Arrest
Power to arrest is a drastic power which seriously affect personal liberty of a person guaranteed under article 21 of the Constitution. But what is the scope of personal liberty?
Custody, detention and arrest are sequentially cognate concepts. On the occurrence of a crime, the police is likely to carry out the investigative interrogation of a person, in the course of which the liberty of that individual is not impaired, suspects are then preferred by the police to undergo custodial interrogation during which their liberty is impeded and encroached upon. If grave suspicion against a suspect emerges, he may be detained in which event his liberty is seriously impaired. Where the investigative agency is of the opinion that the detainee or person in custody is guilty of the commission of a crime, he is charged of it and thereupon arrested.
Sundeep Kumar Bafna vs. State of Maharashtra, decided by SC on 27 March 2014.
It is clear from Section 57 (of Cr.P.C) that the investigation should be completed in the first instance within 24 hours if not the arrested person should be brought by the police before a Magistrate as provided under Section 167. The law does not authorise a police officer to detain an arrested person for more than 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate Court. Sub-section (1) of Section 167 covers all this procedure and also lays down that the police officer while forwarding the accused to the nearest Magistrate should also transmit a copy of the entries in the diary relating to the case. The entries in the diary are meant to afford to the Magistrate the necessary information upon which he can take the decision whether the accused should be detained in the custody further or not. It may be noted even at this stage the Magistrate can release him on bail if an application is made and if he is satisfied that there are no grounds to remand him to custody but if he is satisfied that further remand is necessary than he should act as provided under Section 167.
CBI vs. Anupam J. Kulkarni, AIR 1992 SC 1768: 1992 (3) SCC 141: 1992 Cr. L. J. 2768.
The Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words 'custody' and 'arrest' are not synonymous terms. Though 'custody' may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences.
Directorate of Enforcement vs Deepak Mahajan (1994) 3 SCC 440: AIR 1994 SC 1775: 1994 SCR (1) 445.
A person can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can, be stated to be in judicial custody when he surrenders before the court and submits to its directions.
Niranjan Singh v. Prabhakar Rajaram Kharote, AIR 1980 SC 785, 1980 SCR (3) 15.
Personal liberty
If civilization is not to perish in this country, as it has perished in some others too well known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy.
Rudul Sah v. State of Bihar,(1983) 4 SCC 141.
The trinity i.e. liberty, equality and fraternity always blossoms and enlivens the flower of human dignity. One of the gifts of democracy to mankind is the right to personal liberty. Life and personal freedom are the prized jewels under Art.19 conjointly assured by Art.20(3), 21 and 22 of the Constitution and Art.19 ensures freedom of movement. Liberty aims at freedom not only from arbitrary restraint but also to secure such conditions which are essential for the full development of human personality.
The principles of liberty, equality and fraternity are not to be treated as separate entities but in a trinity. They form the union or trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality. Equality cannot be divorced from liberty. Nor can equality and liberty be divorced from fraternity. Without equality, liberty would produce supremacy of law. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality would not become a natural course of things. Courts, as sentinel on the qui vive, therefore, must strike a balance between the changing needs of the society for peaceful transformation with orders and protection of the rights of the citizen.
Per K. Ramaswamy J. in Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
Article 21 of the Constitution reads as follows:
"Protection of life and personal liberty.– No person shall be deprived of his life or personal liberty except according to procedure established by law".
Article 21, though so framed as to appear as a shield operating negatively against executive encroachment over something covered by that shield, is the legal recognition of both the protection or the shield as well as of what it protects which lies beneath that shield……. Article 21, however, makes it clear that violation of a law, whether statutory or if any other kind, is itself an infringement of the guaranteed fundamental right. The basic right is not to be denied the protection of "law" irrespective of variety of that law. It need only be a right "established by law".
Per Beg CJ, in Maneka Gandhi vs. Union of India, AIR 1978 SC 597, 1978 SCR (2) 621.
Procedure established by law are words of deep meaning for all lovers of liberty and judicial sentinels. Amplified, activist fashion, 'procedure' means 'fair and reasonable procedure' which comports with civilised norms like natural justice rooted firm in community consciousness, not primitive processual barbarity nor legislated normative mockery.
Madhav Hayawadanrao Hoskot vs. State of Maharashtra, (1978) 3 SCC 552
Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.
Arnesh Kumar vs. State, decided on July 2, 2014 by Supreme Court.
