Cyber Crime, Arrest, and Personal Liberty

Cyber crime is a reality, but personal liberty is a fundamental human right and a cornerstone of the social structure. Arrest brings humiliation, curtails freedom, and leaves lasting scars. Its deprivation is a matter of grave concern. The law of arrest is one of balancing individual rights, liberties, and privileges on one hand, and individual duties, obligations, and responsibilities on the other.

Arrest in Cognizable Offenses

A police officer can, without an order or warrant from a Magistrate, arrest a person for a cognizable offense punishable by imprisonment exceeding 7 years, without the need for any 'special reasons'.

Arrest for Offenses Punishable Up to 7 Years

The issue arises with arrests for offenses punishable by up to 7 years. The Hon’ble Apex Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, held:

"Our endeavour in this judgment is to ensure that the police officers do not arrest the accused unnecessarily and Magistrates do not authorise detention casually or mechanically."

In Manubhai Ratilal Patel v. State of Gujarat (2013) 1 SCC 314, the Hon’ble Supreme Court observed that remand is a fundamental judicial function, and the Magistrate must ensure there are reasonable grounds for the remand of the accused.

Arrest in Cases Punishable by More Than 7 Years

For cognizable offenses punishable by more than 7 years, a police officer can arrest without a Magistrate's warrant, without mentioning 'special reasons'.

Arrest or Notice for Offenses Punishable Up to 7 Years

When can an accused be arrested without issuing a 41-A Cr.P.C. notice?

• When a cognizable offense is committed in the presence of a police officer (Sec.41(1)(a) Cr.P.C).
• If the officer believes arrest is necessary to prevent further offenses by the accused (Sec. 41(1)(i)(ii)(a) Cr.P.C).
• To prevent the accused from tampering with evidence (Sec.41(1)(i)(ii)(c) Cr.P.C).
• To prevent the accused from inducing, threatening, or promising the witness (Sec.41(1)(i)(ii)(d) Cr.P.C).
• If the officer is convinced that the accused's presence cannot be secured otherwise (Sec.41(1)(i)(ii)(e) Cr.P.C).
• If the accused is a Proclaimed Offender (Sec. 41(1) proviso (c) Cr.P.C).
• When stolen property or contraband is found with the accused (Sec.41(1) proviso (d) Cr.P.C).
• If the accused obstructs a police officer or escapes or attempts to escape (Sec.41(1) proviso (e) Cr.P.C).
• If the person is a deserter from any armed forces (Sec.41(1) proviso (f) Cr.P.C).

Issuance of Notice u/s 41-A Cr.P.C

If an arrest is not required as per Sec. 41 Cr.P.C, the police officer must issue a notice directing the accused to appear at the specified location (Sec.41-A (1) Cr.P.C). This notice should be issued within two weeks of the case initiation, extendable by the district’s superintendent of police (as per the Arnesh Kumar case).

The accused is obligated to comply with the terms of the notice (Sec.41-A (2) Cr.P.C).

Arrest Following Issuance of Notice u/s 41-A Cr.P.C

When is an arrest unjustified after issuing a 41-A Cr.P.C. notice?

• If the accused complies and continues to comply with the notice's terms (Sec.41-A 93 Cr.P.C).

When is an arrest justified after issuing a 41-A Cr.P.C. notice?

• If, with recorded reasons, the police officer deems the arrest necessary (Sec. 41-A (3) Cr.P.C).
• If the accused fails to comply with the notice's terms (Sec. 41-A (4) Cr.P.C).

Apprehension of arrest doesn’t entirely disappear with the issuance of a 41-A notice. (Sri Ramappa @ Ramesh v. State of Karnataka, 2021 (4) Kant LJ 696, dated 22.06.2021)

The rejection of anticipatory bail doesn’t necessitate the accused's arrest. (M.C. Abraham v. State of Maharashtra, (2003) 2 SCC 649)

Mandatory Documentation and Judicial Oversight

The law requires police officers to document the reasons for arrest via a checklist. When authorizing detention, the Magistrate must review the police report and checklist, ensuring all requirements are met. (Arnesh Kumar case)

If the Magistrate finds the arrest procedure violated, they may release the arrestee per Section 59 Cr.P.C., emphasizing that not all arrests are justified or automatic, regardless of procedure.