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Report No. 177

The recommendations in the Third Report of the National Police Commission (January 1980)

The law concerning arrest has been considered by the National Police Commission (NPC) in Chapter 2.- 'Corruption in Police'. It would be appropriate to briefly notice the contents of this chapter:

"Corruption in Police department is qualitatively different "because of the pre-dominance of extortion and harassment as compared to collusive corruption that prevails in several other departments." As a law enforcement agency, the Police system even from ancient times has always carried with it scope for mala fide exercise of powers and consequent corruption, which was emphasized by the Police Commission of 1902-03.

In the period of British rule, corruption was generally confined to lower ranks of all government agencies including Police, which generally alienated the administration from the people. In a sense it suited the British to have a lower level bureaucracy so alienated from the people but completely loyal to the rulers. The scope for corruption increased enormously during World War II because of the enormous spurt in government expenditure on war effort including supplies and contracts.

Several Police Commissions appointed by the State Governments after independence have also referred to the increasing corruption in the Police department.

The scope for corruption and connected malpractices arises at several stages in the day-to-day working of the Police, starting from the registering of a case, for arresting or for not arresting, for extortion, for interfering in civil disputes, for fabricating false evidence, for collecting 'hafta' from businessmen and so on.

The power of arrest is the most important source of corruption and extortion by the police officers. From the moment a case is registered by the Police on a cognizable complaint, they get the power to arrest any person who may be 'concerned in that offence', either on the basis of the complaint itself or on credible information otherwise received. It is under section 41(1)(a), that the Police are making large number of arrests everyday throughout the country.

Of course, the arrests are not only for the offences under the IPC but also for offences under the local and State laws. The local laws mostly relate to excise, prohibition, arms, gambling, suppression of immoral traffic and Motor Vehicles Act, etc. Most of these arrests are made on the basis of information and intelligence available to Police in their field work or on the basis of complaints. A sample study (conducted by the NPC) with respect to the quality of arrests effected in one State during three years' period 1974-76 disclosed the following position:

1974 %age 1975 %age 1976 %age
1 Total number of persons arrested 150448 155954 143940
2 Number involved in IPC offences 2950 2 3492 2.2 2856 1.8
3 Number against whom security proceedings were launched 40887 27.2 46063 29.6 45698 31.8
4 Number prosecuted under minor section of City Police Act 94346 62.9 96078 61.6 86248 60
5 Number against whom action was dropped 5026 3.3 6367 4.1 6450 4.5
6 Number against whom cases were under investigation 7039 4.6 3954 2.5 2958 1.5

(These figures are very significant and go to substantiate the facts and figures set out in Annexure II thereto, prepared on the basis of reports of DPGs of various States. Though these figures in NPC Report pertain to the years 1974 to 1976, there does not appear to be any marked or qualitative change over the years. 62 to 63 per cent of arrests are for minor offences under the City Police Acts and about 27 to 29 per cent arrests are in "security proceedings" i.e., under sections 109 and 110 read with section 41(2) or may even be of persons involved in proceedings under section 107/108 CrPC. Only a small percentage, about 2 per cent, were arrests for offences under IPC.)

The said materialshows "that a major portion of the arrests were connected with very minor prosecutions and cannot, therefore, be regarded as quite necessary from the point of view of crime prevention. Continued detention in jail of the persons so arrested has also meant avoidable expenditure on their maintenance. In the above period, it was estimated that 43.2 per cent of the expenditure in the connected jails was over such prisoners only who in the ultimate analysis need not have been arrested at all.

The fear of police essentially stems from the fear of an arrest by the police in some connection or other. It is generally known that false criminal cases are sometimes engineered merely for the sake of making arrests to humiliate and embarrass some specified enemies of the complainant, in league with the police for corrupt reasons".

The definition of cognizable offence in Criminal Procedure Code is inadequate. "Whether an offence should be deemed cognizable or not has to be determined on consideration whether or not it is desirable to make it investigable by the police without orders from a Magistrate. The emphasis should really be on police competence for investigation and not on the power of arrest.

The question of arrest arises only after an investigation has been taken up, and it is only an incidental task in the entire exercise of investigation. Before the Cr.P.C. was amended in 1973, the First Schedule did not specifically mention whether an offence was cognizable or noncognizable but merely referred to the fact whether or not the police may arrest without warrant.

This irrationality was set right when the Cr.P.C. was amended in 1973 and the cognizable or non-cognizable nature of each offence was specifically mentioned as such in column 4 of the First Schedule. This amendment in the First Schedule was apparently omitted to be reflected in the definition of cognizable offence in section 2(c) which continues to refer to the power of arrest without warrant, while in fact the First Schedule makes no such reference at all now. We, therefore, recommend that section 2(c) of Cr.P.C. be amended to read as under:

"(c) "cognizable offence" means an offence which is specified as such in the First Schedule and "cognizable case" means a case arising from such an offence or a case in which a police officer may under any other law for the time being in force, arrest without warrant."

Likewise section 2(1) of Cr.P.C. maybe amended to read as under:

"(1) "non-cognizable offence" means an offence which is specified as such in the First Schedule and "non-cognizable case" means a case arising from such an offence.

The amendments proposed above would not in any way abridge the power of arrest presently available to police officers under sections 41 and 157 Cr.P.C. but would underline the fact that a case is deemed cognizable not because of the power of arrest but because of police competency to investigate it".

Section 170 of Code of Criminal Procedure also requires to be amended. At present Police and some of the magistrates are under the impression that when a chargesheet is filed by the Police in court, the accused must be necessarily produced. This understanding is incorrect. The production of the accused on such occasion is not necessary. Sub-section (1) of section 170 must therefore be amended as follows:

Bond for appearance of accused and witnesses, when evidence is sufficient. 170(1). If, upon an investigation under this chapter, it appears to the officer-incharge of the police station that there is sufficient evidence or reasonable ground to forward a report to a Magistrate for taking cognizance under clause (b) of sub-section (1) of section 190 of an offence alleged to have been committed by a person, such officer shall, if the aforesaid person is not in custody, take security from him for his appearance before the officer or Magistrate on a day fixed and for his attendance on further days as may be directed by the officer or Magistrate.

Apart from a legal perception on the part of the Police of the necessity to make arrests on cognizable cases, the Police are also frequently pressed by the force and expectation of public opinion in certain situations to make arrests merely to create an impression of effectiveness. It is necessary that the Press and the Legislators should realize that they should not so pressurize the Police since such pressure leads on some occasions to unjustified arrests.

22.28 Guidelines for making arrests (laid down in the Report of N.P.C..- While the existing powers of arrest may continue to be available to the police to enable their effective handling of law and order and crime problems, we feel it would be useful to lay down some broad guidelines for making arrests. An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:

(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 processes of law.

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

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

It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines. There may be quite many cases in which it would be adequate either during or at the end of the investigation to take a bond from the accused on the lines indicated in the amended form of section 170 Cr.P.C. as proposed in para 22.26 above, without having to make a formal arrest. This arrangement in law would, in our view, considerably reduce the scope for malpractices and harassment arising from arrests".

The bail provisions were also required to be modified in the interest of reducing the scope for malpractices. Section 437 of the Code was suggested to be amended by adding the following proviso under sub-section (3) of section 437:

"Provided that before ordering the release on bail of such person, the Court shall have due regard to-

(a) the likely effect on public order and public peace by the release of such person, and

(b) his conduct after release on bail on a previous occasion, if any, as may be brought to the notice of the Court by the police officer investigating the case in connection with which the aforesaid person was taken into custody."

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