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Report No. 177

Clause (a) of sub-section (1) of section 41 speaks of arrests of four categories of persons, viz.:

(i) A person who has been concerned in any cognizable offence;

(ii) A person against whom a reasonable complaint has been made of his having been concerned in any cognizable offence;

(iii) A person against whom credible information has been received of his having been concerned in any cognizable offence; and

(iv) A person against whom a reasonable suspicion exists of his having been concerned in any cognizable offence.

It would be appropriate to deal with each of these four categories separately.

Let us take the first category: "(i) person who has been concerned in any cognizable offence". What is the meaning of the words "concerned in"? The expression is ambiguous and vagu.- and vagueness or ambiguity is not permitted when we are dealing with the liberty of a citizen, as would be explained hereinafter. It is not even a case of vesting the police with the power to arrest on their subjective satisfaction.

For it is well-known that where a subjective power is sought to be conferred, the Legislature uses the expressions "if there are grounds", "has reason to believe", "is satisfied" or "there are circumstances suggesting (a particular inference)" (vide the celebrated decision of the Supreme Court in Barium Chemicals Limited v. Company Law Board, AIR 1967 SC 295).

It has been held in the said decision that where such expressions are used, the entire process is not subjective but that while the existence of relevant material/information is objective, drawing of inference therefrom alone is a subjective process. It has also been held that the only check upon the subjective power is the existence of circumstances/material/information; in case it is established that there was no material/information or factual basis, the exercise of power becomes illegal.

But then look at the first category contemplated by section 41(1)(a). You will find that even these protective words are not there. The matter is left entirely to the sole and absolute discretion of the police officer. It is true that the courts have tried to reduce the rigour of this provision by saying that there must be some information or material before the police officer on the basis of which he must be satisfied prima facie that the person appears to be guilty of offence and that he should be arrested.

At the same time, the courts have said that since he is the officer to make a decision on the spot, the matter must be left to him to decide whether there are reasonable grounds for him to arrest the person. The question i.- why should not the Act itself contain the requisite safeguards. In Chapter Four we have pointed out that the Law Commission has been repeatedly suggesting introduction of provisions precisely designed to regulate this power by saying that before the arrest is made, the officer must have with him some material or information on the basis of which he is fairly and honestly satisfied that the person must be arrested.

Now coming to the second, third and fourth situations contemplated by clause (a) of section 41(1), the position is slightly better or wors.- depending upon the way you look at them. Firstly, here again there are no words which speak of formation of a reasonable belief or a reasonable satisfaction by the police officer before arresting the person. It is true that when clause (a) speaks of a 'reasonable complaint' or 'credible information' or 'reasonable suspicion', it undoubtedly means reasonable or credible in the opinion of the police officer but opinion about what?

It is undoubtedly again about the person being 'concerned' in a cognizable offence. The said phrases therefore do not advance the cause of liberty, much of they revolve around the expression "having been concerned in a cognizable offence". The conclusion appears inescapable that the language actually employed falls short of the standard which must be observed while dealing with the liberty of the citizen.

One course to redress this situation may be to introduce a provision in terms of sub-section (1A), which was suggested by the 152nd Report of the Law Commission on Custodial Crimes (1994). We however think that instead of retaining clause (a) in sub-section (1) as it stands and inserting a new sub-section, sub-section (1A), as suggested by the said Report, the more appropriate course would be to substitute clause (a) with a new clause containing the requisite safeguards.

But before we actually seek to set out the provision which is to be substituted in the place of existing clause (a), it would be appropriate to examine the question whether clause (a) of section 41(1), as it stands, can be said to be a reasonable law or a law laying down reasonable procedure within the meaning of Article 21 as construed in Maneka Gandhi *. Since Article 21 must be read as taking in Articles 14 and 19 as well, as per the said decision, can it be said that the procedure prescribed by section 41(1)(a) is "right and just and fair and not arbitrary, fanciful or oppressive". Liberty is the most precious right of a citizen.

