Report No. 177
Shri Jaspal Singh, Addl. Director, CBI espoused the other point of view. He said that arrest becomes necessary in several situations. For example, in case of rape or other offences against women and in the case of communal riots and offences affecting public tranquility arrest becomes a necessity and a timely arrest very often saves the situation. He opined that so far as white-collar crimes are concerned, there may be no reason for immediate arrest. He felt that the 24 hours' time given by the Constitution and the law for producing the accused before a magistrate needs to be extended and the provisions regarding grant of police remand should be liberalized.
Shri Bhawani Prasad, Law Secretary to the Government of AP emphasized the necessity of a reclassification of the offences in the IPC. He pointed out that the offence under section 304A, IPC is still being treated as bailable, which is no longer consistent with the present day realities. He emphasized that unless the mind-set of the police personnel is changed and they are made to realize that they are performing a public service, mere change in law would not help.
One of the speakers, Shri Jaipal Reddy suggested reorganization of the police organization into two wings, one for investigation and the other for maintaining law and order. Shri Krishna Dev Rao, a teacher at NALSAR made a comparative study of the subject and raised the following issues: Who makes a decision to arrest; what is the mechanism to review arrests and what structural changes have been made in the police department to implement the guidelinesin D.K. Basu.
He favoured the idea of reclassification of offences and desired the introduction of alternate dispute resolution techniques in the criminal justice system. He pleaded for liberalization of the bail provisions and maintenance of records concerning the health of the persons arrested. A number of other speakers participated in the Seminar. Some of them supported the proposals in the Consultation Paper while some others opined that time is not ripe for making any substantial changes in the law of arrest.
Written Responses: A number of written responses have been received by the Law Commission dealing with the several proposals in the Consultation Paper. Prof. B.B. Pande of Delhi University suggested reclassification of the offences in the IPC into 'petty offences' and 'serious offences' inasmuch as the present classification into bailable and non-bailable, cognizable and non-cognizable is an inadequate classification. He pointed out several offences in the IPC, which according to him could be categorized as petty offences. Illegal arrests, according to him, can be classified into two broad categories, those which violate human rights and constitutional guarantees and those which violate the statutory provisions.
He supported the provisions of the CrPC (Amendment) Bill, 1994 proposing to amend inter- alia the provisions of the Code relating to arrest. Commenting upon the proposals in the Consultation Paper, he submitted that the object of the proposals contained in paras 3.1 to 3.3 can be achieved by directly amending section 41 instead of seeking to convert the cognizable into non-cognizable or non-bailable into bailable. He supported the other proposals in the consultation paper including the idea of decriminalizi ng some of the offences in the IPC.
Dr. G.S. Tiwari, Director in the Ministry of Defence emphasized the necessity of providing statutory safeguards to guard against abuse of power of arrest under the police. He opined that the vast discretion vested in the police under section 41 should be curbed. He referred to several undesirable practices being indulged in by the police, very often for oblique reasons. He however made it clear that the views expressed by him are his personal views and not that of his Ministry.
Dr. K.K. Paul, Joint Commissioner of Police (Crime), Delhi Police submitted that the proposals of the Law Commission do not appear to be practical and do not also take into account the ground realities. He submitted that several offences which the Law Commission has suggested be converted from cognizable to non-cognizable or from non-bailable to bailable, are serious offences and that any such change would prove counterproductive and would not help the police in maintaining law and order.
Maj. Gen. K.N. Mishra, AVSM (Retd), former Judge Advocate General (Army) supported the recommendations of the Law Commission in general and pointed out that very often the magistrates do not duly and properly perform their statutory duties and obligations thereby depriving the accused persons of their constitutional and legal protections. He supported the idea of amending section 41 of the Code.
Shri M.L. Sharma, IPS, IGP(CID) (Crime Branch), Rajasthan suggested that several offences like adulteration of foods and drugs, fouling the atmosphere and forgery etc. be made cognizable and bailable. Some other offences which are non-cognizable, he suggested, should be made cognizable. In particular he suggested that section 498A which is now a cognizable offence should be converted into a non-cognizable one.
Justice (Dr.) R.R. Mishra, a retired Judge of the Allahabad High Court supported the proposals in the Consultation Paper generally. However, he emphasized the apathy of general public even where offences are committed in their presence. He pointed out that the political pressures and influence are also responsible for some of the abuses by the police officers.
Shri Manmohan Prahviah, IGP (Intelligence), Orissa justified the power of arrest saying that the aggrieved public have come to see the arrest of culprits by the police as a first step in their yearning for justice. Any curtailment of this power, he said, will result in loss of public faith in the criminal justice system. He pointed out that the importance of custodial interrogation to elicit evidence has been recognized by the Supreme Court in State V. Anil Sharma AIR 1997 SC 3806. He also justified the power vested in the police by section 151 CrPC.
