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Report No. 177

Law Relating to Arrest

Chapter I


Liberty is the most precious of all the human rights. It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man. The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on December 10, 1948, contains several articles designed to protect and promote the liberty of individual.

So does the International Covenant on Civil and Political Rights, 1966. Above all, Article 21 of the Constitution of India proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. Even Article 20 and clauses (1) and (2) of Article 22 are born out of a concern for human liberty. As it is often said, one realizes the value of liberty only when he is deprived of it. Verily, liberty along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by our Constitution.

Of equal importance is the maintenance of peace and law and order in the society. Unless there is peace, no real progress is possible. Societal peace lends stability and security to the polity. It provides the necessary conditions for growth, whether it is in the economic sphere or in scientific and technological spheres. Just as liberty is precious to an individual, so is the society interested in peace and maintenance of law and order in the society. Both are equally important.

This fact was recognized about 2500 years ago by Heraclitus of Ephesus. He had observed "a major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes license". (Quoted by Arthur T. Vanderbilt in his article "United We Stand". A.B.A.J. (Aug 1938) page 639)

Whether it is for securing the liberty of an individual or for maintaining the peace and law and order in the society, law is essential. Not only should there be a proper law, there should also be proper implementation of law. In short, the society should be governed by the rule of law and not by the rule of an individual, however benevolent he may be. Failure of rule of law is a sure indication of the liberty of the individual coming into peril and so does the peace of the society. It is therefore required of law that it should try to promote both these contending concepts and to maintain a balance between them, viz., the balance between the necessity to protect and promote the liberty of the individual and the necessity to maintain peace and law and order in the society.

This aspect has been repeatedly emphasized by the Supreme Court in its various decisions to which a reference will be made at the appropriate stage. Indeed, the Court has enunciated several rules and guidelines which the executive should follow before interfering with the liberty of a citizen. Not only the Supreme Court, all the High Courts too have been emphasizing the inalienable and invaluable nature of liberty as also the societal interest in peace and law and order.

Even so, a large number of complaints persist, complaining of unlawful deprivation of liberty of the citizens at the hands of Police and other enforcement authorities, of their resort to unlawful methods of investigation and of cruel and unusual treatment of the accused while in their custody. In view of these persisting and innumerable complaints appearing in the media and coming before the courts, the Law Commission of India thought it appropriate to examine the law relating to arrest in all its facets, to find out whether any improvements can be suggested in the relevant legal provisions.

Accordingly, the Law Commission addressed the letter dated July 20, 1999 to the then Chairman of National Human Rights Commission, Shri Justice M.N. Venkatachaliah, pointing out the provisions in the Criminal Procedure Code relating to arrest, the awesome power vested by those provisions in one of the civil services of the State, namely, the Polic.- which indeed is the only armed civil service in our polit.- the persisting complaints of police excesses and requesting the NHRC's help in the matter. The relevant portion of the letter reads as follows:

"To enable us to arrive at a proper conclusion on the aforesaid question, we must have empirical data collected by an expert body. In the course of discussions which I had with you on Sunday, you had suggested that it would be possible for the Human Rights Commission to constitute a committee of high police officials (retired or working), who shall select four districts in the country as case studies and find out the number of arrests made by the police in that district in a given year without warrant, the number of arrests which were made without registering the crime, the number of cases in which the person arrested was released without filing a charge-sheet and the length of his detention, the number of cases in which charge-sheets were filed and the number of cases in which the prosecution resulted in conviction.

It would also be necessary to categorize the offences in connection with which the persons were arrested, the period of the detention in police and in judicial custody, the time taken for concluding the prosecution against them and if a person is kept in detention, the number of occasions on which he was not produced before the court on the dates of hearing. It would also help us if any other relevant and incidental details and data, which the committee may think relevant, is also made available to us.