Only a person who is deprived of the liberty can understand the significance and value of liberty. In any society including ours the very fact of arrest places a person's reputation under a cloud. Arrest by police is by itself humiliating and demeaning. It reduces the individual's self-respect. His image in the society suffers.

Is it reasonable and fair and just to vest such enormous power in any and every police office.- indeed in every police constable in this countr.- to deprive a citizen of his freedom and liberty merely because he thinks that the person is concerned in a cognizable offence, without being prima facie satisfied on the basis of some relevant material or information that the person concerned appears to be prima facie guilty of a cognizable offence?

It is interesting to note the amount of faith the Parliament has reposed in the good faith and fairness of the police constables of this country. A police constable, who is hardly a matriculate (School higher secondary examination pass), whose training is almost nil, who is hardly aware of the constitutional, statutory and human rights of the accused, who is financially in a bad shape all the time and who is so badly treated by his superiors that he passes on that bad language and bad treatment to the people whom he comes across in course of his duties.

In this connection, it is well to remember that even if the arrest is made unlawfully and unjustifiably, the remedies available to an individual in our legal system are almost nil, practically speakin.- an aspect dealt with hereinbefore.

1.* It is true, the decision in Maneka Gandhi was rendered long after the enactment of the present Cr.P.C. and that the interaction of Article 21, 19 and 14 was not and could not have been in the contemplation of Parliament when it enacted the Code, yet that circumstance is on excuse nor a ground for not testing the said provision on the touchstone of Article 21 as interpreted and adumbrated in Maneka Gandhi.

Even assuming that section 41(1)(a.- at least in par.- provides for arrest on the subjective satisfaction of the police officer, would it be reasonable to predicate the liberty of a citizen on the subjective satisfaction of a police office.- indeed any and every police officer. In this connection, it is well to remember that the Supreme Court has held repeatedly that predicating the fundamental right of a citizen on the subjective satisfaction of an executive official is impermissible under our Constitution and it would be a clear case of placing an unreasonable restriction upon the fundamental right of the citizen.

In State of Madras v. V.G. Row (1952 SC 196) the court said: "The formula of subjective satisfaction of the government or its officers, with an Advisory Board thrown in to review the materials on which the government seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights". [Peoples Education Society, banning case]

This was so said in case where the act of the executive official was indeed subject to review by an Advisory Board. In R.M. Seshadri v. D.M. Tanjore (1954 SC 747), a condition in Licence requiring the Exhibitor to exhibit one or more approved films, as may be specified by the government, was struck down on the reasoning that "a condition couched in such wide language is bound to operate harshly upon the cinema business and cannot be regarded as a reasonable restriction".

In Maneklal Chotelal v. Makwana (1967 SC 1373) it was held that under Articles 14 and 19 "if an uncontrolled and unguided power is conferred, without any reasonable and proper standards or limits being laid down in the enactment, the statute may be challenged as discriminatory". Similarly, in Harichand v. Mizo Dist. Council (1967 SC 829) it was held that a provision of a Regulation vesting unrestricted power in the licensing authority in the matter of grant or refusal of licence, without laying down any standards or criteria, was unreasonable and bad.

In State of Maharashtra v. Kamal (1985 SC 119), the Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975 was struck down by the Supreme court on the ground that the Act did not provide any guidelines for exercising the power under section 2(f) (power to declare a land as 'vacant land') nor were any safeguards against arbitrary exercise of discretion provided by the Act.

The above principles enunciated with respect to fundamental rights in Article 19 are equally applicable under Article 21 inasmuch as it is now declared (Maneka Gandhi) that a law within the meaning of Article 21 has to be a reasonable and non-discriminatory law tested on the touchstones of Articles 19 and 14. Indeed, the liberty guaranteed by Article 21 is more valuable and precious than the freedoms guaranteed by Article 19.

Deprivation of liberty, i.e., incarceration in the police custody even for 24 hours is worse than deprivation of property for one year. It may also be recalled in this connection that a eleven-judge Constitution Bench decision in R.C. Cooper v. UOI (1970 SC 564) has established that any restriction placed upon a particular fundamental right need not necessarily be examined only with reference to that right but must have to answer the other fundamental rights as well if it impinges on such other rights.

