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This article is written by Nidhi Bajaj, of Guru Nanak Dev University, Punjab. The article aims to highlight the stance of the Supreme Court of India in the matter of arrests made in a routine manner including the safeguards evolved by the court to curtail the abuse of power by police.

This article has been published by Sneha Mahawar

Introduction

Arrest brings humiliation, curtails freedom, and casts scars forever.

The Right to Life and Personal Liberty is the most cherished and sacred right of a human being. The Supreme Court of India through its various judgments has widened the scope of this right so as to bring a plethora of rights under the shed of Article 21. Right to Life includes the right to live a life of dignity and not a mere animal existence. However, it is often seen that unjustified arrests are made by the police and innocent people are maliciously prosecuted. Such abuse of power by the police causes irreparable damage to the life, liberty, reputation, and self-esteem of a person. It is trite that just because the police can arrest doesn’t mean that it must arrest. 

In this article, the author will be dealing with the provisions relating to arrest and the stance of the Hon’ble Supreme Court of India on the issue of routine arrests and the safeguards provided against such arrests.

Meaning of Arrest

In simple terms, arrest means depriving a person of his freedom of movement by use of legal authority. According to Black’s law dictionary, ‘Arrest’ means ‘To deprive a person of his liberty by a legal authority or taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand’

Provisions relating to arrest

The law relating to arrests in India is provided under the Code of Criminal Procedure 1973. Chapter V (comprising Sections 41 to 60A) provides for the procedure to be followed by the police while making the ‘Arrest of persons’. For instance, Section 41B of the Code provides for the procedure of arrest and duties of police officers while making the arrest, and Section 60A of the Code lays down that the arrest has to be made strictly in accordance with the provisions of the Code. Some important provisions relating to arrests provided under the Code are as follows: 

Section 41: Circumstances when police may arrest without a warrant

Section 41(1) enumerates the circumstances wherein a police officer can arrest a person without warrant or without any order from a Magistrate, which are given as follows:

  1. Commission of a cognizable offence in the presence of a police officer.
  2. Receipt of a reasonable complaint or credible information against any person by the police officer or the existence of a reasonable suspicion that any person has committed a cognizable offence punishable with imprisonment of less than 7 years or which may extend to 7 years.

In this case, the following conditions are also required to be fulfilled:

  • Based on such complaint, information, or suspicion, the police officer has some reason to believe that such person has committed a cognizable offence
  • A police officer is satisfied that the arrest is necessary-
    • for prevention of the commission of any further offence by such person or
    • for proper investigation of the offence or
    • to prevent such person from causing disappearance of any evidence or tampering with it
    • to prevent him from making any inducement, threat, or promise to any person who is acquainted with the facts of the case to dissuade him from disclosing such facts to the court or the police officer or
    • his presence in the court, whenever required, cannot be ensured except by arresting him

Also, the police officer must record his reasons in writing for making such an arrest. 

  1. A police officer has received credible information against any person pertaining to the commission of a cognizable offence by him and such offence is punishable with imprisonment which may extend to more than 7 years or punishable with the death penalty and the police officer has reason to believe on the basis of the information that such person has committed the offence;
  2. Proclamation as an offender;
  3. Possession of something which may reasonably be suspected to be stolen property and such person (who is found in possession of the thing) may reasonably be suspected of commission of an offence concerning such thing; or
  4. Obstructing a police officer in the execution of his duty, or escaping or attempting to escape, from lawful custody; or
  5. One who is reasonably suspected of being a deserter from Armed Forces of the Union; or
  6. A police officer has received a reasonable complaint or credible information against any person, or a reasonable suspicion exists, that such person is 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 liable to be apprehended or detained in custody in India; or
  7. When a released convict commits a breach of any rule made under Section 356(5); or
  8. The police officer has received a requisition(whether oral or written) for the arrest of any person from another police officer. It is necessary that the requisition specifies the person who is to be arrested and the offence for which the arrest is to be made. It must appear from the requisition that the officer issuing it can lawfully arrest such a person without a warrant.

Section 41(2) provides that no arrest can be made without a warrant or order of a magistrate in case of a non-cognizable offence.

Section 41A: Notice of appearance before a police officer

Section 41A provides for the issue of notice of appearance to the person against whom a reasonable complaint has been made or credible information is received or a reasonable suspicion exists of the commission by him of a cognizable offence in all those cases where the arrest of a person is not required under Section 41(1). Where such a person (to whom the notice of appearance is issued) complies with such notice and continues to do so, he cannot be arrested in respect of the offence referred to in the notice except where the police officer, for reasons to be recorded, is of the opinion that he ought to be arrested. 

