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Law & Rights Before Arrest & After Arrest in India

India
February 13 2020

Life and liberty is a sacred freedom of our sanctified Constitution under Article 21, but it has been hampered by the
exploitation, done by the police, of the already vast powers given to them by the Code of Criminal Procedure
(Cr.P.C) enacted by the Parliament in 1973. A widely discussed and contentious issue has been the constant abuse of
personal liberty and constitutional rights by the government through their own retained rights for the apparent
‘protection of the public’. Media and court records display instances of such abuse by the police force; the same
force that has been tasked as the keepers of our peace and protectors against the evil.
It was very aptly recorded in the case of R.P. Kapur v. State of Punjab that it is not strengthening the prosecution
case that a police officer must do but rather their objective in an investigation should be based on unravelling the
truth.i These corrupt practices are the result of a very natural but unhealthy human emotion of greed. Officers might
be chasing extorted money, service rewards, good looking arrest statistics or personal vendetta which has created a
reputation that even the honest individuals of the Force must bear on their shoulders which results in a decreasing
level of trust from the public.
Cr.P.C contains the arrest power provided to the police officers such as an arrest without a warrant (section 41),
arresting someone who fails to identify themselves and their place of residence, search of a premises where the
arrested entered or is believed by the officers to have entered, seizing personal property such weapons and so on.
Cr.P.C is also flexible in terms of the discretion to arrest a person for several types of offences such as bailable, non-
bailable, cognizable, and noncognizable offences. A problem that can be recognized through a careful perusal of
Cr.P.C is the existence of vague and very general language when it comes to conditions and pre-requisites for arrests.
Words like reasonable and credible suspicion or investigation prior to an arrest is very subjective in nature and can,
in reality, provide the police officer vast discretion. 
A consultation paper by the Law Commission in 2001 stated that almost 60% of the arrests made are unnecessary
and uncalled for and more than 40% of the jail expenditure in the country is due to such arrests. The Hon’ble
Supreme Court in the case of Joginder Kumar v. State of U.P observed: “The National Police Commission in its
Third Report referring to the quality of arrests by the police in India mentioned power of arrest as one of the chief
sources of corruption in the police.ii Such practices led to the amendment of Cr.P.C in 2009 which came into effect in
2010 and resulted in a drastic reduction in the powers of the Police when it comes to offences which carry a sentence
of less than 7 years. Article 41 (A-C) was put in charge of protecting this amendment and changes made by adding
several prerequisites and strict formalities to the process when it comes to such offences. These offences might
include assault, kidnapping, cheating, forgery accusations and so on. 
In the case of M.C. Abraham v. the State of Maharashtra, the honorable Supreme Court of Inda reiterated that
arrests must be made very cautiously and by following the correct procedure. It is not mandatory for the police to
make such arrests in the above-mentioned circumstances although exceptions can be made if the police are able to
justify that the accused is likely to abscond, or tamper with witness and/or evidence. iii
Arnesh Kumar v. the State of Bihar is a landmark judgment, which was pronounced by the Apex Court as it
imposed further checks and balances on the powers of the police before an arrest under section 498-A of Cr.P.C can
be done which deals with dowry cases. iv The court held that:
• No arrests should be made on the basis of the offence being non-bailable and cognizable. The manner of the arrest
should not be casual and based on a mere allegation made against a person. The arrest should be preceded by initial
investigations by the officer to assess the genuineness of the complaint.
• Proper facts and reasons should be presented before a Magistrate by the officer affecting the arrest within 24 hours
of the arrest. The Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.P.C has
been satisfied and it is only thereafter that he will authorize the detention of an accused.
• Police office must ensure that they do not arrest accused unnecessarily and Magistrate do not authorize detention
casually and mechanically. The police officer shall be provided with a checklist for arrest that come under section 41
of the CrPC and they shall forward the check list duly filed and furnish the reasons and materials which necessitated
the arrest.
• On top of arrest powers, the decision not to arrest an accused must also be forwarded to the Magistrate within two
weeks from the date of the institution of the case with a Authorizing detention without recording reasons as aforesaid
by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
• Not only Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, but this judgement will apply to all
matters where offence is punishable with imprisonment for a term which may be less than seven years or which may
extend to seven years; whether with or without fine.
The Bench consisted of Justice Chandramauli Kuamr Prasad and Justice Pinaki Chandra Ghose and they very aptly
summarized the issues with the system with the following statement:
“Arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it so also the police. There is
a battle between the lawmakers and the police and it seems that the police has not learnt its lesson: the lesson
implicit and embodied in CrPC. It has not come out of its colonial image despite six decades of Independence; it is
largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for
caution in exercising the drastic power of arrest has been emphasized time and again by the courts but has not
yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to
check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest
first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack
sensitivity or act with oblique motive.” 
On paper this seems like a step forward to a more accountable police force but in practice, it is far from the case. The
amended provisions of Cr.P.C and the directions issued by the Supreme Court were not being abided by the police
officers and the non-compliance has had consequences such as the Dr. Rini Johar v. the State of Madhya Pradesh
where Justice Dipak Misra and Justice Shiva Kirti Singh called out the officers in question and their disregard of the
law and personal liberty while ruling in favor of the petitioners and awarding a combined compensation of 10 lacs.
There seems to be a lack of education amongst the police departments of various states on the amended arrest
powers and lead to a curtailed awareness amongst the officers and lands them in trouble.
An alternate argument has been presented by the petitioners in Social Action Forum v. the Union of India which
has basically taken off the shackles on the police’s arrest powers on dowry matters and given them wide discretion v .
The legislative intent behind the dowry provision in Cr.P.C is apparently being diluted if powers of the police remain
limited and under strict supervision and cases such as the Dr Rini Johar judgment has made the police hesitant to
entertain such FIRs. The author believes that this is one of the simplest ways to harass under the protection of the
laws also adding the aspect of police corruption and oppression to the mix. 
The police force has not learnt a thing in the past 140 years and seems to maintain its identity of being a brash and
spoilt unit that seems to exploit their extensive rights over the citizens of this Republic for their own personal gain
and in complete contrast to the law. The justice system seems to be ignorant of this issue while being aware of it
through the various crime statistics presented time and again. Physical freedom of an individual is an unparalleled
right which doesn’t seem to mean anything to these parties which displays a general lack of social conscience and
leads to a further trust deficit in the justice system which can lead to further issues such as non-reporting of crimes
and the gradual extinction of good Samaritans. Therefore, a massive overhaul in the education provided to the police
force is needed, justice system needs a sense of realization of this issue and the introduction of a systematic system
to maintain accountability is required as soon as possible to retain the last remaining drops of trust and eventually
come on par with the less corrupt forces around the world. 

Vaish Associates Advocates -

Vijay Pal Dalmia and Rajit Singh Lamba