The courts, it is true, have been saying over the last several decades that the power of arrest cannot be exercised without any justification and that the police officers must exercise this power fairly and honestly. At the same time, the courts have also said that reasonableness or justification of an arrest is a matter for the police officer to determine in the given circumstances of each case and that it is not possible to lay down exhaustively what do the expressions "credible information" or "reasonable complaint" or "reasonable suspicion" in section 41(1)(a) mean. The result is that the police officer's powers under section 41 remain unchecked. It would be interesting to see in how many cases, have the courts punished the police officer for making a wrongful or unjustified arrest. It would not even be one per cent.

We must say emphatically at this stage that the argument that there must be fear of police in the public (for an efficient discharge of the functions of the police to maintain law and order) does not appeal to us. This is really a hangover of the colonial past, where it suited the colonial power to have a (lower) bureaucracy alienated from people but loyal to its master.- a truism emphasized by the National Police Commission. In a democratic society, the police should also be imbued with the democratic spirit and a spirit of service towards the peopl.- not an attitude of contempt or superciliousness. In U.K., a policeman is looked upon with trust, as a friendly creature.

It is true that the population explosion and the shrinking material resources in the country is giving rise to an all-round sense of dis-satisfaction and that the daily tales of corruption of very high order is making the people disenchanted with the very system we are living in. But this is no answer to police high-handedness. If anything, police should not add to the sense of frustration and to a feeling of brooding injustice. On the contrary, it should try to curb these unlawful activities.

It would not do if the police looks upon the mass of people, most of them no doubt poor, as potential criminals who, given a chance, are bound to commit some or other cognizable crime. We do not think that bulk of our population, poor that they are, are all potential criminals. There are undoubtedly some such elements, but those are hardly kept off their activity for "fear of police".

One of the police officers (DGP (Crime and Law & Order) Haryana) has stated in his response that if the power of arrest of constable on patrol is to be curtailed, it would be better to withdraw all policemen from patrol duty. We are unable to appreciate this argument. We are not suggesting that the power of arrest inhering in the police constable should be taken away.

What we are suggesting is to regulate that power, to make it reasonable so as to ensure that that power is not exercised whimsically or for oblique purposes and for extortion and harassment, a fact situation recognized by the National Police Commission too. He can certainly arrest while on patrol but only when he has reasonable grounds to believe that such person, has or is about to commit a cognizable offence and that it is necessary to arrest hi.- and not to arrest persons in a casual manner.

If this apprehension were to be well-founded, the Directors General of U.P., Rajasthan and Arunachal Pradesh would not have agreed with our proposals in the Working Paper, as indicated hereinbefore. We may reiterate at this stage our classification of the offences, in the context of power of arrest, into (a) those offences which are committed in the presence of a police officer and (b) those offences which are reported to the police officer after they are committed. Once this distinction is kept in mind, as explained by us hereinbefore, many of the apprehensions of the law enforcement authorities would be allayed.

Now let us take up clause (b) of sub-section (1) of section 41. This clause is not only vague but is highly objectionable because it constitutes the police officer the sole judge of the fact mentioned therein. Firstly, what is an "implement of house-breaking"? A screw-driver can also be such an implement. Many tools used by mechanics and agriculturists can also be used as implements of housebreaking. There are hardly any implements meant exclusively for house-breaking.

Secondly, the person must establish the "lawful excuse" for possession of such an implement to the satisfaction of the police officer/police constable. If he is not satisfied, he will arrest him and put him up in the lock-up. This power is not confined to dark hour.- say, between 10.00 pm to 3.00 a.- but extends to all twenty-four hours. In our opinion, this is an extraordinary and unusual provision totally at variance with a civilized society and must go. It is exclusively used to harass poor and indigent persons and is a source of harassment. We suggest that clause (b) of sub-section (1) of section 41 be deleted.

