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Report No. 177

Chapter V

The need for this study and the approach underlying it

The law concerning the power of the police to arrest without warrant and/or without an order from the magistrate is a fundamental aspect of the Criminal Procedure Code. It is true, as has been suggested by a number of participants in the seminar and other persons/organizations who have responded to our questionnaire that the law relating to arrest ought not to be examined in isolation but that it must be a part of a larger study of the entire procedural law (criminal) obtaining in the country but the said reasoning has no application herein for the reason that Law Commission has already examined in depth not only the Code of Criminal Procedure but also the Indian Penal Code very recentl.- 154th and 156th Reports submitted in 1996 and 1997, respectively. Earlier, several aspects of Criminal Procedure were examined in several Reports.

The 154th Report on CrPC deals inter alia with Law of arrest as well and has recommended certain changes, as pointed out earlier in a preceding chapter. Since this particular aspect did not receive the attention it deserved in earlier Reports and also because, the Commission did not have before it the data concerning the arrests under preventive provisions, arrests for bailable offences and other particulars contained in Annexure II, the Commission thought it fit to undertake this separate study. The 41st Report of the Law Commission on the Code of Criminal Procedure, 1898 is an extensive one and it formed the basis for the 1973 Code.

The other Reports dealing with various aspects of criminal procedure are the 25th Report (concerning the evidence of officers about forged stamps, currency notes, etc. and suggesting and introduction of a new section, section 50A), 32nd Report (section 9 of the Code of Criminal Procedure, 1898), 33rd Report (section 44 of the 1898 Code), 35th Report (on capital punishment), 36th Report (on sections 497, 498 and 499 of 1898 Cod.- subject of bail), 37th Report (sections 1 to 176 of 1898 Code), 41st Report (Code of Criminal Procedure, 1898), 47th Report (the trial and punishment of social and economic offences),
48th Report (some questions under the Code of Criminal Procedure Bill, 1970), 73rd Report (criminal liability of the husband upon his failure to pay maintenance or permanent alimony to the wife), 78th Report (congestion of undertrial prisoners in jails), 132nd Report (suggestion for amending chapter 9 of the 1973 Code), 135th Report (women in custody), 141st Report (upon the need for amending the law to empower the courts to restore criminal appeals and revisions dismissed for default of non-appearance), 142nd Report (concessional treatment of offenders who on their own initiative choose to plead guilty without any bargaining) and 152nd Report (on custodial crimes).

Indeed, recently the Law Commission has also submitted its 172nd Report on (Review of Rape Laws) which suggests certain amendments to Criminal Procedure Code along with Indian Penal Code and Evidence Act. We do not therefore think that we should hold back this study of the law relating to arrest on the ground that it should be taken up only as part of an overall study of the Criminal Procedure Code as has been suggested by certain individuals and organizations.

Another critical approach adopted by certain police officers (who participated in our seminars and also sent their written responses to the Working Paper) is that the material/data collected by the Commission is not adequate and that some more data ought to be collected before such an important law reform is thought of. We are unable to accede to this plea either. The material collected by us and which is presented in a capsule form in Annexure II cannot be said to be inadequate. It is the data supplied by the Directors General and Inspectors General of the several States, based upon the precise data collected by them through their officers and records.

Except saying that more data should be collected, the proponents of this view could not point out in which particular, the data is lacking. It may also be noticed that the data collected by the National Police Commission from three districts in the country, referred to in chapter XXII of their Report (referred to in an earlier chapter), fully corroborates the basic premises of Annexure II. It may be mentioned that the particulars supplied by the AGPs/IGPs is quite extensive, all of which could not naturally be set out in the Working Paper.

Annexure II is only an abstract prepared by the Commission on the basis of their Reports. Some of these Reports have also put forward several suggestions and comments with respect to the proposals contained in the Working Paper. The several reported decisions of the Supreme Court and High Courts are eloquent testimony to the several abuses afflicting the Police administration in the area concerned herein. Even the NPC Reports speak of misuse of this power, the corruption accompanying this power and the frequent harassment of citizens by uncalled for, unjustified and motivated exercise of this power.

