Law of Arrest in India

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Life and liberty may be sacred freedom of our sanctified Constitution under Article 21, but it's been hampered by the exploitation, done by the police, of the already vast powers given to them by the Code of Criminal Procedure (Cr.P.C) enacted by the Parliament in 1973. A widely discussed and contentious issue has been the constant abuse of private liberty and constitutional rights by the govt through their own retained rights for the apparent 'protection of the public'. Media and court records display instances of such abuse by the police force; the identical force that has been tasked because the keepers of our peace and protectors against evil.

It was very aptly recorded within the case of R.P. Kapur v. the State of Punjab that it's not strengthening the prosecution case that a lawman must do but rather their objective in an investigation should be supported unravelling the reality. These corrupt practices are the results of an awfully natural but unhealthy human emotion of greed. Officers could be chasing extorted money, service rewards, good looking arrest statistics or personal vendetta which has created a reputation that even the honest individuals of the Force must bear on their shoulders which ends in an exceedingly decreasing level of trust from the general public.

Cr.P.C contains the arrest power provided to the law enforcement officials like an arrest without a warrant (section 41), arresting someone who fails to spot themselves and their place of residence, search of a premises where the arrested entered or is believed by the officers to possess entered, seizing personality such weapons so on. Cr.P.C is additionally flexible in terms of the discretion to arrest someone for several sorts of offences like bailable, non-bailable, cognizable, and non- cognizable offences. An issue which will be recognized through a careful perusal of Cr.P.C is the existence of vague and really general language when it involves conditions and pre-requisites for arrests. Words like reasonable and credible suspicion or investigation before an arrest is extremely subjective in nature and may, in reality, provide the lawman vast discretion.

A consultation paper by the Law Commission in 2001 stated that nearly 60% of the arrests made are unnecessary and uncalled for and quite 40% of the jail expenditure within the country is thanks to such arrests. The Hon'ble Supreme Court within the case of Joginder Kumar v. State of U.P observed: "The National Police Commission in its Third Report pertaining to the standard of arrests by the police in India mentioned power of arrest in concert of the chief sources of corruption within the police. Such practices led to the amendment of Cr.P.C in 2009 which came into effect in 2010 and resulted in an exceedingly drastic reduction within the powers of the Police when it involves offences which carry a sentence of but 7 years. Article 41 (A-C) was put to blame for protecting this amendment and changes made by adding several prerequisites and strict formalities to the method when it involves such offences. These offences might include assault, kidnapping, cheating, forgery accusations and so on.

In the case of M.C. Abraham v. The State of Maharashtra, the honorable Supreme Court of India reiterated that arrests must be made very cautiously and by following the right procedure. It's not mandatory for the police to create such arrests within the above-mentioned circumstances although exceptions are made if the police are able to justify that the accused is probably going to abscond, or tamper with witness and/or evidence.

Arnesh Kumar v. The State of Bihar may be a landmark judgment, which was pronounced by the Apex Court because it imposed further checks and balances on the powers of the police before an arrest under section 498-A of Cr.P.C is often done which deals with dowry cases. The court held that:

No arrests should be made on the premise of the offence being non-bailable and cognizable. The style of the arrest mustn't be casual and support a mere allegation made against an individual. The arrest should be preceded by initial investigations by the officer to assess the genuineness of the complaint.

Proper facts and reasons should be presented before a Magistrate by the officer affecting the arrest within 24 hours of the arrest. The Magistrate successively is to be satisfied that the condition precedent for arrest under Section 41 Cr.P.C has been satisfied and it's only thereafter that he will authorize the detention of an accused.

Police officers must make sure that they do not arrest accused unnecessarily and Magistrate don't authorize detention casually and mechanically. The policeman shall be given a checklist for arrest that come under section 41 of the CrPC and that they shall forward the checklist duly filed and furnish the explanations and materials which necessitated the arrest.

On top of arrest powers, the choice to not arrest an accused must even be forwarded to the Magistrate within time period from the date of the institution of the case with a Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be responsible for departmental action by the suitable state supreme court.

Not only Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, but this judgement will apply to all or any matters where offence is punishable with imprisonment for a term which can be but seven years or which can touch seven years; whether with or without fine.

The Bench consisted of Justice Chandramauli Kuamr Prasad and Justice Pinaki Chandra Ghose and that they very aptly summarized the problems with the system with the subsequent statement:

"Arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers understand it, so also the police. there's a battle between the lawmakers and therefore the police and it seems that the police has not learnt its lesson: the lesson implicit and embodied in CrPC. It's not the start of its colonial image despite six decades of Independence; it's largely considered as a tool of harassment, oppression and surely not considered a devotee of the general public. The requirement for caution in exercising the drastic power of arrest has been emphasized time and again by the courts but has not yielded desired results. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to test it. Not only this, the facility of arrest is one among the lucrative sources of police corruption. The attitude to arrest first so proceed with the remainder is despicable. it's become a handy tool to law enforcement officials who lack sensitivity or act with an oblique motive."

On paper this looks like a discovery to a more accountable force but in practice, it's faraway from the case. The amended provisions of Cr.P.C and also the directions issued by the Supreme Court weren't being abided by the cops and also the non-compliance has had consequences like the Dr. Rini Johar v. the State of Madhya Pradesh where Justice Dipak Misra and Justice Shiva Kirti Singh called out the officers in question and their disregard of the law and private liberty while ruling in favor of the petitioners and awarding a combined compensation of 10 lacs. There seems to be a scarcity of education amongst the police departments of varied states on the amended arrest powers and cause a curtailed awareness amongst the officers and land them in trouble.

An alternate argument has been presented by the petitioners in social policy Forum v. The Union of India which has basically kicked off the shackles on the police's arrest powers on dowry matters and given them wide discretion. The legislative intent behind the dowry provision in Cr.P.C is seemingly being diluted if powers of the police remain limited and under strict supervision and cases like the Dr Rini Johar judgment has made the police hesitant to entertain such FIRs. The author believes that this can be one among the best ways to harass under the protection of the laws, also adding the aspect of police corruption and oppression to the combination.

The police has not learnt a thing within the past 140 years and seems to keep up its identity of being a brash and spoilt unit that seems to take advantage of their extensive rights over the citizens of this Republic for his or her own personal gain and in complete contrast to the law. The justice system seems to be unaware of this issue while being attentive to it through the assorted crime statistics presented time and again. Physical freedom of a private is an unparalleled right which does not seem to mean anything to those parties which displays a general lack of social conscience and ends up in an additional trust deficit within the justice system which might cause further issues like non-reporting of crimes and also the gradual extinction of fine Samaritans. 

Therefore, an enormous overhaul within the education provided to the law enforcement agency is required, justice system needs a way of realization of this issue and also the introduction of a scientific system to keep up accountability is required as soon as possible to retain the last remaining drops of trust and eventually come on par with the less corrupt forces round the world.