A person's reputation and esteem in society is a valuable asset, just as in civil law it is an established principle that goodwill of a firm is an intangible asset. In practice, if a person applies for bail he has to surrender in Court, and normally the bail application is put up for hearing after a few days and in the meantime he has to go to jail. Even if he is subsequently granted bail or is acquitted, his reputation is irreparably tarnished in society. Often false and frivolous FIRs are filed yet the innocent person has to go to jail, and this greatly damages his reputation in society.
Amarawati vs. State of U.P. (2005) Cri.L.J. 755 (FB): 2005 (1) AWC 416, (2005) 1 UPLBEC 155.
Human rights and retribution.
Art. 22(1) of the Constitution, provides following protection to person arrested:
"No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult , and to be defended by, a legal practitioner of his choice."
The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Similarly complaints about violation of human rights because of indiscriminate arrests are also rising. How to strike a balance between the two?
To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft. The pendulum over the years has swung to the right.
Nandini Satpathy vs Dani, AIR 1978 SC 1025, 1978 SCR (3) 608.
Sometime the the motive to arrest and to deny bail is also in the need to prevent people from indulging in private retribution thereby collapsing the rule of law. It was observed
"No doubt, liberty of a citizen must be zealously safeguarded by the courts; nonetheless the courts while dispensing justice in cases like the one under the TADA Act, should keep in mind not only the liberty of the accused but also the interest of the victim and their near and dear and above all the collective interest of the community and the safety of the nation so that the public may not loose faith in the system of judicial administration and indulge in private retribution. "
Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence or confession often resorts to third degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. A reading of the morning newspapers almost everyday carrying reports of dehumanising torture, assault, rape and death in custody of police or other governmental agencies is indeed depressing. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the creditability of the Rule of Law and the administration of criminal justice system.
D.K. Basu vs. State of West Bengal, (1997) 1 SCC 416.
It is worth quoting the following passage from Police Powers and Accountability (Published in 1986 ISBN: 0709916604, 9780709916604) by John L. Lambert, p. 93:
"More recently, the Royal Commission on Criminal Procedure recognised that 'there is a critically important relationship between the police and the public in the detection and investigation of crime' and suggested that public confidence in police powers required that these conform to three principal standards: fairness, openness and workability."
A realistic approach should be made in this direction. 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; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violator or the law abider; of meeting the challenge which Mr Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore1 Justice Cardozo observed:
"The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Aclams case (People v. Adams2) strikes a balance between opposing interests. We must hold it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass."
10. To the same effect is the statement by Judge Learned Hand, in Fried Re3: "The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten. Perfection is impossible; like other human institutions criminal proceedings must be a compromise."
The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law.
Joginger Kumar vs. State, AIR 1994 SC 1349, 1994 SCC (4) 260.
The National Police Commission in its Third Report referring to the quality of arrests by the police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails. The said Commission in its Third Report at p. 31 observed thus:
"It is obvious that a major portion of the arrests were connected with very minor prosecutions and cannot, therefore, be regarded as quite necessary from the point of view of crime prevention. Continued detention in 'ail of the persons so arrested has also meant avoidable expenditure on their maintenance. In the above period it was estimated that 43.2 per cent of the expenditure in the connected jails was over such prisoners only who in the ultimate analysis need not have been arrested at all."
Power to arrest
Power to arrest any person has been conferred upon Police officers by Section 41 of Code of Criminal Procedure, but only in case of cognizable offences, which reads as under :
"41. When police may arrest without warrant.– (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any persons.
(a) who has been concerned in any cognizable 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; or
(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or
(c) who has been proclaimed as an offender cither under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who being a released convict, commits a breach of any rule made under sub-section (5) of Section 365; or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specified the person to be arrested and the offence or other cause for which the arrest is to be made and it ' appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
(2) Any officer-in-charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in Section 109 or Section 110.
Section 2(c) of the Code of Criminal Procedure defines the cognizable offence as under:
"2(c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without Warrant."
Thus u/s. 41(1)(b) a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, can be arrested by police.
But it has been held that such person cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured.
Arnesh Kumar vs. State, decided on July 2, 2014 by Supreme Court.
Definition of arrest
The procedure for making arrest is given in section 46 of Cr.P.C. which is as under:
"46. Arrest how made.– (1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made."
