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Report No. 177

Annexure-I*

D.O.No. PPS/CLC(JR)/99 July 20, 1999

Chairman

Justice B. P. Jeevan Reddy
Law Commission of India
Shastri Bhawan
New Delh.- 110001

Dear Shri Justice Venkatachaliah,

Section 41 of the Code of Criminal Procedure, 1973 empowers any police officer to arrest any person, without an order from a magistrate or without a warran.-

"(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or

(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of housebreaking; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing.

Sub-section (2) vests the power to arrest any person specified in section 109 and 110 of the Code in any officer in-charge of the police station. Section 46 prescribes the mode of arrest, while Section 47empowers any police officer to search any place where he has reason to believe that any person to be arrested has entered into, or is within that place.

Section 50 of course creates an obligation on police officer arresting a person without warrant to communicate to the person forthwith full particulars of the offence for which he is arrested or other grounds for such arrest. Section 51 empowers the police officer to search a person arrested. Section 53 and 54 provide for examination of the accused by a medical practitioner at the request of the police officer and at the request of the arrested person respectively.

Section 56 and 57 (as well as section 50) which have been enacted to accord with the protection provided by clause 1 of article 22 of the Constitution provide that the police officer arresting a person without warrant shall produce him before a magistrate as soon as possible, and without unnecessary delay, and that such period of arrest shall not exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the magistrate's court. There are several other provisions of law both in the Code of Criminal Procedure and several other enactments which empower the police officer to arrest a person without a warrant.

2. The power to arrest a person without a warrant on reasonable suspicion or under the belief that he is concerned in any cognizable offence is an awesome power vested in one of the civil service.- probably the only armed civil service in our polity. Inasmuch as this power, vast as it is, is liable to misuse and has been very often misused, the Supreme Court and the High Courts have, on several occasions, explained the true content and spirit of the said provisions and have laid down the guidelines governing and regulating the exercise of the said power. Even so, the misuse and abuse of the said power remains practically unabated.

Several instances have come to light where there has been a gross misuse of the said power to the great detriment of the life and liberty of the citizens. Indeed, a certain section of the public holds the view that this power requires to be drastically curtailed. According to them the power to arrest should be restricted to major crimes like murder, dacoity and to habitual offenders and that in all other cases the arrest can be effected by the police only under a warrant of arrest issued by the court.

There is, of course, the other view that the rising crime rate makes it necessary to vest suchdiscretionary power in the police. These are all questions which we propose to examine exhaustively and to suggest to the Government and the Parliament the appropriate changes required in the aforesaid provisions and other like provisions in other enactments. The law respecting bail shall also be a component of this study.

3. To enable us to arrive at a proper conclusion on the aforesaid question, we must have empirical data collected by an expert body. In the course of discussions which I had with you on Sunday, you had suggested that it would be possible for the Human Rights Commission to constitute a committee of high police officials (retired or working),
who shall select four districts in the country as case studies and find out the number of arrests made by the police in that district in a given year without warrant, the number of arrests which were made without registering the crime, the number of cases in which the person arrested was released without filing a charge-sheet and the length of his detention, the number of cases in which charge-sheets were filed and the number of cases in which the prosecution resulted in conviction.

It would also be necessary to categorise the offences in connection with which the persons were arrested, the period of the detention in police and in judicial custody, the time taken for concluding the prosecution against them and if a person is kept in detention, the number of occasions on which he was not produced before the court on the dates of hearing. It would also help us if any other relevant and incidental details and data, which the committee may think relevant, is also made available to us.

4. The Law Commission of India would be grateful if you can appoint an expert committee and make data collected by them and findings recorded by them available to us. We would also welcome any suggestions, ideas and recommendations which such expert body may record on the above subject keeping in view the recommendations contained in the Police Commission Reports.

With warm regards,

Yours sincerely,
Sd/-
Justice B.P. Jeevan Reddy

Shri Justice M.N. Venkatachaliah,
Chairperson,
National Human Rights Commission,
1st Floor, Sardar Patel Bhawan,
Parliament Street,
New Delhi



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