Arrest by Police in cyber crime cases

By Adv (Dr.) Prashant Mali

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 cast scars forever. Its deprivation is a matter of grave concern.

The law of arrest is one of balancing individual rights, liberties and privileges,on the one hand, and individual duties, obligations and responsibilities on the other.

The police officer can, without an order/warrant from a Magistrate, arrest a person in respect of a cognizable offence punishable with imprisonment exceeding 7 years without mentioning any 'special reasons'.

The problem arises when it comes to arrest of a person who is accused of an offence which is punishable 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 the 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 of the magistrate and while performing such function, the magistrate has to satisfy himself/herself that there are reasonble grounds to justify the remand of the accused.

Arrest in case of a cognizable offence punishable with imprisonment for more than 7 years.

The police officer can, without a warrant from a Magistrate, arrest a person without mentioning any 'special reasons'.

Arrest or Notice in case of a cognizable offence punishable with imprisonment not exceeding 7 years.

When the accused can be arrested without issuing 41-A Cr.P.C Notice.

When a cognizable offence is committed in the presence of a police officer (Sec.41(1)(a) Cr.P.C)

If the police officer is satisfied that arrest of the accused is necessary to prevent the accused from committing any further offence (Sec. 41(1)(i)(ii)(a) Cr.P.C)

To prevent the accused from tampering with the evidence (Sec.41(1)(i)(ii)(c) Cr.P.C)

To prevent the accused from making any inducement, threat, or promise to the witness (Sec.41(1)(i)(ii)(d) Cr.P.C)

If the police officer is satisfied that unless the accused is arrested, his/her presence cannot be secured. (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/contraband found in possession of the accused (Sec.41(1) proviso (d) Cr.P.C)

When the accused obstruct the police officer from discharging his/her duty, or when the accused has escaped or attempts to escape. (Sec.41(1) proviso (e) Cr.P.C)

When it appears that the person is deserter from any of the armed forces. (Sec.41(1) proviso (f) Cr.P.C)

When it is required to issue notice u/s 41-A Cr.P.C.

Where the arrest of the accused is not required as per Sec. 41 Cr.P.C, the police officer shall issue a notice directing the accused to appear before him/her at the place specified in the notice (Sec.41-A (1) Cr.P.C)

Such notice is to be issued to the accused within two weeks from the date of institution of the case. However the same may be extended by the superintendent of the police of the district. (Arnesh Kumar case)

It shall be the duty of the accused to to comply with the terms of notice. (Sec.41-A (2) Cr.P.C)

Arrest even after issuance of notice u/s 41-A Cr.P.C

When arrest is not Justifiable after issuance of notice u/s 41-A Cr.P.C

Where the accused complies and continue to comply with the terms of the notice. (Sec.41-A 93) Cr.P.C)

When arrest is Justifiable after issuance of notice u/s 41-A Cr.P.C

For the reasons to be recorded, the police officer is of the opinion that the arrest of the accused is necessary in the circumstances of the case. (Sec. 41-A (3) Cr.P.C) Where the accused fails to comply with the terms pf the notice. (Sec. 41-A (4) Cr.P.C)

The apprehension of arrest does not completely vanish away on the issuance of the notice u/s 41-A Cr.P.C. (Sri Ramappa @ Ramesh Vs. The state of Karnataka 2021 (4) Kant LJ 696 dt 22.06.2021)

The rejection of anticipatory bail need not result in the arrest of the accused.

(M.C. Abraham Vs. State of Maharashtra ((2003) 2 SCC 649)

Law mandates the police officer to state the facts and shall record the reasons for the arrest of accused in writing by way of a Check-list. The Magistrate while authorizing detention of the accused shall pursue the report and check-list produced by the police officer and only after recording his/her satisfaction, the Magistrate has to authorize detention. (Arnesh Kumar case)

If the Magistrate finds that the arrest of the person was in flagrant violation of the procedure, the Magistrate can even release the arrstee by recourse to Section 59 Cr.P.C. Therefore, it is not as if an arrest becomes a fait accompli however illegal it may be, and the Magistrate mechanically and routinely orders remand.

Adv Prashant Mali, PhD in Cyber Law and Cyberwarfare

Prashant Mali, is a famous International Cybersecurity, Cyber Law and Privacy Expert Lawyer. He practices in cybercrime, Data Protection Law, AI, Blockchain, Fintech, Ecommerce, Financial & EOW crimes, Privacy Law, Trademarks, Copyright, Consumer & Electronic Evidence. A Practising Bombay High Court Lawyer & Legal Counsel in Mumbai, India. He is country's only technology lawyer with prior working experience in the IT Industry and then in Law Field with Qualifications as Masters in Computer Science (M.Sc.), Masters in Law (LLM), Ph.D. in International Cyber Law & Cyber Warfare, certified Computer Forensics Expert (CCFP). He has 22 years of experience. He is a published author and has authored 8 books on Cyber Law, Cyber Crime, Privacy Law, GDPR and has written articles in all leading magazines and newspapers of India & Interviewed by Television News Channels Cyber Terrorism and International Law, He is also Chevening (UK) Cyber Security Policy Fellow for 2015. He is a participant of IVLP (USA) for Linking Digital Policy to Cyber Crime Enforcement.