(iv) A critical and detailed observation of the Apex Court in respect of unabated practice of “mechanical arrests” in a very recent case deserves to be reproduced. [JT 2014 (7) SC 527]
Para
7 Arrest brings humiliation, curtails
freedom and cast scars forever. Law makers know it so also the police. There is
a battle between the law makers and the police and it seems that police has not
learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not
come out of its colonial image despite six decades of independence. It is
largely considered as a tool of harassment, oppression and surely not
considered a friend of public. The need for caution in exercising the drastic
power of arrest has been emphasized time and again by Courts but has not
yielded desired result. Power to arrest greatly contributes to its arrogance so
also the failure of the Magistracy to check it. Not only this, the power of
arrest is one of the lucrative sources of police corruption. The attitude to
arrest first and then proceed with the rest is despicable. It has become a
handy tool to the police officers who lack sensitivity or act with oblique
motive.
Para
8 Law Commissions, Police Commissions and
this Court in a large number of judgments emphasized the need to maintain a
balance between individual liberty and societal order while exercising the
power of arrest. Police officers make arrest as they believe that they possess
the power to do so. As the arrest curtails freedom, brings humiliation and
casts scars forever, we feel differently.
We believe
that no arrest should be made only because the offence is non-bailable and
cognizable and therefore, lawful for the police officers to do so. The
existence of the power to arrest is one thing, the justification for the
exercise of it is quite another. Apart from power to arrest, the police
officers must be able to justify the reasons thereof. No arrest can be made in
a routine manner on a mere allegation of commission of an offence made against
a person. It would be prudent and wise for a police officer that no arrest is
made without a reasonable satisfaction reached after some investigation as to
the genuineness of the allegation.
Despite
this legal position, the Legislature did not find any improvement. Numbers of
arrest have not decreased. Ultimately, the Parliament had to intervene and on
the recommendation of the 177th Report of the Law Commission submitted in the
year 2001, Section 41 of the Code of Criminal Procedure (for short Cr.PC), in
the present form came to be enacted. It is interesting to note that such a
recommendation was made by the Law Commission in its 152nd and 154th Report
submitted as back in the year 1994. The value of the proportionality permeates
the amendment relating to arrest. As the offence with which we are concerned in
the present appeal, provides for a maximum punishment of imprisonment which may
extend to seven years and fine, Section 41(1)(b), Cr.PC which is relevant for
the purpose reads as follows:
"41. When police may arrest without warrant.-(1) Any police
officer may without an order from a Magistrate and without a warrant, arrest
any person
(a)x x x x x x
(b)against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence punishable with imprisonment for a term which
may be less than seven years or which may extend to seven years whether with or
without fine, if the following conditions are satisfied, namely :-
(i) x x x x x
(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
(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)
as unless such person
is arrested, his presence in the Court whenever required cannot be ensured,
and the police officer shall record while making such arrest, his
reasons in writing:
Provided that a police officer shall, in all cases where the
arrest of a person is not required under the provisions of this sub-section,
record the reasons in writing for not making the arrest.
X x x x x x
From a plain reading of the aforesaid provision, it is evident
that a person accused of offence punishable with imprisonment for a term which
may be less than seven years or which may extend to seven years with or without
fine, cannot be arrested by the police officer only on its satisfaction that
such person had committed the offence punishable as aforesaid.
Police officer before arrest, in such cases has to be further
satisfied that such arrest is necessary to prevent such person from committing
any further offence; or for proper investigation of the case; or to prevent the
accused from causing the evidence of the offence to disappear; or tampering
with such evidence in any manner; or to prevent such person from making any
inducement, threat or promise to a witness so as to dissuade him from
disclosing such facts to the Court or the police officer; or unless such
accused person is arrested, his presence in the court whenever required cannot
be ensured. These are the conclusions, which one may reach based on facts.
Law mandates the police officer to state the facts and record the
reasons in writing which led him to come to a conclusion covered by any of the
provisions aforesaid, while making such arrest. Law further requires the police
officers to record the reasons in writing for not making the arrest.
In pith and core, the police office before arrest must put a
question to himself, why arrest? Is it really required? What purpose it will
serve? What object it will achieve? It is only after these questions are
addressed and one or the other conditions as enumerated above is satisfied, the
power of arrest needs to be exercised.
In fine, before arrest first the police officers should have
reason to believe on the basis of information and material that the accused has
committed the offence. Apart from this, the police officer has to be satisfied
further that the arrest is necessary for one or the more purposes envisaged by
sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC.
Para
9 An accused arrested without warrant by
the police has the constitutional right under Article 22(2) of the Constitution
of India and Section 57, Cr.PC to be produced before the Magistrate without
unnecessary delay and in no circumstances beyond 24 hours excluding the time
necessary for the journey.
During the
course of investigation of a case, an accused can be kept in detention beyond a
period of 24 hours only when it is authorized by the Magistrate in exercise of
power under Section 167 Cr.PC.
The power
to authorize detention is a very solemn function. It affects the liberty and
freedom of citizens and needs to be exercised with great care and caution. Our
experience tells us that it is not exercised with the seriousness it deserves.
In many of the cases, detention is authorized in a routine, casual and cavalier
manner.
Before a
Magistrate authorizes detention under Section 167, Cr.PC, he has to be first
satisfied that the arrest made is legal and in accordance with law and all the
constitutional rights of the person arrested is satisfied.
