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.
There are significant other requirements that need to be fulfilled for an arrest. These are:
1. 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.2. The accused is likely to abscond and evade the processes of law.
3. The accused is given to violent behavior and is likely to commit further offences unless his movements are brought under restraint.
4. The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines.
In yet another judgment dated 22.8.2004 (Criminal Misc.Writ Petition No.4861 of 2000, Ajeet Singh alias Muraha Vs. State of U.P. and others), Supreme Court Justice Markandeya Katju, while serving as a judge on the Allahabad High Court, had the following to say:
(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officer not being below such rank as the State Government may, by general or special order, prescribe in this behalf to proceed, to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender."
The above provision clearly shows that it is not necessary to arrest in every case wherever a FIR of cognizable offence has been registered. No doubt investigation has to be made in every case where a cognizable offence is disclosed but in our opinion investigation does not necessarily include arrest. Often the investigation can be done without arresting a person, and this legal position becomes clear from section 157(1) of the Cr.P.C. because that provision states that the Police Officer has to investigate the case, and, if necessary, to take measures for the arrest of the offender. The use of words ' if necessary' clearly indicates that the Police Officer does not have to arrest in every case wherever FIR has been lodged and this position has been clarified in Joginder Kumar's case (supra).
In our country unfortunately whenever an FIR of a cognizable offence is lodged the police immediately goes to arrest the accused. This practice in our opinion is illegal as it is against the decision of the Supreme Court in Joginder Kumar's case, and it is also in violation of Article 21 of the Constitution as well as section 157 (1) Cr.P.C. No doubt section 157(1) Cr.P.C. gives a police officer discretion to arrest or not, but this discretion cannot be exercised arbitrarily and it must be exercised in accordance with the principles laid down in Joginder Kumar's case (supra).”
The police will say that 498A is a cognizable offence. By cognizable, it means they have to REGISTER an FIR and INVESTIGATE, not arrest the accused immediately. Think about it. If a king has been stripped of his power to arrest without cause 800 years ago, how can the police in a democracy claim to have that power?
Keeping these judgments in mind, I am interested in seeing how a grandmother or a grandfather, young nieces and nephews, married and unmarried sisters and parents, without a prior criminal record, can fall into any of the categories described by Justice M.N. Venkatachalliah.
To summarize, the police have discretionary powers to arrest, but they need to justify the arrest and Supreme Court and High Courts judgments have established that some investigation must be done before an arrest is made and even then, only if necessary.
The Late Justice AN Mulla (A former Judge of the Allahabad HC and author of the Mulla Committee on prison reform) said:
“I say it with all sense of responsibility that there is not a single lawless group in the whole country whose record of crime is anywhere near the record of that organized unit which is known as the Indian Police Force.”
Keeping the words of Justice AN Mulla in mind, and knowing that the police have been granted wide discretionary powers to arrest, be prepared for an arrest by the police.
If they do arrest you, they need to respect your rights and treat you professionally and with courtesy. Later on, you may seek redress in the form of contempt of court, writ mandamus, Habeas Corpus, compensation for illegal detention, etc.
Read on to understand what other safeguards the hon’ble courts of the country have set in place to protect you from the excesses of the police.