Thus for the purpose of making arrest, police officer may touch and confine the body of the person arrested. If arrest is resisted, all means necessary can be employed. But unless such person is accused of an offence punishable with death or life imprisonment, use of such means must not result in death of accused person. In other words, use of dangerous weapon or equipments or force can not be used except in case of arrest of a person accused of an offence punishable with death or life imprisonment.
It can thus be also concluded that securing a person and confinement in a secured place constitutes arrest.
Procedure for arrest
While power to arrest was clearly defined in Cr.P.C. as enacted in 1974, it did not provide procedural safeguards to protect unlawful or malicious arrests and harassment. Therefore in 1996 Supreme Court in the case of D.K.Basu directed that the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures :
"(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (Now S.41-B(a))
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by at least one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. (Now S. 41-B(b))
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (Now S. 41-B(c))
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained. (Now S. 41-B(c))
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (Now S. 41-D)
(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board." (Now S. 41-C)
The court further directed for strict compliance of above directives in these words:
"Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render his liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter."
D.K. Basu vs. State of West Bengal, (1997) 1 SCC 416.
Some of above directions are now part of Cr.P.C. vide section 41-A to 41-D,as mentioned in brackets above, which have been inserted by Amending Act No 5 of 2010. Take time to refer to said provisions as well.
Arrest by a private citizen
If a private person witnesses a person committing a non-bailable and cognizable offence or finds an proclaimed offender, s/he can arrest such person and hand him over to the police over or take the arrestee to nearest police station. (Section 43 of Cr.P.C)
Arrest by Magistrate
If an offence is committed in the presence of a Magistrate, he can arrest such person himself or order any person to arrest the offender and subject to provisions relating to grant of bail, remand the arrested person to custody. (S. 44(1) Cr.P.C.)
A Magistrate can also arrest or cause to be arrested any person in his presence in respect of whom the Magistrate is competent to issue a warrant of arrest. (S. 44(2) Cr.P.C)
Arrest of women & children
As may be seen from sub-section (4) of section 46, extracted above, the arrest of women and children (below 15 years of age) can be arrested between sunset to sunrise without permission of the Magistrate. The arrest of children is strictly prohibited under Juvenile Justice Act, and this subject has been dealt with in Chapter 4.
To ensure that the procedure of arrest must be strictly followed, in 2009 a provision by way of section 60-A was added to Cr.P.C. which is as under:
"60A.Arrest to be made strictly according to the Code– No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest."
Police Officers are bound by the provisions of the Code and they cannot be heard to say that, they could have arrested the Petitioner in breach of provisions of the Code in general and sub-section (4) of Section 46 of the Code in particular, since more than 200 bailable/non-bailable warrants are issued against the Petitioner. The Police Officers acting in their official capacity/duties cannot frustrate the legislative intent, which grants protection to woman by virtue of insertion of sub-section (4) to Section 46 of the Code, which in clear words prohibits the Police Officers to effect arrest except there are unavoidable circumstance. Even if unavoidable circumstance exist, only with a prior permission of the Judicial Magistrate, First Class, a woman can be arrested after sunset and before sunrise. It is true that, in exceptional circumstances, in an appropriate case, the arrest of women after sunset and before sunrise may be necessary. However, unless the procedure laid down under sub-section (4) of Section 46 of the Code is followed, no woman can be arrested at the whims and wills of the Police Officers.
Bharati S. Khandhar vs , Maruti Govind Jadhavdecided on 21 December 2012 by Bombay HC (DB).
For breach of law in making arrest in aforesaid case, the State was directed to pay a compensation of Rs.5000/- to the arrestee and a departmental enquiry was directed against the concerned police officers, with further direction to ensure strict compliance of section 46(4) of the Code.
Although, sub-section (4) of Section 46 Cr.P.C. provides that no woman shall be arrested after sun set and before sun rise except in exceptional circumstances and where the police officer effecting arrest after sun set and before sun rise claims existence of some exceptional circumstances, he must obtain the prior permission of the Judicial Magistrate or Special Court within whose local jurisdiction the offence has been committed or the arrest is to be made but it cannot be said that under no circumstances can such requirement be waived. The exigencies of the situation have to be taken into account before it is held that arrest of the woman has been made in contravention of this provision.
In a case it may happen that offence itself is committed after sun set and before sun rise and after undertaking some preliminary investigation involvement of a woman is found in the offence and her immediate arrest is required to be made and practically it is not possible to obtain the prior permission of the concerned Magistrate, in such a situation the arrest of the woman accused cannot be said to be in contravention of the requirement of this provision and it does not amount violation of fundamental right conferred upon such woman under Article 21 of the Constitution of India. It is well settled legal position that personal liberty of a person can be curbed by procedure established by law and Code of Criminal Procedure is one of such procedural law.