If the
arrest effected by the police officer does not satisfy the requirements of
Section 41 of the Code, Magistrate is duty bound not to authorize his further
detention and release the accused.
In other
words, when an accused is produced before the Magistrate, the police officer
effecting the arrest is required to furnish to the Magistrate, the facts,
reasons and its conclusions for arrest and the Magistrate in turn is to be
satisfied that condition precedent for arrest under Section 41 Cr.PC has been
satisfied and it is only thereafter that he will authorize the detention of an
accused.
The
Magistrate before authorizing detention will record its own satisfaction, may
be in brief but the said satisfaction must reflect from its order. It shall
never be based upon the ipse dixit of the police officer, for example, in case
the police officer considers the arrest necessary to prevent such person from
committing any further offence or for proper investigation of the case or for
preventing an accused from tampering with evidence or making inducement etc.,
the police officer shall furnish to the Magistrate the facts, the reasons and
materials on the basis of which the police officer had reached its conclusion.
Those shall
be perused by the Magistrate while authorizing the detention and only after
recording its satisfaction in writing that the Magistrate will authorize the
detention of the accused.
In fine,
when a suspect is arrested and produced before a Magistrate for authorizing
detention, the Magistrate has to address the question whether specific reasons
have been recorded for arrest and if so, prima facie those reasons are relevant
and secondly a reasonable conclusion could at all be reached by the police
officer that one or the other conditions stated above are attracted. To this
limited extent the Magistrate will make judicial scrutiny.
Para
10 Another provision i.e. Section 41A Cr.PC
aimed to avoid unnecessary arrest or threat of arrest looming large on accused
requires to be vitalised. Section 41A as inserted by Section 6 of the Code of
Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant in
the context reads as follows:
"41A. Notice of appearance before police officer.-
(1) The police officer shall, in all cases where the arrest of a
person is not required under the provisions of sub-section (1) of Section 41,
issue a notice directing the person against whom a reasonable complaint has
been made, or credible information has been received, or a reasonable suspicion
exists that he has committed a cognizable offence, to appear before him or at
such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the
duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the
notice, he shall not be arrested in respect of the offence referred to in the
notice unless, for reasons to be recorded, the police officer is of the opinion
that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms
of the notice or is unwilling to identify himself, the police officer may,
subject to such orders as may have been passed by a competent Court in this
behalf, arrest him for the offence mentioned in the notice."
Para
11 Aforesaid provision makes it clear that
in all cases where the arrest of a person is not required under Section 41(1),
Cr.PC, the police officer is required to issue notice directing the accused to
appear before him at a specified place and time. Law obliges such an accused to
appear before the police officer and it further mandates that if such an
accused complies with the terms of notice he shall not be arrested, unless for
reasons to be recorded, the police office is of the opinion that the arrest is
necessary. At this stage also, the condition precedent for arrest as envisaged
under Section 41 Cr.PC has to be complied and shall be subject to the same
scrutiny by the Magistrate as aforesaid.
Para
12 We are of the opinion that if the provisions
of Section 41, Cr.PC which authorizes the police officer to arrest an accused
without an order from a Magistrate and without a warrant, are scrupulously
enforced, the wrong committed by the police officers intentionally or
unwittingly would be reversed and the number of cases which come to the Court
for grant of anticipatory bail will substantially reduce. We would like to
emphasize that the practice of mechanically reproducing in the case diary all
or most of the reasons contained in Section 41 Cr.PC for effecting arrest be
discouraged and discontinued.
Our
endeavour in this judgment is to ensure that police officers do not arrest
accused unnecessarily and Magistrate do not authorize detention casually and
mechanically. In order to ensure what we have observed above, we give the
following direction:
1.
All the State
Governments to instruct its police officers not to automatically arrest when a
case under Section 498-A of the IPC is registered but to satisfy themselves
about the necessity for arrest under the parameters laid down above flowing
from Section 41, Cr.PC;
2.
All police officers be
provided with a check list containing specified sub- clauses under Section
41(1)(b)(ii);
3.
The police officer
shall forward the check list duly filed and furnish the reasons and materials
which necessitated the arrest, while forwarding/producing the accused before
the Magistrate for further detention;
4.
The Magistrate while
authorizing detention of the accused shall peruse the report furnished by the
police officer in terms aforesaid and only after recording its satisfaction,
the Magistrate will authorize detention;
5.
The decision not to
arrest an accused, be forwarded to the Magistrate within two weeks from the
date of the institution of the case with a copy to the Magistrate which may be
extended by the Superintendent of police of the district for the reasons to be
recorded in writing;
6.
Notice of appearance
in terms of Section 41A of Cr.PC be served on the accused within two weeks from
the date of institution of the case, which may be extended by the
Superintendent of Police of the District for the reasons to be recorded in
writing;
7.
Failure to comply with
the directions aforesaid shall apart from rendering the police officers
concerned liable for departmental action, they shall also be liable to be
punished for contempt of court to be instituted before High Court having
territorial jurisdiction.
8.
Authorizing detention
without recording reasons as aforesaid by the judicial Magistrate concerned
shall be liable for departmental action by the appropriate High Court.
We hasten to add that the directions aforesaid shall not only
apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry
Prohibition Act, the case in hand, but also such cases where offence is
punishable with imprisonment for a term which may be less than seven years or
which may extend to seven years; whether with or without fine.
Sandeep
Jalan
Advocate
Law
Referencer: https://www.vakeelkanumber.com/
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