Other relevant provisions

  • Section 50 provides that every person arrested without a warrant has to be informed of grounds of arrest and of the Right to Bail.
  • Section 57 provides that a person arrested without a warrant shall not be detained in custody for more than 24 hours. In calculating such a time period, the time necessary for the journey from the place of arrest to the Magistrate’s court is excluded.
  • Section 58 provides that the Officers in charge of police stations are to report the cases of all persons arrested without a warrant to the District Magistrate or the Sub-divisional Magistrate, whether or not such persons have been admitted to bail. 

The point of view of the Supreme Court

The Hon’ble Supreme Court through its various pronouncements has evolved sufficient safeguards to curtail as well as regulate the wide discretionary power of the police to make arrests. Various guidelines have been laid down to prevent the abuse of power by police. Some of the notable judgments in this regard are as follows: 

Joginder Kumar v. the State of U.P. (1994)

In this case, the Supreme Court extensively dealt with the power of arrests and its exercise. This case is also known as ‘guidelines for arrest case’. The Supreme Court endeavoured to create a balance between the rights of an individual and the rights of collective individuals as a society in light of the increasing crime rate and complaints of human rights violations due to indiscriminate arrests over the years. 

Facts of the Case

A 28-year-old lawyer, Joginder Kumar (petitioner) was summoned for enquiries by the SSP, Ghaziabad. The petitioner appeared before the SSP and was accompanied by his brothers. The Petitioner’s brothers were informed that he would be released by evening. However, the petitioner was not released on that day. On the next day, it was informed that the petitioner has to be detained further for enquiries in connection with some case. The petitioner was not produced before any Magistrate. On the third day, the brothers found out that the petitioner had been taken to an undisclosed location. A habeas corpus petition was filed under Article 32 for the release of the petitioner. The Supreme Court issued notices to the Government of Uttar Pradesh and the SSP, Ghaziabad to produce the petitioner and give an answer as to why the petitioner was detained in custody for 5 days without any valid reason. 

Judgment 

The Supreme Court in its landmark judgement held that no arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. A police officer cannot arrest a person just because it is lawful for him to do so as arrest and detention in police lock-up can cause incalculable harm to the reputation and self-esteem of a person. The Court observed that it is both in the interest of protection of constitutional rights and of the police officer himself that no arrest should be made unless the police officer is reasonably satisfied after some investigation that the complaint is genuine and bonafide. The opinion of the Officer effecting the arrest must be based on some reasonable justification that such arrest is necessary and justified. Except in case of heinous crimes, an arrest must be avoided where a police officer has issued a notice to the person to attend the Station House and that he is not to leave the station without permission. 

In order to uphold and protect the fundamental rights enshrined in Articles 21 and Article 22(1) of the Constitution and for their effective enforcement, the Supreme Court laid down comprehensive guidelines, some of which are as follows:

  • An arrested person being held in custody has a right to have one friend, relative or other person informed of the arrest and the place of detention. The arrested person shall be informed of this right when he is brought into the police station.
  • An entry shall be made in the Diary as to who was informed of the arrest. 
  • The reasons for making an arrest have to be recorded in the case diary.
  • It is the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that the above requirements have been complied with.

Siddharth v. the State of Uttar Pradesh & Anr. (2021)

In this case, while dealing with the issue that whether the anticipatory bail application of the appellant ought to have been allowed, the Supreme Court analysed Section 170 of Cr.P.C. and laid down that, ‘Merely because an arrest can be made because it is lawful does not mandate that arrest must be made’.

Facts of the Case

The Appellant (claimed to be a supplier of stone) along with 83 others was sought to be roped in an FIR that was registered seven years ago. The Appellant had joined the investigation process and a charge sheet was also stated to be ready to be filed. Since an arrest memo was issued, the Appellant filed an application before the High Court seeking anticipatory bail. After the High Court rejected his bail plea, the Appellant approached the Hon’ble Supreme Court. The Learned Counsel for the respondent submitted that the trial court takes the view that, unless the person is taken into custody the charge sheet will not be taken on record in view of Section 170 of Cr.P.C. 

Issue

  • Whether it is mandatory to put an accused in custody before the charge sheet can be taken on record under Section 170 of the Cr.P.C.? 