Sadhna Upmanyu vs. Station House Officer ACB, 2016 (4) RCrD 388: 2016 LawSuit (Raj) 2094: 2016 SCC OnLine Raj 6502.
However Delhi High Court was called upon to decide the effect of infraction of section 46(4) which provides with arrest of women must be between sun rise and sun set and a women officer must be part of arresting team. Manmohan J. opined that such infraction did not constitute contempt of court and in any case such protest must be made immediately before Magistrate and delay of 1 year rendered the matter infructuous. He opined:
"……….a plea of violation of Section 46(4) Cr.P.C. had not been advanced either at the time of remand or in the first six bail applications filed by accused No.1 Shamsha Begum. The said plea is clearly an after-thought in accordance with the judgment in Rajkumari and Another (supra).
24. In any event, violation of Section 46(4) Cr.P.C. may make the respondents amenable to disciplinary proceedings and/or liable to pay compensation or for accused's immediate release but not for civil contempt as defined under Section 2(b) of the Contempt of Courts Act, 1971. "
Court on its own motion vs. Anil Dureja, decided on 23 December 2016 by Delhi High Court.
Thus a question arises that weather the court has virtually held that the procedural safeguards can be waived by accused person or it did not take action because the accusation was unbelievable?
We can only hope that it is latter. However an arrested person can have no say and burden of proving compliance of law in the matters of arrest can not be placed on accused. The burden of compliance is and must be rested on the arresting officer. See similar observations of Supreme Court in the following case:
State of Uttar Pradesh vs. Ram Sagar Yadav , 1985 (1) SCC 55: AIR 1985 SC 416, 1986 CriLJ 836, 1985 (1) Crimes 344 SC, 1985 (1) SCALE 108, (1985) 1 SCC 552.
Discretion to arrest
The definition of cognizable offence clearly indicates that police officer may "arrest without warrant" and not that he must arrest. The word 'may' in Section 41 of Code of Criminal Procedure cannot, therefore, be interpreted as 'must' or 'shall'.
Amarawati vs. State of U.P. (2005) Cri.L.J. 755 (FB): 2005 (1) AWC 416, (2005) 1 UPLBEC 155.
No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person.
Joginder Kumar vs. State of U.P., AIR 1994 SC 1349, 1994 SCC (4) 260: 1994 Cr LJ 1981.
No automatic arrest
Supreme Court has given following directions to the police officers and Magistrates for strict compliance in all cases involving arrest:
"All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii) (i.e. reasons for arrest);
The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance. "
(italics added)
Arnesh Kumar vs. State, decided on July 2, 2014 by Supreme Court.
The aforesaid directions would prove to be turning point in criminal law justice system in India and would go a long way in safeguarding the liberty of the people.
Reasons for arrest
Art. 22(1) of the Constitution, provides following protection to person arrested:
"No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice."
National Police Commission had recommended as under:
It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines......"
Supreme Court after referring to above recommendations held that the above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. Therefore reasons for arrest must be recorded by Investigating Officer.
Joginder Kumar vs. State of U.P., AIR 1994 SC 1349, 1994 SCC (4) 260.
The High Court of Allahabad also considered the question of arrest of accused and opined that it is not mandatory to arrest every person accused of cognizable offence. The Full Bench of the Allahabad High Court observed as follows:
(1) Even if cognizable offence is disclosed, in the FIR or complaint the arrest of the accused is not a must, rather the police officer should be guided by the decision of the Supreme Court in Joginder Kumar v. State of U.P., 1994 Cr LJ 1981 before deciding whether to make an arrest or not.
(2) The High Court should ordinarily not direct any Subordinate Court to decide the bail application the same day, as that would be interfering with the judicial discretion of the Court hearing the bail application. However, as stated above, when the bail application is under Section 437 Cr.P.C. ordinarily the Magistrate should himself decide the bail application the same day, and if he decides in a rare and exceptional case not to decide it on the same day, he must record his reasons in writing. As regards the application under Section 439 Cr.P.C. it is in the discretion of the learned Sessions Judge considering the facts and circumstances whether to decide the bail application the same day or not, and it is also in his discretion to grant interim bail the same day subject to the final decision on the bail application later.
