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Report No. 177

Proposals in the Consultation Paper:

We may next take up the proposals contained in Part Three of the Working Paper. The first proposal is contained in para 3.1.1. The proposal is that in respect of bailable and non-cognizable offences, no court shall issue an arrest warrant and that only summons shall be served through a court process server or by other means but not through a policeman. It was also proposed that the very expression "bailable" may have to be changed inasmuch as the said expression implied an arrest and an automatic bail by the police/court. While there was a good amount of support to this proposal there have also been dissenting voices.

Before we proceed to discuss this proposal we must make it clear that our immediate concern is with the arrestability of the person who is accused of committing a bailable/noncognizable offence. We are not concerned with nor are we suggesting any change in the punishment provided for the relevant offences. If the person is guilty of any of the said offences he can be proceeded with according to law and punished if found guilty. The limited question is whether there should be an arrest of such person either under the warrant of a magistrate or by the police.

So far as the arrest by police, without warrant, of a person accused of bailable and non-cognizable offence is concerned, the Code itself does not empower the police to do so simply because the Code, as it now stands, does not permit arrest without warrant in a noncognizable case (except for the limited purpose mentioned in section 42). But the fact remains that, as a matter of fact, in number of such cases arrests are made by the police. This is in fact admitted in so many words by Dr. John V. George, IPS, IGP (Crime and Law & Order), Haryana, which we have extracted in an earlier chapter.

He has stated in his written response 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". He also opposed the proposal in the Working Paper to curtail the power of the police to arrest an accused in bailable offences on the ground that if the said proposal is implemented, it would cause tremendous damage to maintenance of public order in the society.

After giving our due consideration to the pros and cons of the proposal contained in para 3.1.1 of the Working Paper in the light of the several responses received and opinions expressed at the Seminars, we are of the opinion that the police should be specifically barred from arresting any person accused of a noncognizable offenc.- whether bailable or otherwis.- without a warrant or an order of the Magistrate. We have in fact suggested insertion of a new section, section 60A, providing that no arrest shall be made except in accordance with the provisions of this Code.

There should be no question of the police being empowered to arrest, without warrant or an order of a Magistrate, any person accused of or against whom information has been received that he may have committed a non-cognizable offence. (Of course, the power of the court to issue a warrant even in a non-cognizable shall remain undisturbed.) [Accordingly, we recommend substitution/insertion of sub-section(2) of section 41 providing that police shall not arrest without a warrant or an order of a Magistrate, any person who is accused of having, or believed to have, committed a non-cognizable offence. [It would mean that there shall be no arrest in any case of non-cognizable offence (except under the warrant/orders of the magistrate), irrespective of the fact whether such offence is bailable or non-bailable].

Such course would go a long way in saving the people from harassment at the hands of unscrupulous elements among the police force and would also go a long way in reducing the number of undertrial prisoners in jails, circumstances commented upon both by the Supreme Court and the National Police Commission. It may be remembered that according to Annexure-II, bulk of arrests are in bailable offences and since most of the bailable offences are non-cognizable, these kind of arrests would be drastically curtailed.

Section 436, as it now stands, speaks of enlarging a person on bail, who has been arrested in connection with a bailable offence. The section evidently contemplates arrest of a person in a bailable offence, which is cognizable, inasmuch as no arrest can be made without a warrant in a non-cognizable case. In this view of the matter, no amendment is necessary in section 436. Of course, where a person is arrested in a non-cognizable case in pursuance of a warrant/order of a magistrate, and is produced before a magistrate, he can deal with him as provided in section 436.

The next proposal in the Working Paper is contained in para 3.1.2. The proposal is that in respect of the offences now categorized as bailable and cognizable by the First Schedule to the Code, no arrest should be made by the police without warrant and that in such cases only an appearance notice may be served upon the person directing him to appear at the police station or before the magistrate as and when called upon to do so, unless there are strong grounds to believe,
which should be reduced into writing and communicated to the higher police officers as well as to the concerned magistrates, that the accused is likely to disappear and that it would be very difficult to apprehend him or where the person concerned is a habitual offender. In respect of this proposal also there were both supporting and dissenting voices.

The opponents of this proposal who are by and large police officials have submitted that the said proposal, if implemented, would seriously disable the police from performing their functions, inter alia, the maintenance of law and order and a proper and effective investigation into offences.

This aspect is covered by our discussion and conclusion in respect of the proposal in para 3.1.1 where we have pointed out that there shall be no arrests in a non-cognizable case, whether bailable or not, except under the warrant/order of a magistrate. It may also be noted that according to clauses (a) and (b) recommended by us hereinabove, in the place of the existing clauses (a) and (b) in sub-section (1) of section 41, the police is entitled to arrest a person only in the situations specified therein.

In such a situation, it would be appropriate to suggest that in cases of cognizable/bailable offences punishable with seven years or less imprisonment, with or without fine, where the arrest of the accused is found not necessary but his cooperation or presence is called for the purposes of investigation, the police can serve a notice calling upon him to appear before the police during the course of investigation, or before the Court, as the case may be, whenever called upon to do so. The proposal in the Consultation Paper is affirmed, subject to the above discussion.

