A n n e x u r e I I I LAW COMMISSION OF INDIA CONSULTATION PAPER ON LAW RELATING TO ARREST PART I LAW OF ARREST 1.1 Chapter five of the Code of Crim inal Procedure, 1973 deals with the arrest of persons. Section 41 is the m a in section providing for situations when Police m a y arrest without warrant. It reads as follows: “41. W h en police m a y arrest without warrant.- (1) Any police officer m a y without an order from a Magistrate and without a warrant, arrest any person- a) who has been concerned in any c ognizable offence, or against whom a reasonable com p laint has been m a de or credible inform ation 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 pers on, any im plem ent of house-breaking; or c) who has been proclaim ed as an offender either under this Code or by order of the State Governm e nt; or d) in whose possession anything is found which m a y reasonably be suspected to be stolen property and who m a y reasonably be suspected of having com m itted an of f e nce with ref e rence to such thing; or e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attem p ts to escape, from lawful custody; or 1 f) who is reasonably suspected of bei ng a deserter from any of the Arm e d Forces of the Union; or g) who has been concerned in, or ag ainst whom a reasonable com p laint has been m a de, or credible inform ati on has been received, or a reasonable suspicion exists, of his having been concerned in, any act com m itted at any place out of India which, if com m itted in India, would have been punishable as an offence, and for wh ich 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, com m its a breach of any rule m a de under sub-section (5) of section 356; or i) for whose arrest any requisition, whether written or oral, has been received from another police offi cer, provided that the requisition specified the person to be arrested and the offence or other cause for which the arrest is to be m a de a nd it appears therefrom that the person m i ght lawfully be arrested without a warrant by the officer who issued the requisition. 2. Any officer in charge of a police station m a y, in like m a nner, arrest or cause to be arrested any person, belonging to one or m o re of the categories of persons specified in section 109 or section 110.” 1.2 Section 42 specifies yet another situa tion where a police officer can arrest a person. According to this sec tion if a person com m its an offence in the presence of a p o l i c e o f f i c e r o r where he has been accused of com m itting a non-cognizable offence and refuses, on dem a nd being m a de by a police officer to give his nam e and residence or gives false nam e or residen ce, such person m a y be arrested but such arrest shall be only for the lim ited purpose of ascertaining his nam e and residence. After such ascertaining, he shall be released on executing a bond with or without sureties, to appear before a m a gistrate if so required. In case the nam e and residence of such person cannot be ascertained within 24 hours from the date of arrest or if 2 of f i cers in charge of police station to report to the specif i ed authorities of arrests m a de without warrant within their jurisdic tion and of the fact whether such persons have been adm itted to bail or not. Secti on 59 says that no person arrested by a police officer shall be discharged except on his own bond or bail or under the special order of the m a gistrate. Section 60, which is the last section in the chapter, em powers the person having the lawful custody to pursue and retake the arrested person if he escapes or is rescued from his custody. 1 . 4 Practical aspects of sections 41 and 42, CrPC .- A reading of the above provisions and, in particular, of Sections 41 and 42 shows the widt h of the power of arrest vested in police officers. Take for exam ple, the ground in clause (b) of Section 41. It em powers a police officer to arrest a person who is in possession of “any im plem ent of house breaking” and the burde n is placed upon that person to satisfy that possession of such im plem ent is not w ithout “lawful excuse”. W h at does an “im p lem e nt of house breaking” m ean? Any iron/steel rod or any im plem ent used by way-side repairers of punctured tyres can also be used for house breaking. Sim ilarly, clause (d). Any person found in possession of stolen property “and who m a y be reasonably suspected of having com m itted an offence w ith reference to such thing.” W h at a wide discretion? W hy, take clause (a) itself. The situations covered by it a r e : ( i ) a p e r s o n w h o i s “ c o n c e r n e d i n any cognizable offence”, (ii), a person against whom a r e a s o n a b l e c o m p laint is m a de that he is “concerned in a cognizable o f f e n c e ” ; ( i i i ) a p e r s o n a g a i n s t w h o m “credible inform ation” i s r e c e i v e d showing that he is “concerned in any cognizable o f f e n c e ” a n d ( i v ) a p e r s o n w h o i s r e a s o n a b l y suspected of being “concerned in any cognizab le offence”. The generality of language and the consequent wide discreti on vesting in police officers is indeed enorm ous – and that has been the very source of abuse and m i suse. The qualifying words “reasonable”, “credible” and “reasona bly” in the Section m ean nothing in practice. They have becom e redundant; in effect. 