Report No. 177
The Court then referred to the provisions under sub-heading 'B-Arrest Without Warrant' in chapter five of the provisions of Code of 1898 and then made the following observations:
"There can be no manner of doubt that arrests without warrants issued by a Court call for greater protection than do arrests under such warrants. The provision that the arrested person should within 24 hours be produced before the nearest Magistrate is particularly desirable in the case of arrest otherwise than under a warrant issued by the Court, for it ensures the immediate application of a judicial mind to the legal authority of the person making the arrest and the regularity of the procedure adopted by him.
In the case of arrest under a warrant issued by a Court, the judicial mind had already been applied to the case when the warrant was issued and, therefore, there is less reason for making such production in that case a matter of a substantive fundamental right. It is also perfectly plain that the language of Art.22 (2) has been practically copied from ss.60 and 61, Criminal P.C. which admittedly prescribe the procedure to be followed after a person has been arrested without warrant.
The requirement of Art.22(1) that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest indicates that the clause really contemplates an arrest without a warrant of Court, for, as already noted, a person arrested under a Court's warrant is made acquainted with the grounds of his arrest before the arrest is actually effected."
As a matter of fact, the wide and extensive power conferred upon the police officers to arrest a person without warrant by the provisions contained in the present Code and its predecessor has been troubling the courts for more than 100 years. The courts have been saying that before arresting a person without warrant, the police officer must form an opinion that the facts or information before him call for the exercise of the power under section 41(1)(a).
They have been holding repeatedly that arrests under chapter five are not to be made capriciously and that the power must be governed by and must be exercised in accordance with the rules and principles of the Code and that there must be proper justification for every arrest. (It must be remembered that the expression "police officer" in chapter five includes even a police constable.) While saying that every arrest under this chapter must be justified and must be based upon a reasonable belief of the police officer that in the light of the facts and information before him the arrest of the person is called for, the courts have said, at the same time, that it is the police officer who has to make this judgment.
The question is, whether any remedy is available to a person who has been subjected to an unjustified or unlawful arrest?
The answer is: Theoretically yes, but practically none. We may proceed to explain:
If a person is illegally arrested or is arrested without any justification whatsoever or where the arrest is proved to be mala fide or actuated by extraneous considerations, the police officer concerned can be prosecuted for wrongful confinement of that person which is an offence under section 342 of the Indian Penal Code; if the wrongful confinement is for three or more days it is section 343 and in case it is for ten days or more, it would be section 344. Sections 343 and 344 are aggravated forms of the offence specified in section 342.
Here again if the police officer who arrested the person is an officer who is "not removable from his office save by or with the sanction of the government", he cannot be prosecuted for such act except with the previous sanction of the concerned government. The said protection is provided by section 197 of the Criminal Procedure Code. The protection no doubt applies where the offence is "alleged to have been committed by him (public servant) while acting or purporting to act in discharge of his official duty".
The meaning and interpretation of these words have led to a good amount of controversy. On one hand the argument is that since committing an offence is no part of official duty of any public servant, previous sanction is not necessary for prosecuting a public servant, say a police officer, for the offence under sections 342/343/344. The contrary reasoning is that if the aforesaid interpretation is placed, the very protection provided by section 197 becomes meaningless and that therefore so long as the alleged offence is committed by the public servant while purporting to act in discharge of his official duty, the protection avails.
Leaving aside this legal controversy, the fact of the matter is that the government very rarely grants the previous sanction for prosecution of a police officer for the offence of wrongful confinement. In any event, the arrest is effected in a large majority of the cases by the police officers of lower ranks, who are removable from their office without the sanction of the government. In the case of such lower level officers, the protection of section 197 is not available and they can be prosecuted for wrongful confinement in case of an illegal or unwarranted arrest, as stated above, but such a prosecution is an impracticable proposition.
If a police officer is so prosecuted, whether he is a police constable or sub-inspector or inspector, the whole police force, barring rare exceptions, would not only try to protect the officer but would also harass the complainant in several ways so as to compel him to withdraw it. It is this fear and apprehension, which cannot be said to be unfounded, which constitutes the reason for almost a total absence of such prosecutions of police officers. Notwithstanding the fact that a good number of arrests made are not lawful, no person ordinarily dares to challenge the might of the police department.
