Report No. 243
12. Power of Arres.- a balanced approach
12.1 Power of arrest vested with the Police Officer in a cognizable offence is no doubt a potent weapon to enforce the penal provision. However, this weapon should be sparingly drawn out of its sheath and wielded only if necessary. It shall not be used at the whim and fancy of the I.O. or be treated as a panacea for checking such offences. The attitude to arrest first and then proceed with the rest is despicable. Mechanical, casual and hasty application of the power of arrest is counter-productive and negates the fundamental right enshrined in Article 21.
Such attitude is at the root of misuse of Section 498-A. The provisions in Cr.PC regulating and channelizing the power of arrest should act as guiding star to the police and their spirit and purpose should be foremost in their minds. Overreach is as bad as inaction. The need for caution in exercising the drastic power of arrest in the context of cases u/s 498-A has been emphasized time and again by the Courts and the parliamentary Committee.
Similarly, the need to keep the doors for reconciliation open and to restore the family ties if possible has also been highlighted in many judgments and even in statutory provisions dealing with matrimonial disputes and domestic violence. Arbitrary and indiscriminate arrests are an anathema to the rule of law and values of criminal justice. In the context of Section 498-A complaints, it tends to become a handy tool to the police officers who lack sensitivity or act with oblique motives.
The objective of the provision is not better subserved by viewing arrest as the most effective tool. Arrest pending investigation or thereafter should never be viewed as a well deserved punitive measure and it should be exercised on an objective appraisal of the statutorily laid down conditions and criteria.
12.2 The value of proportionality permeates the newly introduced provisions relating to arrest. If these provisions are scrupulously followed, the potential for arbitrary action on the part of police is minimized. Needless to say that the power of arrest is coupled with the duty to act reasonably. Section 498-A admits of various degrees of cruelty which can be broadly categorized as less serious and more serious. Uniformity of approach in exercising the power of arrest is bound to result in undue hardship and unintended results.
12.3 It is apposite at this juncture to recall the following significant observations made in Joginder Kumar's case: "The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two? A realistic approach should be made in this direction.
The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violator or the law abider; of meeting the challenge which Mr. Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights".
12.4 The need to balance personal liberty with law enforcement has been stressed in Nandini Satpathy's case, AIR 1978 SC by quoting Lewis Mayers: The paradox has been put sharply by Lewis Mayers: "To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft. The pendulum over the years has swung to the right".
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