by K Rajasekharan
Advocate,
Thrissur Bar
The issue that this article discusses is whether registration
of a First Information Report (FIR) against an accused needs to be followed by
his/her imminent arrest.
Nowadays, when an allegation of committing a cognizable
offence comes up against a person - particularly a celebrity - there will be a
public outcry for his/her arrest even though such an arrest is unwarranted in
accordance with criminal jurisprudence or its practice. Unnecessary arrests and unjustified pre-trial
detention pose grave threat to many citizens accused of committing cognizable
criminal offences.
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 both are
entirely different concepts operating under different parameters and if a
police officer misuses his power of arrest, he can be tried and punished under Section 166 of the Indian
Penal Code. Therefore a police officer should apply his mind
independently while taking a decision on arresting anyone. He should ignore the vociferous public outcry
for arrest that goes just against what is stated in the statue book. Arrest and
detention of the accused in custody is treated by people in general as a
procedural punishment for the accused.
Indian laws on arrest, pre-trial detention and charge
framing are in shambles or irreparable disorder. Those laws are of colonial origin.
The Law Commission of India in its 177th
report, by citing the statistics provided in the Third Report
of the National Police Commission, points out that sixty percent of the arrests
were unnecessary or unjustified. A major section of jail inmates were those
unnecessarily arrested. Due to procedural tangles some of them are forced to
languish in jail for long even without knowing the charge on which they were
arrested - as charge framing by the court takes place pretty long after the
arrest.
In a cognizable offence, the laws provide the police
officer enough legal authority to arrest an accused and put him in lock up. Lodging
an FIR - based on a credible information or reasonable suspicion founded on some
definite fact in regard to the commission of a cognisable offence - is a must
for arrest. But arrest is a discretionary power for the police officer to
excericse. That needs to be exercised only when sufficient justification exists.
However when an FIR is filed, the police usually spring up into action and arrest
the accused unless the arrest is put on hold by political influence or by money
in an unholy manner. The power to arrest is a lucrative source of money for the
police. An arrest cannot be done without registering an FIR. In fact, a mere allegation must end up in
registering an FIR against the accused but not in his/her arrest. A police
officer is not bound to arrest an accused 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. That means an accused has committed
a cognizable offence is not a reasonable ground for making an arrest. 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”.
Arrest is in fact an encroachment on the freedom and liberty
of the person so arrested. It infringes his fundamental right granted by the
constitution which can be restricted only in a limited manner. Therefore the
power of arrest is to be exercised only with great caution and suspicion but
not on vague surmises. Investigation can proceed without arrest if an FIR is
registered. It is a problem that the power to arrest is with the Police and the
power to frame the charge rests with the magistrate at a later stage, unlike as
in the UK where both are done by the police itself. Arrest is the formal taking
of a person to lock up. It is being done 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. In arrest, the police officer is not expected to act
in a mechanical manner. Some tangible proof must exist about the commission of
an offence, when a police officer initiates arrest of an accused. Due diligence
must be exercised by the police officer when putting an accused under arrest.
In the UK the Police are to pay damages if their exercise of power in regard to
the arrest is wrong whereas in India the CrPC encourages wrongful or false
arrests. The police can remand an accused in custody for 90 days without filing
a charge report and the court can keep him in jail almost indefinitely. In
spite of all this there is no restraint on police in India in regard to arrest.
The statutory provision that authorizes a police officer
to arrest an accused is Section 41 of the CrPC.
The term “may arrest “used in the section denotes that the power of arrest is
discretionary. Arrest of a person can cause incalculable harm to his reputation
which he has built up over the years. Therefore, except in heinous offences and
in unnecessary circumstances, arrest must as far as be avoided.
Unduly long pre-trial detention occurs in many criminal
cases. The accused have to languish in jail for long. Some of them will be
found not guilty and set free at the end. Magistrates have a due role in such a
state of affairs. An accused, who has been arrested by Police, can be detained
in prison beyond 24 hours only with the authorisation of the court. Therefore the Supreme Court in Arnesh Kumar V State of
Bihar & another cautions the magistrates that the power to
authorize detention is a solemn function and needs to be exercised with great care
and caution. But many of the subordinate court verdicts show that the courts do
not exercise the function with the seriousness it deserves. In many cases the
detention is authorised by the magistrate in a routine, casual and cavalier
manner.
In short, when any piece of information disclosing the
commission of a cognizable offence reaches a police officer no discretion is left
to him except registering an FIR. But in the case of exercising the power of
arrest, the officer must apply his mind and decide whether the person accused
need to be arrested or not. Even if an FIR is lodged arrest is not a
prerequisite. In Lalithakumari
case,
the Supreme Court unequivocally declared the parameters of registering an FIR removing
every trace of doubt. Similarly a verdict from the Supreme Court for re-examining
the laws relating to arrest is urgently needed. Unnecessary arrests and
pre-trial detention in many a case go against the constitution and the rule of
law itself.
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NB:- The article originally appears on Lawyers Club India site. Click here to view it.
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