Mumbai: The Bombay High Court has referred key legal questions regarding the procedure of arrest to a larger bench, emphasising the need for clarity on whether the grounds of arrest must be communicated in writing or can be conveyed orally. Additionally, the larger bench will determine whether a prior notice under Section 41A of the Code of Criminal Procedure (CrPC) is mandatory before an arrest in all cases.

A division bench of Justices Sarang Kotwal and SM Modak passed the order while hearing multiple petitions in which the accused sought release on the ground of illegal detention. They contended that the police had failed to comply with mandatory provisions under Section 50 or Section 41A of the CrPC.

Section 50 mandates that police must inform the arrested person of the grounds of arrest. Section 41A provides that, in certain cases, the police may issue a notice to the accused to record their statement instead of making an immediate arrest. The person is not to be arrested unless the police deem it necessary.

The high court acknowledged that a lack of clarity regarding these provisions has led to multiple accused approaching courts, including the high court, seeking bail on grounds of illegal detention. “As legal issues were argued before us, it became more apparent that there is total confusion, particularly among investigating agencies,” the court observed.

It further noted that similar cases were being contested across various courts, raising concerns about conflicting rulings. The court emphasized that the absence of clear legal guidelines was allowing accused persons, including those charged with serious offenses like rape, murder, and crimes under laws such as the Protection of Children from Sexual Offences (POCSO) Act, Maharashtra Control of Organised Crime Act (MCOCA), and Narcotic Drugs and Psychotropic Substances (NDPS) Act, to seek bail based on procedural lapses by the police.

While affirming that the accused have legal rights, the court also stressed the need to balance these rights with those of the victims and their families. “In heinous crimes, the victim and society also suffer. The victim has no control over the efficiency or inefficiency of the investigating officer,” the bench said. It warned that allowing accused persons to walk free due to procedural errors could severely prejudice victims.i

The court observed that lapses in following mandatory arrest provisions may arise from inefficiency or lack of awareness among police officers. However, the consequences of such lapses disproportionately impact victims.

Notably, while Section 41 of the CrPC differentiates between offenses punishable by up to seven years and those exceeding that threshold, no such distinction exists in Section 50 regarding the communication of arrest grounds.

The larger bench will deliberate on key issues, including whether Section 50 mandates the written communication of arrest grounds, whether such communication should occur at the time of arrest or before the first remand, and whether courts have discretion based on the severity of the offense. The bench will also clarify whether a Section 41A notice is necessary in all cases or only in some.

Additionally, the court underscored the need for clear procedural guidelines for magistrates and investigating agencies, particularly regarding the timely provision of remand notes to the accused or their lawyer. The division bench has directed that its order be placed before the Chief Justice for constituting a larger bench of three or more judges to resolve these issues.