When police do not carry out the arrest of an accused person after a First Information Report (FIR) has been submitted, several reasons may underlie this decision. It is crucial for complainants, the public, and all parties engaged in legal matters to comprehend these underlying factors. Various circumstances can influence the police's choice to delay or avoid an arrest, including insufficient evidence, ongoing investigations, or prioritization of more pressing cases.

Additionally, procedural requirements or legal constraints may also play a role. Awareness of these potential reasons can foster better understanding and expectations regarding the legal process, ultimately contributing to a more informed and transparent relationship between police and the community it serves.

Reasons for Non-Arrest of the Accused Person:

Anticipatory Bail: One important factor contributing to the absence of arrests could be that the individual facing charges has applied for anticipatory bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. Anticipatory bail is a legal mechanism that permits a person to request bail in anticipation of being detained for a non-bailable offence. If the accused successfully secures anticipatory bail, law enforcement officials are prohibited from arresting them until either the bail is revoked or the legal proceedings come to a different resolution.

This provision serves as a crucial legal protection aimed at safeguarding individuals from unjust detention and ensuring that their rights are respected and maintained throughout the entirety of the judicial process. By allowing individuals to seek bail proactively, the legal system aims to balance the interests of justice with the rights of the accused, thereby fostering a fair and equitable legal environment.

Non-cognizable Nature of the Offence: If the filed FIR against the accused person leads to the registration of a non-cognizable offense, the police cannot arrest the accused person without an order from the judicial magistrate. Occasionally, the police may file the FIR under a non-cognizable section of the law to reduce the gravity of the offense or for other ulterior motives. This could be done to make the offense appear less serious or to facilitate the accused person in obtaining bail. Additionally, there are instances where a complainant, in collusion with the police, files a complaint of a serious nature in simple cases. This is achieved by incorporating the ingredients of a non-bailable crime through falsification and exaggeration, with the intent to harass the accused person.

Inertia or Inactiveness: Sometimes, inactivity or a lackadaisical attitude on the part of the police may also lead to the non-arrest of the accused person. This can occur due to a lack of motivation, inefficiency, or a general disregard for the seriousness of the case. When police officers do not prioritize their duties or fail to follow up on investigations promptly, it can result in delays or complete inaction in apprehending the accused. Such negligence can undermine the justice system and leave victims without the protection and resolution they deserve.

Police's Assessment of Guilt: Police authorities have the discretion to refrain from arresting a person if they have reason to believe that the individual is not guilty of the crime described in the First Information Report (FIR). In certain situations, initial evaluations or preliminary inquiries conducted by officers may result in the determination that there is inadequate evidence to substantiate the claims made against the accused.

The police have the important responsibility of striking a balance between the pursuit of justice and the adherence to principles of fairness and due process. Should they determine that the accused does not appear to be at fault, they might opt to postpone the arrest until more evidence is collected or until the issue can be addressed in a formal judicial context. This approach underscores the commitment of law enforcement to ensure that actions taken are not only justified but also respectful of individual rights throughout the legal process.

External Pressures and Biases: Police may refrain from arresting an accused individual due to various external pressures and biases. Political influence can play a significant role, where officers might be coerced or incentivized to overlook the arrest. Corruption within the police force can also lead to non-arrest, as bribes may be exchanged to protect the accused. Additionally, if the accused is a prominent or influential figure, the police might hesitate to take action. Furthermore, biases based on caste or communal lines can also influence the decision to arrest, leading to selective enforcement of the law. Sometimes inactivity or lackadaisical attitude on the part of the police may also lead to non-arrest of the accused person.

Ongoing Investigation: One of the main factors that can delay the police from making an immediate arrest of the accused is their ongoing investigation into the matter. When a First Information Report (FIR) is lodged, law enforcement agencies are mandated to undertake a comprehensive inquiry. This investigative process involves several key elements, such as gathering pertinent evidence, interviewing potential witnesses, and thoroughly examining the crime scene. Each of these components plays a vital role in constructing a solid case.

As a result, the police may focus on amassing sufficient evidence to validate the charges against the accused prior to proceeding with an arrest. This careful and methodical strategy not only ensures that the arrest is warranted but also provides a strong basis for the prosecution to effectively advance the case in court. By taking the time to complete these essential steps, law enforcement can enhance the likelihood of a successful outcome in the judicial process.

Lack of Magistrate's Order: Furthermore, the police may face limitations regarding their authority to carry out an arrest, which is largely determined by the characteristics of the offence in question. When an offence falls under the category of non-cognizable, law enforcement officials are mandated to obtain a specific order from a magistrate before proceeding with an arrest.

Non-cognizable offences are generally perceived as less severe in nature and, as such, do not permit police to detain individuals without securing a warrant first. Consequently, if a magistrate's directive is not provided, the police may find themselves obligated to abstain from making an arrest, as they are bound to follow the established legal protocols that govern their operational conduct.