According to him, in Orissa, arrests do not routinely take place under sections 107 to 110 of the Code and that where group clashes are apprehended or during the time of elections or VIP visits, some anti-social elements are arrested as a part of bandobast duty and released later. He submitted that in the matter of exercise of power of arrest, the guidelines indicated in Report Nos. 2, 5 & 8 of National Police Commission be kept in mind. He pointed out that Indian society is generally perceived to be meek and relies considerably upon the armed police to keep order and hence police should not be weakened.
He suggested that the problem must be solved by strengthening the in-house mechanisms within the police organization and by insisting upon effective supervision by judiciar.- and not by amending the law. He stressed the necessity of transparency in the working of the police department and greater access of the public to police procedures and actions. He opined that the guidelines enunciated in D.K. Basu, if strictly observed, would remove any scope for abuse by the police.
The Inspector General of UP, Shri Jagat Singh has, in his comments on the Consultation Paper, agreed with the proposals contained in paras 3.1.1 and 3.1.2 of the Consultation Paper. So far as the proposals contained in para 3.1.3 is concerned, he has stated that no change is needed in the existing law and that the only modification needed is to provide that arrest should be made only before submitting the chargesheet in the court and that the arrested person should be sent to the court along with the chargesheet. He has agreed with the proposals contained in paras 3.2.1 and 3.3.
He has however opposed the proposal contained in para 3.4 of the Consultation Paper on the ground that sufficient legal and departmental safeguards are already available to the accused. So far as the proposals contained in paras 3.5 and 3.6 of the Consultation Paper is concerned, he has expressed his agreement thereto. With respect to the proposal contained in para 3.7 of the Consultation Paper, the IGP of UP has responded by saying that since no specific recommendations have been made in the said para, he is not offering any comments.
He has agreed with the proposal contained in para 3.8 of the Consultation Paper but opposed the proposal contained in para 3.10. With respect to proposal contained in para 3.12 of the Consultation Paper, his response was that since the proposal does not contain any specific recommendations, he is not offering comments in that behalf.
Shri N. Kumar, Senior Advocate opined that the provisions under sections 108, 109 and 110 CrPC merely add to the work-load of the magistrates and are unnecessary. If there is any definite allegation against any person it is always open to the police to file a chargesheet against him without arresting the accused.
With respect to section 151 CrPC he opined that it gives a draconian power to the police to arrest any person on mere suspicion and that this weapon is mainly used against the poor and helps to keep a vast segment of population under perpetual bondage. Shri Paramjit Singh Roy, Director (Prosecution & Litigation) and Additional Secretary to the Punjab Government has agreed with and welcomed all the proposals of the Law Commission except the one contained in para 3.4 (permitting the registered NGOs to visit police stations and other places of custody).
Shri A.K. Ganguly, Senior Advocate opined that instead of approaching the problem of arrest in isolation, the Law Commission may suggest a comprehensive reform touching all aspects of the problem such as recruitment and training of police officials, judicial officials and prosecutors, providing checks and balances on the exercise of powers by the authorities, mechanism by which they could be made accountable for their actions and restricting the power of arrest only to those cases where it is absolutely necessary.
He stated that the moment a police officer is made accountable for his actions, a sea- change occurs in his attitude. Once he knows that he cannot go scot free for his illegal actions, he becomes conscientious and is likely to perform his duties in accordance with law. All actions of police officers should be subject to scrutiny by an external agency. He suggested that the recommendations made in the Consultation Paper should be given effect to in a phased manner as suggested by him.
The Government of Rajasthan through its Principal Secretary, Home Affairs and Justice Department has welcomed the proposals of the Law Commission contained in paras 3.1.1 and 3.1.2, subject to certain exceptions. They submitted that in respect of bailable offences the formality of arrest and release on furnishing bail bonds is unnecessary and that the accused may be required to furnish surety bonds or a personal bond. A personal bond should also be insisted upon to ensure the presence of witnesses.
With respect to the proposal contained in para 3.1.3 of the Consultation Paper, the Government of Rajasthan has welcomed it subject to the qualification that offences like theft, robbery, dacoity, house breaking and receiving stolen property should not be made bailable. They suggested that some other offences in the IPC should be treated as non-cognizable and some others may be made non-bailable. Two other offences, namely, those under sections 476 and 505 IPC, they submitted, be made cognizable.
The Amnesty International suggested that the provisions in sections 107 to 110 of the Code be reviewed to ensure that they are not used to deny human rights' defenders their right to peaceful assembly, freedom of expression and freedom to protest peacefully. With respect to section 151, they suggested that it must also be reviewed to ensure against its misuse and that in case a human rights' defender is arrested thereunder, he must be produced before a judicial magistrate within 24 hours.
So far as the other amendments are concerned, they have invited our attention to the Brochure enclosed to the letter. On a perusal of the Brochure, we find that it mainly deals with prevention of torture and not so much with the power of arrest though the power of the police to arrest without warrant has also been discussed incidentally. For this reason it may not be necessary to deal with the contents of the Brochure at any length. The Amnesty International have also requested us to evolve a legal system minimizing the harassment and violation of the human rights of the citizens.
