It is true that after pronouncement of judgment by the Hon’ble Supreme Court in the case of D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 certain amendments have been made in Chapter V of the Code of which Section 41B is the result.
After insertion of the said provisions, it becomes clear that it is mandatory for the investigating officer to inform the family members of the arrested persons or his friend or relative as desired by the accused.
Section 41B was inserted in the Criminal Code of Procedure by way of Amendment Act 5 of 2009 w.e.f. November 01, 2010 and same is read as under :
Section 41B : Procedure of arrest and duties of officer making arrest .-
“Every police officer while making an arrest shall –
(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;
(b) prepare a memorandum of arrest which shall be –
(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and
(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.”
Bare perusal of Section 41B makes it clear that a duty has been cast on the arresting police official if the memorandum of arrest is not attested by such person as mentioned therein, the arresting officer shall convey the information of the arrest to his relative or friend to whom accused intends to convey the intimation of his arrest.
The object of inserting Section 41B in the Code of Criminal Procedure by way of Amendment Act 5 of 2009 w.e.f November 1, 2010 is to inform the family member or relative/well-wisher of the accused so that they can take appropriate steps to protect the statutory and constitutional rights of the accused.
Implementation of this provision in its letter and spirit may prevent an unscrupulous police official to violate the constitutional and statutory right of the accused.
Thus, this provision is not an ornamental but a mandatory in nature, thus every police official is duty bound by law to comply with the same in its letters and spirit.