Augustus Caesar’s advice to make haste slowly was evidently not on the minds of our Lok Sabha MPs when they recently cleared eights bills in only a few more minutes. One of these eight bills, the Code of Criminal Procedure (Amendment) Bill, 2008, has sparked some controversy, inspiring lawyers in Delhi to go on a strike.

The bill introduces several changes to criminal procedure, affecting important issues like hostile witnesses, victim compensation, rape trials and compoundable offences. However, the provision that is at the heart of the controversy fundamentally transforms section 41 of the Code which defines the power of the police to arrest without warrant. The operative paragraph of the original section 41 allowed the police to arrest without warrant any person ‘who has been concerned in any cognisable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned.’ One need not even be suspected of committing the crime to be liable for arrest — merely being ‘concerned’ in a cognisable case made you vulnerable to arrest. The legal power to arrest was so widely defined that there was hardly a category of ‘illegal arrests’ for cognisable offences.

The amendment introduces a new and rationalised section 41. The first change is that the term ‘concerned’ has been dropped. Under the amended provision, only a person suspected of having committed a cognisable offence can be arrested. Secondly, mere existence of a ‘reasonable complaint’ is not enough. The police officer must have ‘reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence.’ Thirdly, if the offence in question is punishable with imprisonment for a period of seven years or less, arrest can be made only when it is ‘necessary’ for prevention of further offence, or to ensure that evidence is not destroyed and the suspect keeps her date with the court hearings. The reasons must be recorded in writing while making the arrest, and if ‘necessity’ cannot be shown, the new section 41A requires the police to issue a notice of appearance instead of arrest.

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