The IGP, Itanagar (Arunachal Pradesh) has sent a communication agreeing with all the proposals of the Law Commission.
The Bar Council of Maharashtra and Goa have suggested that the powers of the police be regulated keeping in view the guidelines laid down by the Supreme Court in D.K. Basu. They have suggested that offences under sections 498 and 498A be made bailable, but offences against property be made non-bailable. They suggested that the offences against the State, coins and weights be also made nonbailable. They supported the proposal for NGOs visiting the police stations and other places of detention and have suggested further that after the arrest, grounds for arrest shall be conveyed not only to the accused but be also to their relatives. Another suggestion is to make the offences under sections 307 and 498A compoundable.
Shri A. Palanivel, IGP (Law and Order), UP has expressed his views separately which are identical to those expressed by the IG, UP referred to hereinbefore.
The IGP, CID, Meghalaya has expressed the opinion that the proposed measures are likely to cause more harm than good in the militancy-affected areas like Meghalaya. He submitted that the acts of the police are, as it is, under tremendous public scrutiny and any further curtailment of the powers of the police would disable them from fighting the militancy effectively.
Dr. John V. George, IPS, IGP (Crime and Law and Order), Haryana stated in his written response that there is no statistical data or any definite basis for the impression that police are widely misusing their power of arrest without warrant. He submitted that the data collected by the Commission is of no significance and that overall, and on average, one person is arrested in every criminal case.
He submitted further that "in a country where the citizens have no identity cards, where floating population of a town is larger than the residential population, where large percentage of population are migrants and a person may live anywhere under any assumed name, arrest is an unavoidable exercise even in bailable offences. Additionally, Indian public do not expect the police to release an offender immediately after arrest. They would accuse the police of collusion in most such cases".
He also stated that courts in Punjab and Haryana and CBI special courts insist upon the accused being produced along with chargesheet in every case, even where the accused is on bail. He expressed the opinion that the categorization of the offences in IPC into cognizable and non-cognizable was made by the "British Colonialists" to cut down expenditure on law enforcement. This distinction should go, he said. He suggested that several offences in the IPC which are noncognizable now should be made cognizable.
He also opined that the proposal to limit the power to arrest an accused in the bailable offences, if implemented, would cause tremendous damage to maintenance of public order in the society. He suggested that several offences in the IPC may be made non-baliable, also because the public is not prepared to accept many of those offences being treated as nonbailable. He opposed the proposal to re-designate the offences punishable upto seven years as bailable. He opined that inasmuch as the directions in D.K. Basu are being implemented by the police and the courts properly, there is no need for incorporating them in the Code.
He opposed the proposal to permit the registered NGOs to visit police stations and other places of detention. With respect to arrest on the basis of suspicion, he stated "arrests are made on suspicion in investigation of offences against property. Technically all arrested persons are suspects till the case is proved in courts". With respect to the apprehensions of the Law Commission regarding clause (b) of sub-section (1) of section 41, he opined that the apprehension is unfounded. He stated that not a single person has been arrested for "carrying an agricultural implement during day time".
He expressed an apprehension that "if section 41 of CrPC is amended to curtail the power of arrest of constable on patrol, it would be better to withdraw all policemen from patrol duty". With respect to introducing and widening the compoundability of the offences and the concept of plea bargaining, the IG expressed the opinion that in the present scenario where the conviction rate is low, no one would come forward to make use of plea bargain facility and that compounding of offences is very rare in Indi.- hence, he says, no amendment is needed.
With respect to sections 109 and 110 of the Code, the IGP submitted that no arrests are made under this section and that the arrests are made only under section 151 read with any of the preventive provisions including sections 107, 109 and 110. He also submitted that since the police do not arrest any one on mere suspicion or merely for questioning, no amendment of law is required in that behalf.
He also submitted that the safety and well being of the arrested persons can be ensured by making appropriate provisions in the Police Manual and that the law need not be amended for the purpose. With respect to proposal regarding maintenance of a Custody Record, he stated that Police Manuals already provide for maintaining the minute to minute record regarding arrest and interrogation and that a case diary is also maintained besides the police station general diary.
In this view of the matter it is not necessary to introduce another record with respect to tortious liability of the State. The IGP stated, "the State may compensate individuals if it is proved that they were wrongly arrested and prosecuted. However, it would be disastrous to presume that all who were acquitted by the courts were wrongly arrested and prosecuted". With respect to maintenance of the uniform case diary under section 172 CrPC, he suggested that the suggestion may be implemented.
The Human Rights Council, Vishakhapatnam, have, in their response, supported the proposals of the Law Commission. They have also suggested that the categorization of the offences into cognizable and non-cognizable may be substituted by the classification 'grave offences' and 'minor offences'.