“No arrest should be made only because the offence is cognizable and non- bailable and therefore, lawful for the police officers to do so”.
Abuse of power to arrest by the police has been significantly curbed by the Supreme Court in Arnesh Kumar v. State Bihar, where the court highlighted the problems related to hasty arrests by the police.
The Supreme Court had historically remarked in Joginder Kumar Versus State & D.K.Basu v. State of West Bengal, that, the power of arrest is one thing and the justification of its exercise is another. Every man is presumed to be innocent until proven guilty beyond reasonable doubt. Hence, the only justification for making a pre-trial detention is when the accused might commit an offence again or try to intimidate the witnesses or tamper with evidences.
The Court laid down certain guidelines for police officers to follow relating to the arrests made under S. 498A of IPC. The guidelines not only apply to S. 498A of IPC but all cognizable offences having punishment less than or which may extend to seven years, with or without fine. Dealing with Section 41 (1) of the Cr.P.C., which provides for conditions precedent to making arrest, the Supreme Court emphasised that for making an arrest, the police must be satisfied that all the conditions set out in the provision are met. Disregarding the guidelines issued in the case would result in disciplinary and contempt proceedings against the police officers and disciplinary proceedings against Judicial Officers. Even when the arrest would made by the police officer after applying his mind, the detention would have to be authorised by a Magistrate under S. 167 of Cr.P.C. The accused has the right to be produced before the Magistrate within 24 hours (excluding the time for journey) and either get his detention authorised or be set free by the judge.
The Supreme Court further clarified that, even in terms of Section 41 A of the Cr.P.C., where arrest of an accused is not required, the conditions precedent to arrest as envisaged under Section 41 of Cr.P.C. must be complied with and shall be subject to the same scrutiny by the Magistrate. The Supreme Court, in its ruling, further condemned the practice of police mechanically reproducing reasons contained in Section 41 of the Cr.P.C. for effecting arrest in case diaries being maintained by the police officers.
To spell out what this means for a layman :-
In cases that provide for punishment less than seven years, the police cannot arrest the accused unless there is an imperative necessity to make the arrest. The reasons for the same have to be recorded in writing. If the appearance of the accused can be brought for the purposes of investigation and court otherwise, there is no reason to arrest him. The police officer before arresting should pose a question to himself, “why arrest?”.
Hence, the power of arrest is reasonably curtailed. However, if at all the arrest is actually carried out, there are other safeguards already in place:
- Medical Checkup of the accused to rule out police torture;
- Informing the accused why he is arrested and the charges against him;
- Allowing him to talk to his family/friend or lawyer;
- To be intimated that he can get bail if the offence is bailable; (there are some cases that are bailable)
- Only use as much force as is necessary to prevent him from escaping;
- Handcuffing is not permissible unless Magistrate passes a special order;
- As regards women – no arrest between sunset and sunrise; unless by special order and by lady officers;
- To be produced before the area magistrate within 24 hours of arrest;
India’s law on arrest, though fairly evolved, still lacks the desired clarity. The unprecedented rise in the instances of arrest, coupled with high charge-sheeting rate on the one hand and low conviction rate on the other hand, clearly demonstrate the need to check abuse of the power of arrest vested with the authorities in India. The directions issued by the Supreme Court in the ruling provide some respite from the casual/mechanical approach of the authorities in making arrest/authorising detentions on the basis of mere allegations of commission of an offence.
Authored by Risha Narayan
LawUmbrella 