Before we suggest the replacement of clause (a) of sub-section (1) of section 41, it is necessary to advert to yet another circumstance, viz., the definitions of "cognizable offence/cognizable case" and "non-cognizable offence/non-cognizable case". On this aspect, we may refer to the recommendation of the National Police Commission referred to in Chapter Four of this Report. The NPC has recommended a change in the definition of the said expressions.

In short, their reasoning is that the cognizability of an offence and the power of police to arrest without warrant should be delinked: cognizability should now be linked to power of the police to investigate into that offence without orders from a magistrate; in other words, the issue of arrest should be determined on grounds different from the ground that the offence is a cognizable one; merely because an offence is cognizable one, it does not mean that arrest should or can be made; whether to arrest a person/accused must depend upon other factors; cognizability of the offence shall only be one of the factors in determining whether arrest should be mad.- says the NPC.

Though this recommendation appears to be attractive at first look, it does not appear to be advisable to adopt. We may explain: the meaning and scope of a "cognizable offence" cannot be fully gathered from looking at its definition in clause (c) of section 2 (which speaks only of arrestability without a warrant or order from a magistrate); it would be necessary to refer to sections 155 and 156 also in chapter XII of the Code.

Section 155(2) says that "no police officer shall investigate a noncognizable case without the order of a magistrate having power to try such case or commit the case for trial". Sub-section (1) of section 155 empowers the police merely to enter the substance of such information in the prescribed book and refer the informant to the magistrate. Section 156, on the other hand, empowers an officer in charge of a police station to investigate any cognizable case without the order of a magistrate.

In other words, a cognizable offence means an offence in which (a) the Police can arrest the person without a warrant or order from a magistrate and (b) the Police can investigate without an order from the magistrate. Correspondingly, in case of a non-cognizable offence, the Police can neither arrest without a warrant or order from a magistrate nor can they investigate into it without an order from a magistrate.

If a cognizable offence is made only investigabl.- if we can use that expressio.- without an order of a magistrate but not "arrestable" without a warrant or order from a magistrate, the power to arrest would depend upon the provisions in chapter V and section 157 alone. But here again, the close nexus between cognizability and arrestability cannot be denied. We may reiterate that the categorization into cognizable/non-cognizable in the Code is based upon a reasonable and cogent basis viz., the need to arrest the man for one or the other of the relevant reasons. (See Chapter Three of this Report). There appears no good reason for changing the said categorization or the criteria upon which it is based.

In the light of the above discussion, we recommend that the existing clauses (a) and (b) of sub-section (1) of section 41, be substituted by the following clauses:

"(a) who commits, in the presence of a police officer, a cognizable offence;

(b) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to seven years, (whether with or without fine), if the following conditions are satisfied, namely:-

(I) the police officer has reason to believe on the basis of that information that such person has committed the said offence;

(II) the police officer is satisfied that such arrest is necessary-

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence or for the reason that detention of such person in custody is in the interest of his safety; or

(c) to prevent such person from, causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to the police officer; or

(e) that unless such person is arrested, his presence in the court whenever required cannot be ensured; and the police officer records his reasons in writing.

(ba) against whom credible information has been received that he has committed a cognizable offence punishable with, imprisonment for a term which may extend more than seven years (whether with or without fine) or with death and the police officer has reason to believe on the basis of that information that such person has committed the said offence;".

We are of the opinion that if the amendments mentioned above are carried out, it may not be necessary to change or amend the definition of the expression "bailable offence". In any event, the bailability or non-bailability is relevant more for the purpose of and on the question of bail. Section 41(1)(a) and (b) as suggested by us empowers the police officer to arrest a person if he has committed a cognizable offence; it does not refer to bailability or otherwise of the offence. The relevance of bailability of the offence is dealt with by us hereinafter while discussing the provisions relating to bail.

In such a situation, all that would be necessary to provide is to say, by way of a separate section, section 60A, that "no arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for such arrest". This is for the reason that according to Annexure II a large number of arrests are being made in bailable offences, most of which offences are bound to be non-cognizable offences. We accordingly recommend that the following new section, section 60A, be inserted in the Code:

"60A. No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest."

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