A police officer has no definite knowledge or definite information that A is in possession of any implement of housebreaking. Police officer arrests A. Is A’s arrest illegal? Answer with reasons. 

Question: A police officer has no definite knowledge or definite information that A is in possession of any implement of housebreaking. Police officer arrests A. Is A’s arrest illegal? Answer with reasons.

Find the answer to the mains question only on Legal Bites. [A police officer has no definite knowledge or definite information that A is in possession of any implement of housebreaking. Police officer arrests A. Is A’s arrest illegal? Answer with reasons.]

Answer

Before 2008 there was a provision in section 41(1)(b) of CrPC that a person can be arrested if he is in possession without the lawful excuse of any implement of housebreaking. But after the law commission recommendation in its report in 2001, the amendment of Cr.P.C. was done in 2008. The law omission in its report noted the following observation-

Practical aspects of sections 41 and 42, CrPC.- A reading of the above provisions and, in particular, of Sections 41 and 42 shows the width of the power of arrest vested in police officers.

Take, for example, the ground in clause (b) of Section 41. It empowers a police officer to arrest a person who is in possession of “any implement of housebreaking” and the burden is placed upon that person to satisfy that possession of such implement is not without “lawful excuse”.

What does an “implement of housebreaking” mean? Any iron/steel rod or any implement used by way-side repairers of punctured tyres can also be used for housebreaking. Similarly, clause (d). Any person found in possession of stolen property “and who may be reasonably suspected of having committed an offence with reference to such thing.” What a wide discretion? Why take clause (a) itself.

The situations covered by it are: (i) a person who is “concerned in any cognizable offence”, (ii), a person against whom a reasonable complaint is made that he is “concerned in a cognizable offence”; (iii) a person against whom “credible information” is received showing that he is “concerned in any cognizable offence”.

At present, there is no provision in Cr.P.C. on the basis of which a police officer can arrest a person only on the ground that he has in his possession without any lawful excuse, any implement of housebreaking. Thus, in the instant problem, the arrest of A is illegal.

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