automatically upon the lodging of an FIR for offences punishable with up to 7 years’ imprisonment. The police are required to consider factors such as the necessity of arrest for the purpose of investigation, the possibility of the accused fleeing or tampering with evidence, and the seriousness of the offence before deciding on arrest.
However, it’s important to note that there may still be circumstances where immediate arrest is necessary, such as cases involving violence, threat to public safety, or the possibility of the accused fleeing to avoid justice. The judgment of Arnesh Kumar serves to prevent the arbitrary and unnecessary arrest of individuals and encourages the police to prioritise investigation and evidence collection before resorting to arrest.
In Siddharth v. State of U.P., (2021) 1 SCC 676, the Supreme Court emphasised that in the normal and ordinary course of events, law enforcement agencies should refrain from arresting individuals and sending them to jail, especially if it is feasible for the police to conduct the investigation without resorting to arrest, and if the accused cooperates fully with the investigating officer.
Arrest should only be considered in cases of utmost necessity, such as when it is indispensable for the completion of the investigation, for instance, if the individual is required for the recovery of incriminating evidence or weapons, or to gather information about accomplices or circumstantial evidence.
Additionally, arrest may be warranted if the investigating officer or the officer in charge of the police station believes that the accused’s presence is difficult to secure due to the serious nature of the crime, raising concerns about the individual’s potential flight from justice or defiance of legal proceedings.
Personal liberty is a fundamental aspect of our constitutional mandate. The decision to arrest an accused during an investigation is warranted when custodial interrogation is deemed necessary, particularly in cases of serious crimes or when there is a risk of tampering with witnesses or the accused fleeing from justice.
In Joginder Kumar v. State of U.P., (1994) 4 SCC 260 the Supreme Court has emphasised that if arrests become routine, it can inflict immeasurable harm to the reputation and self-esteem of an individual. Accused should not be arrested if the investigating officer lacks reason to believe that the accused will evade the law or defy summons. Where the accused consistently cooperated with the investigation, it is difficult to comprehend why there should be an imperative for the officer to effect the arrest.
In your case the investigating officer has to issue a notice under Section 41A of the code of criminal procedure to secure your appearance during the investigation. Section 41A of the Code of Criminal Procedure (CrPC) pertains to issuance of notice to persons accused of committing offences punishable with imprisonment up to seven years.
This notice serves as an alternative to arrest, therefore, accused cannot be arrested automatically. The purpose of Section 41A is to promote fairness and transparency in criminal proceedings by giving accused individuals an opportunity to cooperate with the investigation without being arrested, particularly in cases where the offence is not serious and does not warrant immediate arrest.
You should immediately file a writ petition in the high court under Article 226 for protection against illegal arrest. The alleged offences are simple and of a private nature. There is no chance of fleeing from court, and there is also no opportunity to tamper with the evidence. Then, the high court may direct the investigating officer not to take any coercive action against the accused i.e. you. Alternatively you can move anticipatory bail application under Section 438 of the code of criminal procedure. For more legal help please visit Kanoon India.