Several decisions of the Supreme Court/High Courts, Reports of Law Commission and the Report of NPC have suggested measures to streamline and regulate this power by laying down several guidelines for the police officers. In this state of affairs, the plea that a reform of this branch of law should be put off till more data is collected, cannot be countenanced.

Another idea put forward by some participants/respondents is that present time is not the proper time to change the law. Except saying so, they have not given any reasons in support of this plea. When the phenomenon of misuse of power of arrest is rampan.- the NHRC is flooded with such complaint.- it is difficult to agree that the time is not propitious for effecting changes in it. At the same time, we must make it clear that we are not unaware of the menace of terrorism afflicting our country. India is one of the worst victims of terrorism, both home-grown as well as imported.

Foreign mercenaries in J&K have been taking a toll of our security and police forces and we are obliged to divert our meagre resources to fight this evil. We are also aware that existing criminal law is not adequate to meet this menace and that our anti-terrorism law is the need of the hour. Taking note of this fact and taking note of the further fact that both UK and USA have permanent anti-terrorism laws, we in the Law Commission had recommended the enactment of a law called 'Prevention of Terrorism Act'.

In our 173rd Report, we had pointed out the necessity of such a law and had also enclosed a Bill containing provisions which were less rigorous than the provisions of the UK and USA Act. We may also mention that after the tragic events of September 11, 2001 (bombing of World Trade Centre and Pentagon) in USA, both the Federal and State Governments in USA are toughening their anti-terrorism laws. We are not saying that the Bill submitted by us in the year 2000 should be toughened.

What we are suggesting is that an anti-terrorism law is called for in the present security situation in the country. At the same time, we wish to emphasise that just as a special law is required to fight terrorism effectively, the ordinary law of the land should be adequate to safeguard the rights of the citizens while maintaining and preserving the law and order and societal peace. There is no contradiction between having an effective anti-terrorism law and a balanced criminal law applicable to ordinary citizens and situations not governed by the anti-terrorism law. Suppression of terrorism indeed contributes to a situation where the ordinary citizens can peacefully enjoy their civil, political and economic rights.

Yet another idea put forward is that any curtailment of the powers of the police in this behalf would take away the fear of the police from the public mind and would not be conducive to a proper maintenance of law and order. We find it difficult to agree that there should be fear of police in public mind or that such fear is necessary for maintaining law and order in the society. In a democracy, where the people are the masters, and the public servants their agents appointed to do a particular job, the very idea of fear is inadmissible and unacceptable.

Fear must be of doing a wrong thing. The British society is an example where a friendly police yet maintains the law and order in a far more effective manner. In any event, what does this fear of police mean? Mere arrest cannot be such a fear as to hold back a person from committing a crime. Or is it fear of harsh or third-degree treatment at the hands of the police? If it is the latter, it is unacceptable. Indeed, the only fear that can be countenanced is the fear of punishment by court.

But then it is said that since the conviction rate is very low, the very fact of arrest is a sort of punishment that can be meted out to the guilty. This argument is again misleading and unacceptable. Guilt or innocence has to be determined by the courts and not by the police. Police merely prosecutes on being satisfied that a person is guilty of an offence; it doesn't punish. It is also suggested that there is a distinct increase in crime because of enormous increase in population, unemployment and lack of adequate resources. May be so. But how does this phenomenon militate against the proposed changes in law.

In fact, the attention of the police must be more on serious offences and economic offences and not so much on minor offences. The undesirable practice of arresting persons for minor offences and keeping them in jail for long periods (either because they cannot move for bail or because they cannot furnish bail to the satisfaction of the cour.- all because of their poverty) must come to an end. In fact, this aspect has already engaged the attention of the Supreme Court, which has given several directions for release/discharge of accused in case of minor offences and offences punishable up to seven years excepting therefrom the economic offences.