Section 35 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023: Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 outlines the conditions under which police officers may arrest individuals without a warrant. Specifically, any police officer is authorized to make an arrest without a Magistrate's order for individuals who commit a cognizable offence in the officer's presence.

Additionally, arrests may be made if there is a reasonable complaint, credible information, or reasonable suspicion that an individual has committed a cognizable offence punishable by imprisonment for up to seven years. The officer must believe the arrest is necessary to prevent further offences, facilitate proper investigation, preserve evidence, deter tampering with evidence, dissuade inducements or threats to witnesses, or ensure the individual's presence in court.

In cases involving offences punishable by more than seven years of imprisonment, or those subject to a death sentence, police may act on credible information that suggests the individual has committed such an offence. Police can also arrest individuals who have been declared offenders under this Sanhita or by a state order, possess items suspected of being stolen, obstruct officers in their duties, escape or attempt to escape lawful custody, or are suspected deserters from armed forces. Furthermore, individuals implicated in acts committed abroad that would be offences if perpetrated in India, as well as released convicts breaching specific rules, may also be subject to arrest.

For non-cognizable offences, arrests cannot be made without a warrant or Magistrate's order, except as provided in Section 39. If the circumstances do not warrant an arrest under subsection (1), the police officer is required to issue a notice to individuals against whom there is a reasonable complaint or credible information suggesting they have committed a cognizable offence, directing them to appear at a specified location.

Upon receiving such a notice, individuals are obliged to comply with its terms. If they continue to comply, they will not be arrested for the referenced offence unless the officer records specific reasons for the arrest. However, if an individual fails to adhere to the notice or is unwilling to identify themselves, the officer may arrest them for the offence mentioned in the notice, subject to any orders from a competent court. Importantly, prior permission from a police officer of at least the rank of Deputy Superintendent is required for arrests related to offences punishable by less than three years of imprisonment, particularly if the individual is infirm or over sixty years of age.

Options for the Complainant or the Affected Parties:

When individuals find themselves in a situation where the police have not taken action following the filing of an FIR, there are several avenues available to them. It is essential for those affected by the situation to know their rights and the steps they can take to seek justice. Some of the steps that may be taken in this regard are as follows:

Written Complaint to Higher Police and Other Authorities: One option is to submit a formal written complaint regarding the negligence of local police officers to senior police officials. This complaint should detail the specifics of the case, reference the filed FIR, and highlight the inaction of the officers involved. Senior officials have the power to review the situation, potentially leading to necessary investigations or actions. By elevating the issue within the police department, this approach could result in a more comprehensive review of the case.

Furthermore, the complaint may also be directed to higher civil administrative authorities, such as the district magistrate, divisional commissioner, home secretary, chief secretary, local MLA or MP, the Chief Minister or Governor of the state, or even the Prime Minister or President of India. This strategy ensures that concerns are addressed at multiple levels of governance, promoting greater accountability within the system.

Application to a Magistrate: An alternative approach is to submit an application to a magistrate or higher court. This application can fulfil multiple objectives, such as asking the magistrate to instruct the police to take action against the accused or to conduct a more thorough investigation. In numerous jurisdictions, magistrates have the power to supervise law enforcement activities and can step in if they notice any lapses in police responsibilities.

This legal option can be particularly useful in promoting the pursuit of justice, especially when it appears to be at a standstill. By seeking intervention from the court, individuals can help ensure that law enforcement fulfils its obligations effectively and that the case receives the attention it deserves.

Contempt of Court Proceedings: In cases where police inaction in arresting the accused person persists despite appropriate legal channels being pursued and issuance of specific court orders, affected parties may consider initiating contempt of court proceedings against the officers involved. Contempt of court is a serious legal matter that occurs when an individual or entity fails to comply with a court order or shows disrespect for the judicial process.

If the police are found to be wilfully neglecting their responsibilities, they could face significant consequences, including disciplinary action, fines or imprisonment. This course of action underscores the importance of accountability within law enforcement and emphasizes the need for them to operate within the framework of the law.

Conclusion:
In summary, the police's decision not to arrest an accused individual following the filing of a First Information Report (FIR) is influenced by a range of factors that highlight the complexities of the legal system, such as the provision of anticipatory bail, the nature of the alleged crime, ongoing investigations, police discretion, external pressures, and necessary procedural steps like obtaining a magistrate's order.

Recognizing these elements is essential for complainants and the public to set realistic expectations and build a transparent relationship with law enforcement. For those who believe their concerns are not being adequately addressed, options exist to seek justice, including submitting formal complaints to higher authorities, requesting action from magistrates, and pursuing contempt of court proceedings in cases of continued inaction.

By understanding these avenues and taking proactive measures, individuals can effectively advocate for themselves within the legal framework. The equilibrium between individual rights and the pursuit of justice is fundamental to any legal system, making it crucial for all involved parties to grasp these processes.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565