Judgment

While allowing the appeal, the Supreme Court held that Section 170 of the Cr.P.C. does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the charge sheet. Where the accused has cooperated with the investigation and the investigating officer does not believe that the accused will abscond or disobey the summons, the officer is under no compulsion to arrest such accused or produce him in custody. The Court also laid down that the word ‘custody’ appearing in Section 170 of Cr.P.C. does not contemplate either police custody or judicial custody but merely connotes the presentation of the accused before the court by the investigating officer at the time of filing the charge sheet. The Hon’ble court reiterated that if an arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. 

While acknowledging that personal liberty constitutes an important aspect of our constitutional mandate, the Court held that the occasion to arrest an accused during investigation arises in the following circumstances:

  1. When the custodial investigation becomes necessary or 
  2. It is a heinous crime or
  3. Where there is a possibility that the accused might influence the witnesses or 
  4. Accused may abscond

Other relevant case laws

Arnesh Kumar v. State of Bihar (2014)  

In this case, the Supreme Court of India imposed certain checks and balances on the power of police to arrest an accused under Section 498A of the Indian Penal Code, 1860. The Court held that:

  • An arrest should not be made for the sole reason that the offence is non-bailable and cognizable and that it is lawful for the police officer to do so. 
  • The existence of the power to arrest and the justification for its exercise are two very different things. The police officers must be able to justify the reasons for the exercise of such power.
  • No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. 
  • While interpreting Section 41 of Cr.P.C., the Court held that before an arrest is done by a police officer, he should have reason to believe based on information and material that the accused has committed the offence and the police officer has to be satisfied that the arrest is necessary for one or the more purposes as provided under sub-clauses (a) to (e) of clause (1) of Section 41 of Cr. PC.
  • The Court also dealt with Section 167 of the Cr.P.C. and held that before authorizing detention under the said Section, a Magistrate has to be satisfied that the arrest made is legal and is in accordance with the law, and all the constitutional rights of the person. If such arrest does not satisfy the requirements of Section 41 of Cr. P.C, the Magistrate cannot order further detention and must release the accused.
  • The Court also gave the following directions to ensure that the police officers do not make unnecessary arrests and the Magistrates do not authorise detention in a casual manner:
  1. State Governments to instruct the police officers not to automatically arrest on registering a case under Section 498-A of the IPC. They should first satisfy themselves about the necessity for arrest in accordance with the parameters laid down.
  2. A checklist containing specified sub-clauses under Section 41(1)(b)(ii) is to be provided to all the police officers. The police officer has to forward the checklist duly filed and furnish the reasons and materials which necessitated the arrest while producing the accused before the Magistrate for further detention.
  3. Magistrate to carefully peruse the report furnished by the police officer and thereafter record his own satisfaction as to whether further detention is to be authorised. 
  4. The notice of appearance under Section 41A of Cr.PC has to be served on the accused within two weeks from the date of institution of the case, subject to extension of such a time period by the Superintendent of Police of the District for the reasons to be recorded in writing.
  5. If the concerned police officers fail to comply with the directions as laid down, they shall be liable for departmental action and for contempt of court.  
  6. The Magistrate who authorizes detention without recording reasons thereof shall be liable for departmental action by the appropriate High Court.

The Court added that the aforesaid directions shall also apply to all such cases where the offence is punishable with imprisonment which may be less than seven years or which may extend to seven years. 

M.C. Abraham v. the State of Maharashtra(2002)

In this case, the Supreme Court of India held that as the power to arrest is discretionary, the police officer is not always bound to arrest an accused even if the allegation against him is of having committed a cognizable offence. The court also held that as arrest is an encroachment on the personal liberty of a person and affects his status and reputation, the power to arrest has to be exercised with caution and circumspection.

Conclusion

The Supreme Court has laid down, in unequivocal terms, that no arrest can be made in a routine manner. An arrest made in a routine manner violates the fundamental rights of citizens and consequently is against the very fabric of our constitution. Apart from the various Supreme Court judgments, the Code of Criminal Procedure (Amendment) Act, 2008 has also introduced sufficient safeguards to ensure the lawful and cautious exercise of the power to arrest (For instance, Insertion of Section 41A as mentioned above). However, the only lacking aspect is stringent implementation. It is essential that the police be made aware of the confines within which they can exercise their power to arrest and arbitrary exercise of such power should be met with severe consequences.

References


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