When the rigid application of the letter of the law appeared contrary to common sense, Bumble, a character in Charles Dickens’ Oliver Twist, likened it to an ass. The provisions for arrest in the Indian statutes, namely in the Criminal Procedure Code 1973 or the Bharatiya Nagarik Suraksha Sanhita 2023 from 1 July 2024 and the Prevention of Money Laundering Act 2002, are susceptible to such an unsavoury comparison for inbuilt contradictions.
In a series of recent judgments, the Supreme Court of India has interpreted that in cases under the Prevention of Money Laundering Act 2002, which attracts a punishment of imprisonment up to seven years, the accused cannot be issued a notice under Section 41A of the CrPC to join investigation without being arrested.
In ‘V. Senthil Balaji vs. The State’, the SC held that the PMLA is a special Act, a sui generis legislation, and it has its own mechanism for dealing with arrests in the light of its objectives. Arrests are only made after complying with the relevant provisions, including Section 19 of the PMLA 2002, which empowers ED officials to make arrests. In another judgment, the Supreme Court held that the officers of the Enforcement Directorate are not police officers. Therefore, it can be deduced that the provision of arrest in CrPC is applicable to a police officer.
The law of arrest in CrPC was amended in 2010 to check the indiscriminate use of power by the police and to bring in a balance between an individual’s right to liberty and the effective maintenance of peace and order in society.
A novel procedure was introduced whereby for cognizable offences, where the quantum of punishment is up to seven years, the investigating officer should issue a notice to the suspect under section 41A of the CrPC to appear before him; and as long as the suspect joins the investigation, he need not be arrested. This procedure was introduced taking cues from the Supreme Court decision in ‘Joginder Kumar vs. State of UP (1994)’, and Royal Commission on Criminal Procedure 1978-1981 (chairman Sir Cyril Philips) report and as recommended by the 177th report of the Law Commission (under chairman B.P Jeevan Reddy)
Enforcement of these provisions has given relief to thousands from unnecessary arrests and prevented the clogging of prisons. In a small number of cases, arrests can be made after recording in writing the reason, as enumerated in sub-section (b) of Section 41(1) of CrPC. The new criminal procedure code, The Bharatiya Nagarik Suraksha Sanhita 2023 contains similar provisions under Chapter V—Sections 35 to 62.
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Court’s clarification required
The first way common sense is betrayed is by the strict application of the power of arrest in the offence of money laundering.
PMLA 2002, with its procedure to arrest under Section 19, came into force in the year 2005 to prevent money laundering, facilitate recovery, and penalise offenders of an economic offence. Except for certain offences related to narcotic drugs and psychotropic substances, the maximum prescribed punishment is seven years under PMLA. Economic offences have been defined in section 111 of the Bharatiya Nyaya Sanhita 2023. However, the severity of the punishment for such offences has not changed in the new code. The Banning of Unregulated Deposit Schemes Act 2019 also provides for imprisonment of up to seven or 10 years.
Individual liberty is probably one of the most important fundamental rights and with this ideal in mind, the police powers of arrest were curtailed in cases attracting a maximum of seven years of imprisonment.
Therefore, if the offence of money laundering of the proceeds of an offence scheduled in the PMLA Act 2002 is such a grave economic offence, then maximum punishment should be enhanced by a suitable amendment. Otherwise, the act of arrest under the said special law, even if it’s by the ED, should have the same litmus test as provided for in the amended CrPC and now in The Bharatiya Nagarik Suraksha Sanhita 2023.
Another misalignment of intention and outcome in the law of arrest lies in the amendment itself. Inserted subsection (b)(ii) of Section 41 of the CrPC narrates a list of five conditions, one or more of which must exist to cause an arrest in the case of offences attracting up to seven years of imprisonment.
One of these conditions is to prevent the suspect from committing any further offence. Two other conditions are to prevent the suspect from tampering with evidence or influencing the witness.
But many offences attracting up to seven years imprisonment are bailable offences. Therefore, even after applying one or more of these conditions, the suspects are given bail by the police officer. Once released on bail immediately after arrest, the reason mentioned by the police officer in the memo of arrest gets revived. For example, if the reason taken was possibility of tampering with the evidence, then once the suspect is released by the police on bail, he becomes free again to tamper with the evidence quietly. Forfeiture of bail bonds can only be invoked after the damage is done.
The Supreme Court judgment in ‘Arnesh Kumar vs. State of Bihar 2014’ mentions that once arrested, the person and the case diary mentioning the reason for arrest should be produced before the magistrate. That means the practice of giving bail at the police station or the place of arrest in a bailable offence may not be what was intended by those who framed the amended law.
The third ambiguity that needs to be discussed is the provision of issuing a notice of appearance under Section 41A (section 35(3) in the Bharatiya Nagarik Suraksha Sanhita). Such a notice is issued to the suspect whose arrest is not required while investigating a cognizable offence.
Section 41A was inserted in the CrPC with the same amendment that curtailed the power of arrest in cases up to seven years of imprisonment. The language of this provision is akin to that of Section 41(1)(b) of the CrPC. The section deals with arrest in cases attracting seven years imprisonment.
The 177th report of the Law Commission suggested issuing a notice of appearance in cases of offences punishable with imprisonment of seven years or less, where the arrest of the accused is found not necessary, but his cooperation or presence is required for the purposes of investigation.
However, one interpretation suggests that in economic offences, notices under Section 41A CrPC (Section 35(3) BNSS,2023) can also be issued to suspects of grievous offences attracting punishments of imprisonment for more than seven years if the police do not intend to arrest that person. But there is a catch, as highlighted in the Bombay High Court order in the bail matter of the former CEO of ICICI Bank. If a suspect of an offence punishable by imprisonment for more than seven years is issued a notice under Section 41A CrPC (Section 35(3) BNSS,2023) and that person joins the investigation, then that person cannot be arrested without recording the reason for arrest.
And that reason cannot be non-cooperation with the investigation. Refusal to confess is also deemed non-cooperation with the investigation.
Earlier, suspects were also issued notices under Section 160 of the CrPC (which outlines a police officer’s power to require attendance of witnesses) and a few of them were even arrested based on the evidence against them. The Bharatiya Nagarik Suraksha Sanhita 2023 also, as per section 180(2), protects a summoned witness from making a confession in reply to a question asked by a police officer. Therefore, the notice under section 160 of the CrPC,1973 or under section 180 of the BNSS,2023 is not strictly limited to witnesses only, because, in the case of a witness, such a provision is uncalled for. It underlines the lack of clarity in the notices of appearance that are issued to the suspects and the witnesses in the criminal procedure code, in the past or at present.
As the new criminal procedural law has come into force, all the issues discussed above leave gaps that now can only be filled in the future by the constitutional courts. Till then, common sense and literal interpretation may be at odds and not so infrequently.
Pankaj Kumar Srivastava is an Indian Police Service officer (1992, MP cadre). He is presently working as Additional DG STF, MP. Views are personal.
(Edited by Theres Sudeep)