These directions were given keeping in view Article 21, the way in which trials for minor offences are dragging on for years and years together with the result that the criminal judicial system is operating as an engine of oppression against them. See Common Cause decisions reported in AIR 1996 SC 1619 and in AIR 1997 SC 1539. The Court took note of the fact that in some cases, the accused have been in jail for periods longer than the period to which they would have been sentenced, even if found guilt.- and that all this was happening even before their guilt or innocence is determined. The Court said:

"The very pendency of criminal proceedings for long periods by itself operates as an engine of oppression. It appears essential to issue appropriate directions to protect and effectuate the right to life and liberty of the citizens guaranteed by Article 21 of the Constitution".

So far as the plea for reclassification of offences (cognizable/noncognizable) in IPC is concerned, we do not think it necessary to do so except making a distinction (elaborated hereinafter) between offences which are committed in the presence of the police officer and offences which are reported to him after they are committed. (This distinction is relevant only in the context of power of arrest and is an important and relevant distinction as will be pointed out hereinafter.)

Regarding the demand for reclassification, we may say that we are not convinced by the reasons behind the said demand. We have explained hereinbefore the criteria/basis upon which the said distinction is based. We are of the opinion that the said basis is a reasonable and cogent one and need not be meddled with.

The criminal procedure devised by any country should aim at resolving State-citizens' disputes in a manner that commands the society's respect for fairness of its processes as well as reliability of its outcomes. It's function should be to reaffirm the fundamental values of the nation and devise a procedure consistent with such values and the substantive criminal law. This is referred to as the principle of restraint.

The principle of 'restraint' means that the liberty of an individual and his freedom should be interfered with by resorting to the power of arrest without warrant only where the circumstances necessitate the same. Not only the procedure should be consistent with the fundamental constitutional values of our nation but they must also be expressed in language which is simple, certain and coherent and at the same time comprehensive. It must provide clear and unambiguous guidance both to the law enforcement agencies as well as to the citizens.

We may now refer to a valid criticism of the proposals (in the Working Paper) to introduce the concept and practice of issuing summons and appearance notices instead of arrest in bailable and non-cognizable and bailable and cognizable, respectively. The criticism runs as follows: riot (s.147) and riot with dangerous weapons (s.148) are both cognizable but bailable offences according to the Schedule to CrPC.

When a riot with deadly weapons is going on in the presence of the police officers and if you say that the police officers cannot arrest the rioters and the only power they have is to serve summons or appearance notice upon the.- the situation would be ridiculous; the police would become totally ineffective, and a laughing stock, and the public confidence in the police as an agency to maintain law and order would be totally shaken. Such an absurd scenario cannot and should not even be imagined, it is suggested.

We have taken due note of this criticism and accordingly devise herewith a classification of offence.-(this classification is relevant to and is made only in the context of the power of the police to arrest without a warrant.- into those committed in the presence of police officer(s) and those which he comes to know after they are committe.- a distinction recognized in some criminal judicial systems.

The basic distinction that has to be kept in mind vis-à-vis the power of arrest is a situation where the offence is committed or is being committed in the presence of a police officer and a situation where the police officer comes to know of the offence after it is committed. Let us elaborate by referring to various possible situations and the powers of police in those respective situations as per the recommendations made in this Report:

(a) Where a police officer comes to know of a design to commit a cognizable offence and the only way of stopping the commission of offence is by arresting the person (so designing to commit a cognizable offence), he can arrest him under section 151 CrPC.

(b)(i) Where a cognizable offence is committed or is being committed in the presence of a police officer (as in the case of a riot with or without dangerous weapons), he would be, and must be, empowered to arrest the person who has committed or is committing the offence, if that is the only way of stopping the commission or further commission of that or other cognizable offence. Indeed, this is what section 149 of the Code says. It places a duty upon the police officer to "interpose for the purpose of preventing, and shall to the best of his ability, prevent, the commission of any cognizable offence". However, if the offence is bailable, he would immediately release the person after obtaining a personal bond to appear whenever called by the police or the court, as the case may be.