Amarawati vs. State of U.P. (2005) Cri.L.J. 755 (FB): 2005 (1) AWC 416, (2005) 1 UPLBEC 155.
The gravity of charge and exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.
Siddharam Satlingappa Mhetre vs State of Maharashtra, AIR 2011 SC 312.
No arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. …….Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC.
Arnesh Kumar vs. State of Bihar, decided on July 2, 2014 by Supreme Court.
Duty to inform relatives
Then, there is the right to have someone informed. That right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognised by Section 56(1) of the Police and Criminal Evidence Act, 1984 in England (Civil Actions Against the Police Richard Clayton and Hugh Tomlinson; p. 313). That section provides:
"[W]here a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable except to the extent that delay is permitted by this section, that he has been arrested and is being detained there."
These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognised and scrupulously protected. For effective enforcement of these fundamental rights, the following requirements have been ordered:
1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
2. The police officer shall inform the arrested person when he is brought to the police station of this right.
3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.
It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.
Supreme Court has categorically directed that the above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf and that these requirements shall be in addition to the rights of the arrested persons found in the various police manuals.
Joginder Kumar vs. State of U.P., AIR 1994 SC 1349, 1994 SCC (4) 260.
The aforesaid directions are now part of the Cr.P.C. vide section 41-A to 41-D thereof.
Vexatious Arrests:
Presently the powers of the arrest available to the police give ample scope for harassment and humiliation of persons, prompted by mala fide considerations. In actual practice, several persons who ought to be arrested are let free on account of political influence or other considerations, while harmless persons who need not be arrested at all are often arrested and even remanded to police custody on inadequate grounds. Some mala fide arrests get exposed on habeas corpus petitions filed in High Courts but such exposures are rare compared to the large number of unjustified arrests that take place all the time. NPC has recommended very strict guidelines for making arrests by the police, which should be strictly observed in day-to-day administration by the senior supervisory ranks. However, the State governments are yet to make firm arrangements down the line for observing these guidelines in day-to-day police work.
The NPC also recommended that sections 2(c) and 2(1) of the Code of Criminal Procedure should be amended to remove the emphasis on arrest in the definition of cognisable and non-cognisable offences and section 170 of the Code of Criminal Procedure should be amended to remove the impression that it is mandatory to make an arrest in non-bailable cases.
Report of National Police Commission (1977)
Unfortunately there is no amendment of section 2(c), 2(l) and 170 of Cr.P.C. has been made as yet. The recommendations of Police Commission were given between 1978 to 1983 through its various reports. However in 1994 Supreme Court stepped into fill the vacuum. It observed:
In India, Third Report of the National Police Commission at p. 32 also suggested: "An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.
(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.
(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines......"
The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.
Joginder Kumar vs. State of U.P., AIR 1994 SC 1349, 1994 SCC (4) 260: 1994 Cr LJ 1981.
In our country unfortunately whenever an FIR of a cognizable offence is lodged the police immediately goes to arrest the accused. This practice in our opinion is illegal as it is against the decision of the Supreme Court in Joginder Kumar's case, and it is also in violation of Article 21 of the Constitution as well as Section 157(1), CrPC gives a police officer discretion to arrest or not, but this discretion cannot be exercised arbitrarily.
Amarawati vs. State of U.P. (2005) Cri.L.J. 755 (FB): 2005 (1) AWC 416, (2005) 1 UPLBEC 155.
Read more about it under caption Notice to appear before Police Officer for further directions given to Police and Magistrates to prevent Vexatious Arrests.
Use of Handcuffs:
The threat of putting handcuffs on persons under arrest is another source of corruption and harassment. The following guidelines must be observed:
1. No person shall be handcuffed who, by reason of age, sex or infirmity can be kept in custody without handcuffs.
2. No person arrested on a bailable offence shall be handcuffed, unless for some special reasons, it is believed that he is likely to escape.
3. In cases under judicial custody, court's instructions should be obtained before handcuffing the accused.
4. Under trial prisoners and other accused persons should not be handcuffed and chained unless there is reasonable expectation that such persons will use violence or attempt to escape. The police escort must be sufficiently strong to prevent escape. Whenever any accused is handcuffed, the fact and reasons should be stated in the Sentry Relief Book.
5. In no case should prisoners or accused persons, who are aged and bed-ridden in hospitals, or women or juvenile or civil prisoners, be handcuffed or fettered.
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