The Law Commission of India would be grateful if you can appoint an expert committee and make data collected by them and findings recorded by them available to us. We would also welcome any suggestions, ideas and recommendations which such expert body may record on the above subject keeping in view the recommendations contained in the Police Commission Reports."

Accordingly, the NHRC wrote to all the Director Generals of Police of various States in the country to provide the required information. The information so gathered was made available to the Law Commission. The information furnished by the DGPs of various States is reflected in an abstract prepared by the Law Commission (which was appended to the Working Paper) and which is appended to this Report as Annexure II.

The abstract contains 08 columns showing (1) Name of the State, (2) The total number of persons arrested under substantive offences, (3) The total number of persons arrested under preventive provisions, (4) The total number of persons chargesheeted in a year, (5) The total number of cases dropped without filing a chargesheet, (6) The total number of persons convicted in a year, (7) The percentage of persons arrested for bailable offences and (8) The percentage of persons arrested under preventive provisions and of the persons dropped without filing chargesheets.

While we do not wish to repeat all the particulars in the said abstrac.- also because the abstract itself is annexed to this Report as stated abov.- it maybe necessary to point out a few revealing aspects. In Delhi, while the total number of persons arrested for substantive offence is 57,163, the total number of persons arrested under preventive provisions is 39,824. 50% of the persons arrested were arrested for bailable offences. If we take U.P., the number of arrests under the preventive provisions is far above the total number of arrests for substantive offences.

While preventive arrests are 4,79,404, the number of arrests for substantive offences are 1,73,634. The percentage of persons arrested in bailable offences is 45.13. In Haryana, the percentage of arrests under bailable provisions is 94%, in Kerala it is 71%, in Assam it is 90%, in Karnataka it is 84.8%, in M.P. it is 89% and in Andhra Pradesh it is 36.59%. Indeed a perusal of the said abstract/Annexure II would disclose the unduly large number of arrests under preventive provisions as well as for bailable offences.

It is difficult to believe that in all these arrests for bailable offences, warrants were issued by the magistrates. Indeed an overwhelming percentage of those arrests were by the Police without a warrant. This is equally disturbing even if some of them are preventive arrests, as was suggested by some police officers during one of the seminars. It is a matter of common knowledge that it is the poor who are at the receiving end of the excesses by law enforcement authorities. A man without property and without a regular income is always under suspicion of being a thief or a person out to commit some offence. In this sense, "poverty (itself) is crime.- a truism echoed by George Bernard Shaw.

The unnecessary incarceration of undertrials in jails is another disturbing feature of our criminal judicial system. The decisions of the Supreme Court and High Courts and the reports of the National Police Commission say that a majority of the inmates of jail are undertrials. Many of them languish in jails because they are not able to either move for bail or to furnish the bail prescribed by the cour.- again a consequence of poverty. Number of instances have been pointed out by courts where undertrials have been kept in jails for periods longer than the maximum period for which they could have been sentenced had they been found guilty of the offence with which they were charged.

In the light of the facts and figures furnished to us by the Director Generals of Police and in the light of the decisions of the courts and the Reports of the National Police Commission, the Law Commission prepared a Consultation Paper on the Law of Arrest. The said Consultation Paper is appended to this Report as Annexure III.

Several proposals were put forward in the Consultation Paper which were meant to evoke a debate in the concerned sections of the society and to bring to their notice the facts and figures contained in Annexure II. Copies of the Consultation Paper were sent to all the Bar associations, Human Rights organizations, Director Generals of Police, State Governments, Union Ministry of Home Affairs and to all other persons interested in public affairs.

The Law Commission conducted three seminars on the subject, at Delhi, Calcutta (in association with the West Bengal University for Juridical Sciences) and Hyderabad (in association with the National Academy for Legal Services and Research), whereat a large number of very high Police officials, Secretaries to Government, representatives of Human Rights organizations, leading members of the Bar and the society participated and offered their invaluable suggestions and criticism. We have also received a large number of responses from various sections of society and organizations, all of which have been collated and duly considered while preparing this Report.

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