(ii) Similarly, if the police officer finds that any person is attempting to commit or is committing an act causing injury to any public property (see section 152), it is his duty to take necessary steps to prevent it. Indeed, this power is all the more necessary today, when on the slightest provocatio.- or without any provocation, sometime.- people attack and damage public property like buses, railway property, government vehicles and so on. In such a case, his power extends to arresting the person and to hot-pursuit, where necessary. This is so irrespective of the fact whether the offence is cognizable or not.

(c) Where the police officer comes to know of the offence after it is committed, his power to arrest the alleged offender should be different. This is the most usual case. Most of the time, the police officer comes to know of the offence after it is committed, either on some one's information or through intelligence. In such a case, the police officer has to follow the following courses of action:

(i) if the offence is a non-cognizable one, he should take no action in the matter except recording the information and refer the informant to the Magistrate, as contemplated by section 155 of the Code;

(ii) if the offence is a cognizable one and is punishable with sentence of imprisonment not exceeding seven years the police officer may commence investigation into the offence, but his power to arrest is governed by the provisions of section 41 (as recommended in this Report). If the offence is bailable, it is obvious that he shall release him on bail or on personal bond, in case he arrests him;

(iii) if the offence is a cognizable one punishable with imprisonment for more than seven years or with life imprisonment or death, he may arrest the person as provided in Chapter V of the Code.

The point to be emphasised is that arrest must be resorted to only where it is necessary. This is the principle of restraint, referred to hereinabove. It must be remembered that arrest is not meant to be a punishment but is merely a detention of the person in police custody/jail for a particular purpose or purposes, as the case may be. The purpose may be to ensure his presence during the course of investigation or whenever his presence is required or called for by the court or where the arrest is called for for one or more of the reasons mentioned hereinabove.

Of course, in the case of serious offences like murder, dacoity, arson, offences against the State and offences against wome.- indeed in the case of offences punishable with imprisonment exceeding seven years, arrest may be called for for instilling a sense of confidence among the members of the public. To put it in different words, the arrests can be both 'preventive' as well as 'repressive.- expressions coined by the jurists. Preventive purpose includes protective purpose.

This power will be exercised in cases where it is necessary to arrest the person to prevent the commission of an offence, terminating a breach of the peace, to detain the person who may be a danger to himself or to others, to prevent him from tampering with the witnesses or evidence of crime and so on. Repressive purposes are those where the object of arrest or detention is to compel his attendance in court whenever necessary or to gather evidence in relation to an offence with his assistance.

Let us look at the problem from a different angle: Inasmuch as an overwhelming majority of the alleged offenders are not likely to abscond (except in serious offences like murder, dacoity, robbery and offences against the State, etc.), the question is whether a person should be arrested merely because he is "concerned in any cognizable offence", where the offence has already been committed, i.e., where the offence is not committed in the presence of the police officer?

In such a case, unless it is necessary to arrest a person for preventive purposes, no arrest should be made except in serious offences like murder and dacoity etc., as mentioned above. In case of most of the lesser offences, i.e., offences punishable up to seven years, the likelihood of the person absconding or evading arrest or running away from his normal place of abode, is very little. A mere appearance notice or a summons, as the case may be, should be sufficient in such cases.

Only where it is apprehended that the person will not obey an appearance notice/summons and where it is believed that rearresting him would involve unnecessary and avoidable effort and expense, that the person should be arrested for repressive purposes. We may conclude this chapter saying that while the tradition of common law has been to confer broad powers of investigation upon police officers, it has always tended to limit strictly the power and authority to interfere with an individual's liberty or property.

Law relating to Arrest Back

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