Attitude to arrest first and then investigate is despicable

By Sanjeev Sirohi*

It is a matter of great concern and dismay that the power of police to arrest which is conferred to police under Section 41 of CrPC is being openly misused time and again and this urgently necessitates putting in some safeguards so that the arbitrary exercise of power to arrest without warrant is checked and not exercised at the drop of a hat! This misuse is more pronounced especially in the case of Section 498A of the IPC and what makes me hang my hand in shame is that even old and ailing grandfathers and grandmothers and grandchildren of such tender age as 5 or 6 years are not spared! This cannot continue any longer and it is the bounden duty of Centre to make the necessary amendments and insert the much required safeguards so that no innocent person is made a scapegoat and unjustly made to suffer endlessly for no fault of theirs!

While it is true that many cases of Section 498A are bona fide but what cannot be overlooked is that it has also become a potent legal weapon to terrorise in-laws and their relatives so that they do their bidding and this is what needs to be checked at the earliest! Those who harass and inflict cruelty upon a woman must be punished but why punish the entire family for a wrong committed by a single man alone? This is exactly what needs to be checked immediately.

To substantiate my point, let me point out what a 2 Judge bench of Supreme Court itself held recently in the case of Arnesh Kumar v State of Bihar & Anr 2014 ( 5 ) Supreme 324 in Paras 3 to 7. Para 3 says that, “The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. ‘Crime in India 2012 Statistics’ published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011.” Can anyone dispute what Supreme Court itself has said?

Going ahead, the  para 4 of this very landmark judgment further points out that, “Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police.”

Para 5 then further entails that, “There is a battle between the law makers and the police and it seems that police has not learnt its lesson ; the lesson implicit and embodied in the CrPC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption.”

 Most notably, para 6 which is the most significant of all sums up the anger of Apex Court against the gross abuse of power of police to arrest. It says that, “The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive. Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so.” It was also observed by the Apex Court that, “Provisions of Section 41 of CrPC are to be scrupulously observed.” Directions were issued. These directions apply not only to cases under Section 498-A of the IPC or Section 4 of the Dowry Prohibition Act, but also to such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years ; whether with or without fine.”

Para 7 of this landmark judgment makes it absolutely clear that, “The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Number of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure ( for short CrPC ), in the present form came to be enacted.” Para 8 further points out that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994.

In para 16 of this landmark judgment, the bench of Supreme Court explicitly states that, “We are of the opinion that if the provisions of Section 41, CrPC which authorizes the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 CrPC for effecting arrest be discouraged and discontinued. Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically.”  

As it turned out, Supreme Court in Para 17 has called upon all the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, CrPC. It says that, “In order to ensure what we have observed above, we give the following direction : All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, CrPC ; All police officers be provided with a check list containing specified sub-clauses under Section 41 ( 1 ) ( b ) ( ii ) ; The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention.”

As we see, the para 18 then further spells out that, “The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention ; The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing ; Notice of appearance in terms of Section 41A of CrPC be served on the acused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing.”

To be sure, the Bench then stipulates in para 19 that failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action shall also be liable to be punished for contempt of court! It states that, “Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction. Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.”

Of course, it merits no reiteration that it is imperative now that the power of police to arrest at the drop of a hat without any evidence must be restricted by bringing in the necessary changes in law by legislation and those police officers who misuse their power to arrest must be immediately dismissed if it is found after proper inquiry that the power to arrest was misused! This is exactly what the Supreme Court in para 19 specifies! No compromise can and should be made when it comes to the right of citizens to live peacefully and even law enforcing agencies cannot be granted that exemption unless and until the person in question is about to commit a terror act and is a potent threat to the safety and lives of people! Here too police must justify its actions and has to be above board failing which warrants strict action against those culpable! 

For the sake of clarity, the Bench then hastens to add in para 20 of this landmark judgment which widens the application of the directions issued. It states that, “We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years ; whether with or without fine.”

In essence, it is the bounden duty of all the police officers in India to strictly adhere to the commendable directions issued by the Supreme Court in this landmark case and make sure that the power to arrest is not misused in an arbitrary and whimsical manner and arrest is made only when strictly required and of only those who are guilty of doing some wrong act and that too only after the investigation is complete as the Supreme Court had strongly condemned in this very landmark case the despicable attitude of first making arrest and then investigating! The power of police officer to arrest first and then investigate must be curtailed so that the misuse of laws under Section 41 of CrPC and then the abuse under the anti dowry laws is minimized to the least possible extent!  Only then can the misuse of anti-dowry laws and all such laws which empower police to arrest anyone without warrant under Section 41 of CrPC can be checked! Only then can citizens truly enjoy what has been envisaged in Article 21 of the Constitution which deals with right to life and personal liberty of citizens and prohibits its deprivation save in accordance with law!                                                                                              

*Advocate, Meerut, UP

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