- Police officers are frequently accused of violating the amended laws and safeguards against arrest, which frequently results in the incarceration of people from marginalized groups.
- In a society that prioritizes civil rights, the ability to arrest someone and therefore deprive him of his liberty is a very serious problem. The Constitution makers were aware of how this power could be used as a tool of state repression, and therefore, included certain provisions as constitutional safeguards against this power.
- The Supreme Court's judges passed decisions that widened the scope of the right under Article 21 of the Constitution. This enlargement of rights was maintained in rulings that specifically addressed the law of arrest and the establishing principles that would serve as protection measures.
The concept of arrest in the case of State of Punjab vs. Ajaib Singh (1953) has been defined as “Arrest means a physical restraint put on a person as a result of an allegation of accusation that he has committed a crime or an offense of quasi-criminal nature.”
In the case of Rakesh Kumar vs. Vijayanta Arya (DCP) and Ors.vide order dated 07.12.2021, the Hon'ble Delhi High Court ordered a police officer to one day of simple imprisonment and a cost of Rs.15,000 to the petitioner for arresting him in breach of the directions set in the landmark case Arnesh Kumar vs. State of Bihar (2014) which would be discussed subsequently.
Before referring to the landmark cases under arrest and the guidelines provided by the Supreme Court, the brief facts of the recent case were that asub-inspector Kuldip of the Maurya Enclave police station in Delhi had arrested a person named Rakesh Kumar on August 23, 2020, on charges of criminal breach of trust. Later on, Kumar had been released on bail after spending 11 days in prison but he moved to the Delhi High Court alleging that his arrest violated the rules laid down by the Supreme Court in the earlier cases. The Delhi High Court in the recent case held Sub-Inspector Kuldip guilty of contempt and was observed by Justice Waziri that “highhandedness of the police officer was evident” in the present case. Further, the order stated that “It is not the petitioner only who has suffered the humiliation and the indignity of being arrested, the ordeal would have affected the reputation of his family i.e., his children, wife, and parents.”
The right to life and personal liberty is a human being's most desired and sacred right. The Supreme Court of India through its various judgments has widened the scope of this right to bring a plethora of rights under the shed of Article 21. It is important to note here that, right to life includes the right to live a life of dignity and not a mere animal existence. In this article, an in-depth understanding of the concept of arrest would be made and the stance of the Hon’ble Supreme Court of India on the issue of routine arrests and the safeguards provided against such arrests would be discussed elaborately.
The procedure for arrest is outlined in Chapter V of the Code of Criminal Procedure, which covers Sections 41-60A of the present code. The law relating to arrest has been present in all prior codes, although it has only recently received serious consideration as the arbitrary arrests and detentions, reports of torture, and death in custody, brought police brutality to the public's attention. Hence, the legislature changed the Code, primarily dealing with the legislation on arrest, in response to many major judicial decisions and recommendations by specially established committees.
JUDICIAL PRONOUNCEMENTS ON ARREST
The Supreme Court, perhaps, has played the most significant role when it comes to reforming the power of arrest as there are many cases where the Supreme Court has dealt with the power of arrest and detention concerningthe accountability of police personnel.
The first of the cases to deal directly with arrest is the case of Joginder Kumar v. State of Uttar Pradesh in the year 1994 where the Hon’ble Supreme Court mentioned the need for maintaining a balance between law and order and individual liberties, and curtailment of those liberties by arrest only where it was necessary to do so. The Supreme Court in this case had noted the seriousness of the act of making an arrest and how it could harm an individual psychologically, and his reputation in society and had passed certain guidelines on the intimation of the arrest and the duty of the magistrate.
In the caseof D.K. Basu v. State of West Bengal (1996) was the next key judgment on the law of arrest. This case arose from a letter to the Supreme Court that was regarded as a writ petition, with the court issuing letters to various state governments citing police abuse of authority and detention brutality, including torture and death. While this petition was about custodial violence, the ruling spends a lot of time talking about the law on arrest, which sets the stage for further human rights violations.The guidelines passed in this case included, among other things, the requirement that police officers wear nametags, the preparation of arrest memos, the right of the arrested to have someone informed about the arrest, the requirement that all aspects of the arrest be entered in a diary, the recording of any injuries at the time of arrest in the inspection memo, medical examination of the arrestee every 48 hours during his detention, and the establishment of a police control room in all districts. Following this judgment, numerous state police departments published recommendations to be observed in the police stations. However, it was felt that a revision in the statute itself was necessary, which explicitly stated the law and therefore made criminal procedure uniform across the country.
When following the evolution of the legislation on arrest, it becomes clear that judicial decisions and changes focused on two specific areas firstly the power to arrest; and secondly, the arrest process, to assure greater individual liberty.
Regarding the case of Arnesh Kumar v. State of Bihar (2014) cited in the decision of the Delhi High Court, the Supreme Court had observed that accused persons should be arrested only in exceptional cases if their alleged crimes are punishable with less than seven years of imprisonment and instead, in such cases, the accused should be served a notice under Section 41A of the Criminal Procedure Code asking them to appear before the police.
Apart from the above landmark judgments, the other case that is important to be referred to is the case of Lalita Kumari v. Govt (2013) before the Constitution Bench of Hon’ble Supreme Court, where guidelines to register FIR was provided. The Hon’ble court in the given case held that the registration of the First Information Report is compulsory under Section 154 of the Code of Criminal Procedure, provided that the information discloses a cognizable offense then no preliminary inquiry is permissible in such a situation. If the received information does not reveal a cognizable offense but indicates an immediate need for an inquiry, an introductory inquiry may only be conducted to determine whether or not a cognizable offense is disclosed.
Lastly, in the case of M.C. Abraham v. the State of Maharashtra (2002), it was again observedby the Supreme Court of India that because the power to arrest is discretionary, a police officer is not necessarily obligated to arrest an accused, even if the allegation against him is that he committed a cognizable crime. The court also stated that because arrest infringes on a person's liberty and harms his standing and reputation, the authority to arrest must be used with prudence and caution.
To conclude, it is clear that the decisions by the Hon’ble Supreme court in the case of Lalita Kumari v. Union of India and Arnesh Kumar v. Union of India have been regarded as landmark cases that emphasize the significance of following the system in its entirety to ensure that the law's safeguards remain effective. Further, it was also seen that the decision in the case of Arnesh Kumar made police officers liable to departmental action and contempt of court for not recording reasons for arrest when produced in front of the Magistrate.
Hence, the ability to make arrests should be used with extreme prudence. As a result, the law that gives this power to the government should be carefully constructed to exclude any potential for abuse of power.Because, it is often very common for the police to make unjustified arrests and intentionally punish innocent people as the general understanding is that the police have the power to arrest but that does not imply, they must in any given situation or abuse the power when not required. As, the abuse of power by the police results in irreversible consequences for a person's life, liberty, reputation, and self-esteem which leaves a huge impact.
Therefore, the Supreme Court has made it clear that no arrest can be undertaken regularly. A routine arrest breaches citizens' fundamental rights and, as a result, goes against the core structure of our constitution. Aside from the different Supreme Court decisions, the Code of Criminal Procedure (Amendment) Act of 2008 added appropriate protections, for instance, the insertion of Section 41A in the code to guarantee that the authority to arrest is used lawfully and cautiously. The only part that is lacking is strict implementation and it is critical that the police are made aware of the limits to which they can use their arrest power, and that any arbitrary use of that power would be confronted with harsh repercussions.