Arrest of an Accused: Not a must in every Cognisable Case

The issue that this article discusses is whether the 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.


Published in Criminal Law
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