Why the arrest of the accused is to be required in a criminal matter, the discretion lies upon the investigating agency to arrest the accused person or not, for custodial interrogation of the accused to find out the reason for the commission of the cognizable offence.
However, if the accused person, before arrest by the investigating Agency, may approach the Hon’ble Court of Ld. Session Judge or the Hon’ble High Court under section 438 of the code, for grant of bail-in anticipation of his arrest in the cognizable offence, and the Courts may grant him/her protection from the arrest, if find that no custodial interrogation is required and he will available for the interrogation in the case and other factors i.e. Gravity of the crime, antecedent, etc. This is also a fundamental right under the constitution of India, whereby the right to movement cannot be infringed without any reasonable acquisition against the person. This is applicable to all cognizable offences irrespective of their imprisonment as a sentence for the offence. Power to arrest in India vested with the Investigating Agency under Section 41 of the Code of criminal procedure (CRPC) 1973 on receiving any information /complaint of the suspicion of a commission of a cognizable offence by the person concerned, provided that the punishment for such offence is less than 7 years or up -to 7 years only.
Section 41 of the Code
A police officer without an order from the Magistrate and without a warrant arrest in person, if the person has committed a cognizable offence, a reasonable complaint made, or credible information, reasonable suspicion exists. Police Officer may also arrest a person who is declared a proclaimed offender by the Court and by the Government, a person found with stolen property, obstruct the police officer in order to discharge their official duty, a deserter from any of the Armed Forces, any act committed at any place out of India which, if committed in India, would have been punishable as an offence.
Protection From illegal Arrest
The main issue is that if a false complaint is made to the police in respect of a cognizable offence, the police may arrest the person unreasonably for an ulterior motive and in order to protect the unreasonable /arbitrary arrest by the Police Officer, the amendment was made in the year 2008, in the code by way of Section 41 A in the Code. Significantly the provision safeguards the offences , where the sentence is either less than 7 years or up to 7 years of imprisonment as a sentence.
Section 41(A) of CRPC 1973
The police officer shall issue a notice for his /her appearance before him or at such place as may be specified in the notice, where his/her arrest is not required. It is the duty /obligation of the notice to appear before the officer without fail, subject to his notice compliance, he /she shall not be arrested for the alleged offences, and in furtherance to that order may be obtained from the competent court.
It may be relevant to add that in case the alleged offences are a non-cognizable offence in nature, no arrest shall be made without an order from the court and even no investigation shall be carried out by the police officer without the permission of the court. In any circumstances, the accused shall be produced before the court within twenty-four hours and thereafter with the permission of the court.
Conclusion
It is crystal clear that no illegal /unreasonable /arbitrary arrest in a criminal matter is permissible without having any reasonable cause to arrest and the lawmaker also made an amendment in the code to strengthen the fundamental right to movement and should not be infringed at any cost and in the same time the Hon’ble Supreme Court has also settled this proposition by pronouncing the judgment tiled Arnesh kumar VS State of Bihar (Ref: https://indiankanoon.org/doc/2982624/) In matrimonial cases, where criminal cases are being filed, for the demand of Dowry before marriage and after marriage, a different part of the country under the various provision of laws and related provisions are imprisonments for less than 7 years sentence; No arrest shall be made without any notice under section 41 A of the code but in the same time protection may be taken from the court; where reasonable apprehension of arrest upon a false complaint of the complainant.