It may be necessary to clarify at this stage that by making the aforementioned recommendations, we are in no way interfering with the power of the Magistrate to issue warrants of arrest nor are we interfering with the definitions of or distinction between a summons case and a warrant case, in the matter of procedure, prescribed by chapters XIX and XX. Our limited concern, to repeat, is the power of police to arrest without warrant and/or without an order of a magistrate.

We have already stated hereinabove that in the light of the proposals we are making in this Report, it is not necessary to change the existing classification of offences into bailable and non-bailable and cognizable and non-cognizable. We are taking the said two classifications as they stand and are defining the powers of arrest and other incidental matters on that bases.

The next proposal of the Law Commission is contained in para 3.1.3 of the Working Paper. The proposal is that the offences punishable with seven years imprisonment or less at present (except the offences punishable under sections 124, 152, 216A, 231, 233, 234, 237, 256, 257, 258, 260, 295 to 298, 403 to 408, 420, 466, 468, 477A and 489C.- and which are treated at present by the court as cognizable and non-bailable offence.- should be treated as bailable/cognizable offences and be dealt with accordingly.

It was clarified that insofar as excluded offences are concerned, i.e., offences which are mentioned within the brackets, the present position will remain unchanged. This proposal was seriously opposed by almost all the police officers while it was appreciated by the proponents of human rights and the members of the Bar in general.

This proposal in the Working Paper however has to be examined in the light of the recommendations made by us hereinabove, namely, not to change the present classification of offences into bailable and non-bailable and cognizable and non-cognizable and to make a further classification, in the context of power of arrest without warrant, of offences committed in the presence of the police officers and offences which are reported to the police officer after they are committed.

We have also suggested that in case of offences punishable up to seven years and which are treated as cognizable and non-bailable by the Code, arrest can be made only where the circumstances mentioned in sub-section (1) of section 41 (recommended in this report) are satisfied. In the light of the said proposals, it is not necessary to pursue the proposals contained in para 3.1.3 of the Working Paper.

In para 3.2.1 of the Consultation Paper, a proposal was put forward to amend section 41 so as to provide that no person shall be arrested merely on the suspicion of complicity in an offence. It was suggested that an arrest should be made only where the police officer is satisfied prima facie on the basis of the material/information with him that the person is involved in a crime/offence for which he ought to be arrested without a warrant. Reference was also made in that connection to the decision of the European Court of Human Rights in Fox, Campbell and Hartley v. U.K. delivered on 30th August, 1990 declaring that section 11 of Northern Ireland (Emergency Provisions) Act, 1978 is violative of article 5(1) of the European Convention on Human Rights.

The section empowered a police officer to arrest a person if he is "suspected of being a terrorist". The court held by a majority that mere suspicion, however bona fide held, cannot be a ground for arrest. It was also pointed out in the Consultation Paper that pursuant to the said decision, section 11 was amended and the aforesaid words were substituted by the words "has been concerned in the commission, preparation or instigation of acts of terrorism". It may be remembered in this connection that section 41(1)(a), as it stood, provided for arrest without warrant of a person against whom "a reasonable suspicion exists" of his having been concerned in any cognizable offence.

The IGP, Haryana has stated in his written response that "arrests are made on suspicion in investigation of offences against property. Technically all arrested persons are suspects till the case is provided in courts". Frankly, we are unable to appreciate the mind-set and the approach of the certain police officers evidenced by the said statement. It is difficult to countenance the argument that a man can be deprived of his liberty merely on suspicion; indeed, Section 41 even as it stands now, speaks of reasonable suspicion and not mere suspicion.

We have already pointed out the fall-out of the arrest of a person and how his image and reputation suffers in the eyes of the society by such arrest. We are therefore of the opinion that unless there is some specific information on the basis of which the police officer believes it reasonably probable that the person is involved in an offence, that it is a cognizable offence, and for which it is necessary to arrest him i.e., in the circumstances set out in section 41 as proposed to be amended herein, there can be no question of an arrest.

With a view to drive home the point, let us imagine a situation where there is a provision saying that an order of censure can be passed against a public servant by his superior without notice to him; how would such public servant feel? Similarly, suppose if there is a provision which says that a public servant can be suspended from service pending inquiry on the basis of suspicion or on the basis of reasonable suspicion, how would it sound?

One can always say that suspension pending inquiry is no punishment, that it is only a temporary measure and that if the person is not found guilty ultimately, he can always be restored all the antecedent benefits with retrospective effect. Let us repeat that liberty is no less important than the service career of a public servant. Indeed, the decision of the European Court of Human Rights and the consequent amendment of the Northern Ireland (Emergency Provisions) Act, 197.- which is indeed an anti-terrorist enactmen.- indicates the unacceptability of the proposition that a person can be arrested merely on suspicion or merely on a reasonable suspicion of his being concerned in a cognizable offence.

The question then arises whether there should be a specific provision in the Code providing that no person shall be arrested on mere suspicion or on reasonable suspicion of his having been concerned in a cognizable offence. We do not think that any such specific provision is called for in view of the fact that section 41(1)(a), as recommended by us in this chapter, permits arrest only in certain specified situations which necessarily means and implies that no arrest can be made on mere suspicion.

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