It is true that in case a police officer exercises his powers illegally or for oblique reasons he can be proceeded against departmentally (by way of disciplinary proceedings) and appropriate punishment can be imposed upon him. But such proceedings too are few and far in between. Only where the number of arrests are large, and totally arbitrary and illegal, and the human rights groups or political parties take up the cause of the victims, such a course would be adopted; otherwise the probability of such action is very little.
In any event, the victim will not be a party to such disciplinary proceedings; he can only be a witness. The conduct of the disciplinary case will be in hands of the department. The complainant/victim has no control over the course of proceedings. It is said that in the 1990s, a good number of police officers were dismissed from service in Punjab, invoking proviso (c) to clause (2) of Article 311 of the Constitution of India but those dismissals were not for mere wrongful arrests but for much greater crimes, e.g., murders in police custody, fake encounters, cold-blooded murders and so on.
It is true that section 7 of the Police Act, 1861 (which Act is continuing in force by virtue of Article 372 of the Constitution) provides for dismissal, suspension or reduction in rank "of any police officer of the subordinate ranks whom they (the higher officials) shall think remiss or negligent in the discharge of his duties or unfit for the same". (Subordinate ranks of police force means officers below the rank of Deputy Superintendent of Police).
Section 7 also provides for imposition of fine not exceeding one month's pay, confinement to quarters for a term not exceeding 15 days in case of a police officer of the subordinate rank performing the duties "in a careless or negligent manner or who by any act of his own shall render himself unfit for the discharge thereof (discharge of his duty) " But it is a matter of common knowledge that action under this section is very rarely taken.
So far as the civil remedy of damages in torts for a wrongful arrest is concerned, the position is lot more gloomy. The law concerning claims for damages for tortious acts of government and its officers in India has been vitiated by the dual character of the East India Company which once ruled this country, i.e., of being both a ruler and a trader.
The Government of India Act, 1858, the Government of India Act, 1919 and the Government of India Act, 1935, continued this dual character. These Acts provided that the liability of the Government of India in such matters shall be the same as was obtaining immediately prior to these Acts, which really means the dual character of the East India Company. Unfortunately, even Article 300 of our Constitution too has continued the same position. Article 300 reads as follows:
"300. Suits and proceedings- (1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.
(2) If at the commencement of this Constitution-
(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and
(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings."
While we do not propose to expatiate upon the meaning and implications flowing from the said article, it may be necessary to examine the position with reference to police officials. The duties of the police officers are to maintain law and order and public order.
This function is relatable to sovereign functions of the State; if so there is a total immunity in favour of the State against any action for damages for wrongful confinement. (We are proceeding on the assumption that a civil suit will be filed against the State for damages and not against the individual police officer; this assumption is made for the reason that a suit for damages against an individual police officer would not give satisfaction to the claimant even if he succeeds because of the difficulties in execution; it is for this reason that such suits are filed against the State as such, whether Central or State, inasmuch as State is the master of such police officers and is vicariously liable for the acts of their servants.)
We may refer to the decision of the Supreme Court in Kasturi Lal v. State of U.P. (AIR 1965 SC 1039). The facts of the case are interesting. The plantiff was arrested by the police officers in UP on suspicion of possessing stolen property. On search of his person, a large quantity of gold was seized under the provisions of the Code of Criminal Procedure. Ultimately he was found not guilty but the seized gold was not returned to him inasmuch as the head-constable in charge of the 'malkhana' (property room) had absconded with valuable properties stored therein including the gold seized from the plantiff.
When the plantiff brought a suit for the return of the gold or in the alternative for its value, the State set up the defence of sovereign immunity. It contended that inasmuch as the seizure of the gold from the plantiff was in discharge of their official duties by the police officers conferred upon them by the Code of Criminal Procedure, the acts of the police officers pertain to the sovereign powers of the State.