4 1.5 W i der powers of arrest under section 151, CrPC .- Added to these provisions are the preventive provisions in the Code of Crim inal Procedure which em power the police to arrest persons. Section 151 em pow ers a police officer to arrest any person, without orders from a Magistrate and wit h o u t w a r r a n t , “ i f i t a p p e a r s t o s u c h o f f i c e r ” that such person is designing to com m it a cognizable offence and that the com m i ssion of offence cannot be prevented otherwise. W e do not think it necessary to em phasise the width of the power. It m a y be true that the satisf action of the police officer contem plated by the expression “if it appears to such officer” is not subjective but is objective but in India, police offi cers m a king a wrongful arrest whether under section 41 or 151, are seldom proceeded agai nst – m u ch less punished. There are too m a ny risks involved in doing so. 1.6 Large num ber of persons arrested under sections 107 to 110, CrPC .- There is yet another category viz., sections 107 to 110 of the Code of Crim inal Procedure. These sections em power the Magistrate to call upon a person, in situations/circum s tances stated therein, to execute a bond to keep peace or to be on good behaviour. These provisions do not em pow er a police officer to arrest such persons. Yet, the fact rem a ins (a fact bor ne out by the facts and figures referred to hereinafter) that large num ber of persons ar e arrested under these provisions as well. And we are speaking of vast discretion not in a civil service officer but in a m e m b er of arm e d force though technically speaking, it is also a civil service. 1 . 7 C o n s t i t u t i o n a l protection .- Clause (1) of Article 22 of the Constitution which is one of the fundam e ntal rights in Part III, declares that “no person who is arrested shall be detained in custody without ha ving inform ed, as soon as m a ybe, on 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.” Clause (2) of Article 22 says that every person arrested and detained in custody shall be produced before the nearest m a gistrate within a period of 24 hours of such arrest excluding of course the tim e necessary for the journey from the place of arrest to the court of m a gistrate. The clause further 5 declares that no such person shall be detained in custody beyond the said period without the authority of a m a gistrate. Clau se (3) of Article 22 however provides that clauses (1) and (2) shall not apply to an enem y-alien or to a person who has been arrested under any law providing for preventive detention. 1.8 Misuse of power of arrest .- Notwithstanding the safeguards contained in the Code of Crim inal Procedure and the Constitution referred to above, the fact rem a ins that the power of arrest is wrongly and ille gally exercised in a large num ber of cases all over the country. Very often this power is utilized to extort m onies and other valuable property or at the instance of an en em y of the person arrested. Even in case of civil disputes, this power is being resorted to on the basis of a false allegation against a party to a civil dispute at the instance of his opponent. The vast discretion given by the CrPC to arrest a person even in the case of a bailable offence (not only where the bailable offence is cognizable but also where it is non-cognizable) and the further power to m a ke preventive arrests (e.g. under section 151 of the CrPC and the several city police enactm e nts), clothe th e police with extraordinary power which can easily be abused. Neither there is any in-house m echanism in the police departm e nt to check such m i suse or abus e nor does the com p laint of such m i suse or abuse to higher police officers bear fruit except in som e exceptional cases. W e m u st repeat that we are not dealing with the vast discretionary powers of a m e re civil service sim p liciter, we are dealing with th e vast discretionary powers of the m e m b ers of a service which is provided with fir earm s , which are becom i ng m o re and m o re sophisticated with each passing day (which is technically called a civil service for the purposes of Service Jurisprudence) and whose acts touch upon the liberty and freedom of the citizens of this country and not m e rely their entitlem e nts and properties. This is a civil service wh ich is being increasingly m ilitarized, no doubt, to m eet the em erging exigencies. 1.9 Balancing of societal interests a nd protection of rights of the accused .- W e are not unaware that crim e rate is going up in our country for various reasons which 6
Posted on: Sun, 10 Nov 2013 08:45:55 +0000
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