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Report No. 268

A. Arrest

4.2 Arrest or detention or apprehension of a person is pre-requisite for an application for bail before the appropriate court. However, in cases of Anticipatory Bail application, such arrest or detention is not a pre-requisite. Therefore, the law of bail must take into account laws regarding arrest and detention contained in Chapter V of Cr.P.C. The law relating to arrest with or without warrant and the right of persons who are arrested are contained in sections 41 to 60 of Cr.P.C. The most important and frequently used provision is the power to arrest any person who is connected to any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or if reasonable suspicion exists.72

4.3 In its 154th Report, the Law Commission of India reviewed the law on arrest,73 and supported the conclusion reached in the 3rd Report of the National Police Commission that "a major portion of the arrests were connected with very minor prosecutions and cannot, therefore, be regarded as necessary from the point of view of crime prevention".74 Finding that over 60 percent of arrest was un-necessary and such arrests accounted for 42.3 per cent of jail expenditure,75 the National Police Commission recommended that an arrest during investigation of a cognizable offence would be justified only when:76

i. The case involves a grave offence like murder, dacoity, robbery, rape, etc. and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims;

ii. The accused is likely to abscond and evade the process of law;

iii. The accused shows violent behaviour and is likely to commit further offences unless his movements are brought under restraint; and

iv. The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.

4.4 The Supreme Court of India has observed in the case of Joginder Kumar v. State of Uttar Pradesh,77 that the power of arrest should not be exercised in a routine manner. The Supreme Court also held that no arrest should be made without conducting an investigation as to the bona fides of a complaint, reasonable belief of a person's complicity, and the need to arrest.

4.5 The guidelines given in the Joginder Kumar's case (Supra) have acquired statutory shape upon the enactment of the Cr.P.C. (Amendment) Act, 2008 (5 of 2009). The Section 41 of Cr.P.C., 1973 was amended to limit the power of arrest for cognizable offences for which punishment is seven years or less. The amendment further postulates that the police officer shall record in writing his reasons for making or not making the arrest. The lawfulness of the arrest without warrant, in turn, must be based upon 'probable cause'. It depends upon the facts and circumstances within the officer's knowledge, and information which must be reasonable as well as trustworthy.78

4.6 The Supreme Court reviewed the power of arrest in Arnesh Kumar v. State of Bihar79 and laid down following guidelines:

  • Arrests must not be automatic, but the police officer must satisfy himself about the necessity for arrest by asking- why arrest? Is it really required? What purpose it will serve? What objective it will achieve?;
  • The police officer must be equipped with a check list contained in specified sub-clauses under s. 41 (1) (b) (ii). This checklist must be forwarded to the Magistrate along with reasons and material that necessitated arrest when the accused is produced before the Magistrate for further detention. The Magistrate while authorizing the detention shall peruse the report furnished by the police officer and only after recording its satisfaction the Magistrate may authorize detention;
  • The decision not to arrest the accused must be forwarded to the Magistrate within two weeks from the date of institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for reasons to be recorded in writing;
  • Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action;
  • The Magistrate must apply his mind when authorizing detention beyond twenty-four hours as provided under s. 167 of Cr.PC. The detention must not be ordered in a callous manner, the Magistrate shall record his own satisfaction that the terms of section 41 (1) (b) of Cr.PC have been complied with.

4.7 Further, to ensure that a person who is not arrested is available for investigation, s.41A was inserted in the Code by the aforementioned amendment which provides that where a police officer who decided that he must not arrest a person, may require the person to appear before him at a specified place by issuing a notice. If the person does not comply with the terms or is unwilling to identify himself, the police officer may arrest him for the offence mentioned in the notice.80

4.8 It is desirable as well as necessary to meet the requirement of existing legal provisions under the criminal law justice as well as the Constitution of India that whenever the police officer arrests a person accused of non-bailable offense he must inform such accused that he is entitled to access free legal aid and may also apply for being released on bail. The officer shall also inform him about the procedure, as far as possible in the language that the accused person so understands.

4.9 The Courts have often made observations that the provisions of the Code particularly beneficial to the accused are not complied with by the Police and the Courts do not take serious note of such default, in view of the above it is necessary that in case the Police does not observe the norms contained in section 41 and the judicial officer also overlooks it, the State may initiate disciplinary proceedings against them. To enable the State or High Court to initiate proceedings against the police officers or judicial officers respectively, it is necessary that the High Courts shall amend the existing rules accordingly.

4.10 There is undeniably, a deeply entrenched practice in criminal law to cloak preventive detention as criminal justice bypassing the logical restrictions on criminal justice81. Such arbitrary practices not only fail to protect the community efficiently but also fail to deal with the accused person in just manner. Yet, real world problems commonly present us with conflicting interests that cannot be reconciled but only be compromised82. Sanctioning arbitrary arrests and irrational bail provisions will have the same effect as the laws appear in works of fiction such as 'Clockwork Orange' or 'Alice in Wonderland', where punishment precedes an offence and introduces a "police state" which fosters tyranny83. Such measures must be used with extreme caution.

4.11 As India is a signatory to ICCPR, the provisions on arrest and bail are made to manifest the letter and spirit of Article 9 (3) and (4) of the ICCPR that provide that pre-trail detention must be the exception and that any person whose liberty is curtailed due to arrest or detention must be brought before a court without delay to review the lawfulness of his detention and order his release, if so required. The gap between theory and practice of law can be bridged- by implementing rules that will maximize the liberty of citizens generally, while ensuring their safety84. This task cannot be properly accomplished if we assume that "law enforcement is forever at odds with civil liberty".85

Amendments to Criminal Procedure Code, 1973 - Provisions relating to Bail Back

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