THE POWER OF ARREST OF THE POLICE: THE USES AND MISUSES

This article was written by Devansh Sharma, a student of Rajiv Gandhi National University of Law

“No arrest can be made because it is lawful for the police officer to do so. The existence of the power of arrest is one thing and the justification for the exercise of such power is quite another.”[i]

Physical liberty is one of the most cherished freedoms guaranteed to an individual. Consequentially, denial of the right to liberty is feared by individuals. It is for this reason that the power to arrest is misused by the police for monetary gains and other benefits.

According to the third report of the National Police Commission[ii], states that 60% of the total arrests were unnecessary and more than 42% of the total funds allotted to jails were spent on the prisoners who should not have been arrested in the first place.

Art. 21 of the Constitution lays down that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law Throwing light on the same, SC in Maneka Gandhi v. Union of India[iii], held that such procedure should be ‘just fair and reasonable.’ It can, therefore, be reasonably inferred that the procedural powers should not be arbitrarily and fancifully exercised.

Legal provisions pertaining to Arrest

The laws relating to arrest have been mentioned in Chapter V of CrPC, 1973. The S. 41 of the Code lays down the circumstances under which a person can be arrested without an arrest warrant. A proclaimed offender, a person suspected to deserter by from armed forces and a person attempting to escape the police custody would fall under this provision. S. 41 of CrPC therefore specifies the conditions under which an individual’s liberty can be curtailed.

1. 42 of CrPC authorises the police to arrest a person who refuses to divulge the details of his name or his residence. S. 151 further elaborates on the power of preventive detention invested in the police. Besides these powers, the code confers upon the police the power to arrest in cases of both bailable and non-bailable cognizable offences. These powers are also extended to preventive arrests.

It is the excessive powers being rested with the police that results in abuse of powers and paving the way for police corruption. Further, there is no in-house department to keep a check on arrests and misconduct on the part of police. This results in the violation of fundamental rights guaranteed to the individuals under the constitution.

Safeguards against arbitrary arrest

There are several safeguards available under the constitution in order to ensure that the fundamental rights of the individuals are protected. Art. 22(1) lays down that the person arrested shall be made aware about the reasons of the arrest as soon as possible. The person is also guaranteed the right to consult the legal practitioner of his choice. Art. 22(2) states that the person arrested should be produced before magistrate within 24 hours of the arrest. These provisions keep a check upon the arbitrary exercise of power of arrest to a great extent.

Abuse of the Power of Arrest

Despite of constitutional safeguards, the power of arrest is more than often misused by the police. This opportunity of misuse of power is a result of generality and vagueness of the language used in the Code. For e.g. Art. 41 of CrPC empowers the police to arrest a person without a warrant. The provision uses the word ‘may’, conferring the discretionary powers on the police. Similarly, words like ‘reasonable’, ‘credible’, ‘reasonably’ and ‘if it appears to such officer’ in Section 41, 42 and 151have quite subjective usages.

The SC, in the case of V. Shantha v State of Telangana and Ors[iv] held that in order to prevent misuse of power, all the preventive arrest laws should carry scope for judicial review to restrict its use. If a person is arrested, then proper evidence should be produced justifying the arrest.

Judicial Precedents and Law Commission Reports

The SC has taken the initiative in order to curb the arbitrary use of power to arrest by imposing restrictions on the power and imposing safeguards. Such restrictions aim at regulating the exercise of power and ensures the discharge of the executory function by police.

In the leading case of Nandini Satpathy v. PL Dani[v], the SC discussed that there is a need to strike a balance between protecting the interests of an individual and the interest of society at large. It is generally observed, both nationally and internationally that the rights of the accused are given higher priority. In pursuance of the same rationale, the SC in Joginder Kumar v State of U.P.[vi] laid down the following essentials in order to protect the fundamental rights of the arrested person. It is the duty of the magistrate before whom the accused is produced, to ensure that the arrest complies with these guidelines.

1. Firstly, the arrested has the right to have a close friend or relative be informed that he/she is arrested and the location of such detention.
2. Secondly, it is the duty of the police officer to inform the arrested person of the above mentioned right.
3. Thirdly, an entry should be made in the Diary noting down the person who was informed of the arrest.

In interest of the illegal arrests, custodial deaths and in the absence of any legislation regulating conduct of the police, the SC in D.K. Basu v. State of West Bengal[vii]further laid down eleven guidelines. These guidelines were to be complied mandatorily in pursuance to Art. 141 and 142 of the constitution. These guidelines can be summarised as under:

• the right of arrested person to contact his lawyer
• right to medically examined every 48 hours
• right to get his/her relative informed about the arrest
• to be produced in front of Magistrate within 24 hours, memo to be prepared in front of a witness
• arrest to be recorded in a diary
• the memo and the diary to be shown to the magistrate
• information about the arrest to be communicated to all districts
• the arresting officer is required to have identification and the arrested person to be informed of his right to have someone notified.

The CrPC Amendment Act, 2008

In 2008, several amendments were made to CrPC especially with relation to arrest. The guidelines specified in D.K. Basu v. State of West Bengal[viii]were incorporated in the code in their entirety. S. 41A provides that the police, instead of arresting can issue the notice to the accused. S. 41B provides for the duties and liabilities of the officer exercising the power to arrest. Further, certain rules were incorporated regulating the arrest of women.

Recommendations

Judicial intervention has, to a great extent, reduced the arbitrariness in the exercise of power to arrest by providing a safeguard against. This has been achieved by providing procedural and constitutional safeguards. The amendments to CrPC has further laid down rules for protection of arrested persons. The power of police has been widely restricted, ensuring the protection of fundamental rights.

There are however certain recommendations that would remove the arbitrariness to a greater extent. There are:

1. No arrest should be made entirely based on allegations. The arrest should only be made after ensuring that the complaint is genuine.
2. The police should consider whether or not there is a need for arrest. Only the grave offences attract arrest. Arrest can also be made where the person is likely to abscond, and his presence is necessary in the court. Further, if the person is likely to tamper with the witness, there is a need for arrest.

[i]Joginder Kumar v. State of U.P., A.I.R. 1994 S.C. 1349.

[ii] Available at http://lawcommissionofindia.nic.in/reports/177rptp2.pdf, Accessed on 26/12/2019.

[iii]Maneka Gandhi v. Union of India, 1978 AIR 597.

[iv]Shantha v State of Telangana and Ors (2017), SC 2625.

[v] Nandini Satpathy v. PL Dani A.I.R. 1978 S.C. 1025.

[vi] Supra

[vii]D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.

[viii] Ibid