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Abuse Of Power To Arrest: An Unruly Horse?

The rise in prosecution of white-collar crimes and economic offenses in the country bears a close nexus with stringent reforms introduced by the incumbent government to boost the economy and break the perception of opacity and corruption, that has long marred the functioning of government institutions in India.

The alacrity of the police and other investigating agencies to tighten the noose around perpetrators of white-collar crimes is visible in the sharp incline in number of arrests made in connection with white collar crimes recently. While one cannot doubt the intention behind such laudable legislative and policy changes, one should also not lose sight of the glaring instances where over zealousness of police and other enforcement authorities has led to wrongful arrests, in gross violation of the procedure established by law. Modern history is replete with instances where civil rights and personal liberty of citizens have become a casualty at the hands of State high handedness.

Although, the Constitution of India and the Code of Criminal Procedure, 1973 (Code) contain enough safeguards to prevent wrongful deprivation of personal liberty and malicious prosecution, the judiciary must be pro-active to ensure due process of law is followed and police/investigating authorities exercise the power to arrest with restraint.

It has been observed and highlighted in some media reports that police/investigation authorities have breached the statutory safeguards with brazen proclivity and made wrongful arrests. Courts, especially the lower judiciary must be mindful of the fact that there has been a steep rise in the number of malicious prosecutions in India, especially in cases relating to economic offenses, criminal breach of trust, cheating etc., often instituted at the behest of a disgruntled party who are already pursuing civil remedies simultaneously.

The Supreme Court of India has come down heavily on arbitrary curtailment of personal liberty by State agencies and underlined the significance of procedural safeguards enshrined in the Code to be followed mandatorily by authorities before making an arrest/detention.

In Joginder Kumar v. State of U.P. [(1994) 4 SCC 260] while considering the misuse of police power of arrest, it was opined:
20. � No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. �no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.

In D.K. Basu v. State of W.B. [ (1997) 1 SCC 416], after referring to the authorities in Joginder Kumar (supra), Nilabati Behera v. State of Orissa [(1993) 2 SCC 746] and State of M.P. v. Shyamsunder Trivedi [(1995) 4 SCC 262], the Court laid down certain guidelines to be followed in cases of arrest and detention till legal provisions are made in that behalf as preventive measures. The Hon'ble Court was pleased to issue eleven directives in the interest and safety of personal liberty to be followed by police authorities while exercising the power to arrest and/or detain.

However, these guidelines were routinely flouted by authorities with impunity. To curb this menacing situation, legislature sprung in action and introduced an intricate mechanism against arbitrary arrest and detention through amendment in the Code in the year 2009. Section 41-A was inserted in the Code by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008 and provided that where the arrest of a person is not required under Section 41(1) of the Code, the police officer is required to issue notice directing the accused to appear before him at a specified place and time.

Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 has to be complied with and shall be subject to scrutiny by the Magistrate.

Therefore, the Magistrate or the designated court has to prima facie be satisfied with the reasons and procedure of arrest of a person and it was absolutely imperative on the part of the arresting authority to comply with the procedure postulated in Section 41-A of the Code while arresting a person in connection with an offense punishable with a maximum term of seven years. This provision also ensured that an offender or a possible accused could avail and exercise his remedy to seek anticipatory bail or stay on arrest, as the case maybe before his probable arrest.

Thereafter, the Court in Arnesh Kumar v. State of Bihar, [(2014) 8 SCC 273] referred to Section 41 of the Code and analyzing the said provision, opined that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence. It has been further held that:
7.1. � A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.

Eventually, the Court was compelled to state:
7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.

The Hon'ble Court passed strict observations against the practice of mechanical and arbitrary arrests and held that the errant police officer and/or judicial officer would be liable for departmental/disciplinary action and contempt of the territorial high court if they fail to follow the mandate of the Code as explained by the Court. The Hon'ble High Court of Delhi in Amandeep Singh Johar v. State of NCT of Delhi, WP(C)7608/2017, while reiterating the observations of the Supreme Court in Arnesh Kumar (supra) held that issuance of notice under Section 41A is a mandatory requirement and any deviation from the same would amount to contempt of the Hon'ble Court and such an arrest would amount to an illegal detention.

The Court was pleased to issue detailed guidelines and directions to the Delhi Police to be strictly followed before making an arrest/detaining a person and further ordered that awareness should be spread about the same through prominent display in all police stations etc.

The Hon'ble High Court of Karnataka recently in Sri Jaikanth S v. State of Karnataka, Criminal Petition No. 4306/2019 reprimanded the actions of the police authorities as well as the Magistrate who failed to abide by the mandatory provisions of the Code and was pleased to discharge the accused.
The Hon'ble Supreme Court recently came down heavily on the police authorities for flagrant violation of the mandatory provision of Section 41-A of the Code and proceeded to grant compensation of Rs. 5,00,000 each to the petitioners who were victims of wrongful arrest.

It was thus observed in Rini Johar v. State of M.P. [(2016) 11 SCC 703]:
In such a situation, we are inclined to think that the dignity of the petitioners, a doctor and a practising advocate has been seriously jeopardised. Dignity, as has been held in Charu Khurana v. Union of India [Charu Khurana v. Union of India, (2015) 1 SCC 192] , is the quintessential quality of a personality, for it is a highly cherished value. It is also clear that liberty of the petitioner was curtailed in violation of law.

The freedom of an individual has its sanctity. When the individual liberty is curtailed in an unlawful manner, the victim is likely to feel more anguished, agonised, shaken, perturbed, disillusioned and emotionally torn. It is an assault on his/her identity. The said identity is sacrosanct under the Constitution. Therefore, for curtailment of liberty, requisite norms are to be followed. Fidelity to statutory safeguards instill faith of the collective in the system.

It does not require wisdom of a seer to visualise that for some invisible reason, an attempt has been made to corrode the procedural safeguards which are meant to sustain the sanguinity of liberty. The investigating agency, as it seems, has put its sense of accountability to law on the ventilator�.

The need for caution in exercising the drastic power of arrest has been emphasized time and again by the courts but has not yielded desired result. Much has been done by the legislature and interpreted by the Supreme Court and High Courts to impede and rectify the unfair action and abuse of power by police and other investigating authorities while arresting/detaining. Arrest brings humiliation, curtails freedom and casts scars forever.

It has become a handy tool for harassment of innocent citizens and a major source of corruption in the police. Lawmakers know it so also the police. There is a battle between the lawmakers and the police, and it seems that the police has not learnt its lesson: the lesson implicit and embodied in the Code. However, as with all laws in India, the devil lies in the detail as well as robust implementation of the legal provisions and judicial precedents.

Award Winning Article Is Written By:
  1. Mr.Shantanu Singh Chandel &
  2. Ms.Shifa Khan
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