Arrest need not be made routinely
An arrest need not be made merely because it is lawful for the police to make an arrest of an accused, the Supreme Court (SC) reaffirmed the dictum in Siddharth v State of Uttar Pradesh (LL 2021 SC 391).
Trial court insisted for arrest u/s 170 CrPC
In this case, the appellant along with 83 other private persons, was roped in a FIR seven years ago. He joined the investigation and the chargesheet was ready to be filed. But an arrest memo was issued. So, he filed anticipatory bail application before the High Court. It was dismissed and therefore he approached the Apex Court in appeal.
In this case the trial court has taken a view that unless the person is taken into custody the chargesheet will not be taken on record in view of Section 170 of the Code of Criminal Procedure (CrPC).
What Section 170(1) CrPC states
The Section 170(1) states, “If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed”.
But the SC, in this case, says that the Section 170 of the CrPC. does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the chargesheet.
The word “custody” appearing in Section 170 (1) of the CrPC does not contemplate either police custody or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the chargesheet.
Essential occasions to make arrest
The SC pointed out that personal liberty is a crucial element of our constitutional mandate. The occasion to arrest an accused during investigation arises,
- when custodial investigation becomes necessary or
- it is a heinous crime or
- where there is a possibility of influencing the witnesses or
- accused may abscond.
An arrest need not be made merely because an arrest can be made as it is lawful.
The court made a distinction between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person.
Accused cooperated with investigation
The SC, in this case, failed to appreciate why there was compulsion on the part of the investigation officer to arrest the accused who cooperated with the investigation throughout.
The court pointed out that contrary to the observations in Joginder Kumar’s case how a police officer has to deal with a scenario of arrest, the trial court was insisting on the arrest of an accused as a pre-requisite to take the chargesheet on record in view of the provisions of Section 170 of the CrPC.
The SC considers such a course is misplaced and contrary to the intent of Section 170 of the CrPC.
No arrest as it is lawful or on mere suspicion
In Joginder Kumar v. State of UP, & Ors (1994 AIR 1349) a lawyer, who was kept under police custody, had approached the Apex court by filing a writ petition.
In the case, the SC pointed out that no arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person.
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 for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest.
Denying a person of his liberty is a serious matter. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified.
Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.
In Arnesh Kumar case the SC reiterated its stand
In Arnesh Kumar V State of Bihar & another, the Supreme Court said, “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”.
SC guidelines as a substitute of law to be made
In Joginder Kumar v. State of UP, & Ors, the SC issued the following guidelines:
- An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
- The police officer shall inform the arrested person when he is brought to the police station of this right.
- An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly. It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.
The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various police manuals.
These requirements are not exhaustive. The Directors General of Police of all the States in India shall issue necessary instructions requiring due observance of these requirements.
In addition, departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest.
Police Commission Report on arrest
The Third Report of the National Police Commission also suggested that an arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:
- The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims.
- The accused is likely to abscond and evade the processes of law.
- The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.
- The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
Registration of FIR need not lead to arrest
The five-member constitutional bench of the Supreme Court in Lalithkumari case categorically stated that the arrest of a person is not directly linked to the registration of FIR.
The verdict states that both – registration of FIR and arrest – are entirely different concepts operating under different parameters.
A police officer is not bound to arrest an accused in every case even if he has committed a cognizable offence and an FIR is lodged. The Criminal Procedure Code (CrPC) does not per se provide the police officer an unqualified authority to arrest an accused in every time an FIR is registered. That means an accused has committed a cognizable offence alone is not a reasonable ground for making an arrest but there must be some compelling reasons too.
When arrest becomes necessary
Arrest is the formal taking of a person to lock up. The statutory provision that authorizes a police officer to arrest an accused is Section 41 of the CrPC.
The purpose of arrest is to prevent the accused from tampering evidence, induce threat to the witnesses and keeping away from court proceedings when required. These things can be solved by enforcing some conditions on the accused.
The term “may arrest “used in the Section denotes that the power of arrest is discretionary. But the police usually arrest anyone accused of a cognizable case when it appears lawful for them to arrest. That practice must change.
In conclusion
The Police should arrest the accused only when it is essential to do so. Arrest is an act that goes against some of the much valued fundamental rights of the person.
Further reading
- Siddharth v State of Uttar Pradesh (LL 2021 SC 391/ 2021 (5) KHC 353 (SC))