On the basis of the evidence adduced before the court, it was found even by the Supreme Court that the manner in which the gold seized from the plantiff was dealt with at the 'malkhana' showed gross negligence on the part of the police officers and that the loss suffered by the plantiff was due to the negligence of police officers of the State.
Yet, it was held that since the act of negligence was committed by the police officers while dealing with the property of the plantiff which they had seized in exercise of their statutory powers and since the power to arrest a person, to search him and to seize property found with him are powers conferred upon the specified officers by the statute, their powers must be properly categorized as sovereign powers.
If so, the Supreme Court held, the suit for damages against the State must fail because of the position flowing from Article 300 of the Constitution of India which continues the pre-constitutional position in the matter of liability of the Government of India or the government of a State in relation to their respective affairs. Accordingly, the suit was dismissed.
The Supreme Court however recognized the inequity inherent in the said position and accordingly made observations recommending to the State to make a law (as contemplated by article 300 itsel.- underlined portion) defining the liability of the State in such matters. Unfortunately, the State has not moved in the matter so far though more than 36 years have passed by since then.
In a later decision rendered by a two-judge Bench of the Supreme Court in N. Nagendra Rao v. State of A.P. (AIR 1994 SC 2663), observations have been made as to the inequity inherent in the situation now obtaining under Article 300 and also upon the inaction of the State (Parliament/State Legislatures) to enact a law in that behalf. Yet it being a two-judge Bench, it has not purported to, nor could it, overrule the decision in Kasturi Lal, which is a decision rendered by a Constitution Bench of five-judges.
In this context, we must refer to a recent innovative trend being adopted by courts. (a) In Challa Ramakrishna Reddy v. State of A.P. (1989 AP 235), the A.P. High Court held that where the fundamental right of a citizen is violated, the plea of sovereign immunity would not be available. This decision has since been affirmed by the Supreme Court in AIR 2000 SC 2083 (State of A.P. v. Challa Ramakrishna Reddy).
(b) In cases of fake encounters and custodial deaths, the Supreme Court and the High courts have been awarding token, ad hoc amounts towards damages in proceedings under article 32/226 of the Constitution of India, leaving the aggrieved parties to a suit for damages where the proper damages awardable would be determined. This is undoubtedly a heartening trend but in present-day Indian conditions, a suit for damages against the State for police excesses is still a rarity.
It is for all the above reasons that we had mentioned earlier that the remedy available to a citizen for a wrongful or unjustified arrest is practically nil, though theoretically it is available in law.
The everyday situation is that wherever the arrest is found to be illegal, unwarranted or unjustified, the man is set free, may be sometimes unconditionally. But that is all that happens. Nothing happens to the police officer who has unlawfully or unjustifiably interfered with the liberty of a citizen and/or has wrongfully confined the person, whether in police custody or elsewhere. This position has indeed emboldened some police officers to abuse their position and harass citizens for various oblique reasons.
They feel secure in their knowledge that any wrongful or illegal act on their behalf would not affect them, their careers or their prospects in service; all that would happen is, the person arrested would be let off by the courts. It is this situation which has also got to be remedied. (Some sanction, some liability, some punishment has to be provided for a police officer who deprives a person of his liberty mala fide or for oblique reasons.
Of course, merely because a person arrested is not prosecuted or is not convicted, it does not necessarily mean that the arrest was illegal or mala fide. But where the court finds the arrest to be wholly unjustified or an instance of abuse of power, the court must have the power to make appropriate orders against such police officer, either suo motu or on the application of the person so arrested unlawfully. Indeed, an obligation should be placed upon the court to make such orders wherever the arrest is found to be illegal, wholly unjustified or an instance of abuse of power.)
It appears that the National Commission for Reviewing the Working of the Constitution has issued a Consultation Paper on the subject of State liability in tor.- which is, of course, only a minor aspect of the problem. Even so, it may be hoped that some concrete suggestions would emanate from that Commission to redress and rectify the unhappy and wholly inequitable position now obtaining by virtue of Article 300 of the Constitution and would persuade the Parliament/State Legislatures to enact a law clarifying the legal position in this behalf as indeed contemplated by Article 300 itself.