The amendments to Section 41 of the Criminal Procedure Code through legislation have raised a lot of protests from some lawyers' associations across the country. However, the changes to the section that deals with the power of the police to arrest aim at balancing the liberty of citizens and the maintenance of peace and law and order. The power to arrest is the main cause of police excesses and needs to be circumscribed.

COMMENTARY

Curbing the Power to Arrest

S R Sankaran

courts, by a section of lawyers, in states like Andhra Pradesh among others. This article deals speciﬁcally with the amendments to Section 41. The amendment is based entirely on the recommendations

The amendments to Section 41 of the Criminal Procedure Code through legislation have raised a lot of protests from some lawyers’ associations across the country. However, the changes to the section that deals with the power of the police to arrest aim at balancing the liberty of citizens and the maintenance of peace and law and order. The power to arrest is the main cause of police excesses and needs to be circumscribed.

S R Sankaran (srsankaran@yahoo.com) is a retired civil servant, based in Hyderabad, who has been actively involved in human rights issues.

he Criminal Procedure Code (CrPc) (Amendment) Act 2008 was recently passed by Parliament and

received presidential assent. The amend

ments were based on the reviews under

taken by the Law Commission of India. As

explained in the statement of objects and

reasons of the bill, the need to amend the Code of Criminal Procedure, 1973 to ensure fair and speedy justice and to tone up the criminal justice system has been felt for quite sometime. The Law Commission had undertaken a comprehensive review of the Code of Criminal Procedure in its 154th report and its recommendations have been found very appropriate, particularly those relating to provisions concerning arrest, custody and remand, procedure for summons and warrant-cases, compounding of offences, victimology, special protection in respect of women and inquiry and trial of persons of unsound mind. Also, as per the Law Commission’s 177th report relating to arrest, it has been found necessary to revise the law to maintain a balance between the liberty of the citizens and the society’s interest in maintenance of peace as well as law and order. The need has also been felt to include measures for preventing the growing tendency of witnesses being induced or threatened to turn hostile by the accused parties who are inﬂuential, rich and powerful. At present, the victims are the worst sufferers in a crime and they don’t have much role in the court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system. The application of technology in investigation, inquiry and trial is expected to reduce delays, help in gathering credible evidences, minimise the risk of escape of the remand prisoners during transit and also facilitate utilisation of police personnel for other duties. There is an urgent need to provide relief to women, particularly victims of sexual offences, and provide fairtrial to persons of unsound mind who are not able to defend themselves. To expedite the trial of minor offences, deﬁnition of warrantcase and summons-case are to be changed so that more cases can be disposed of in a summary manner.

Pre-Amendment Powers

While the amendments to the CrPC cover all the above aspects, the amendment to Section 41 regarding the powers of arrest by police has attracted special attention, leading to protests including boycott of

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made by the Law Commission of India (headed by justice B P Jeevan Reddy) in its 177th report (December 2001), which exclusively dealt with this issue and held wide-ranging consultations (based on a consultation paper) with the National Human Rights Commission and police functionaries. The Law Commission suggested the amendment of Section 41 and in particular substitution of Clauses

(a) and (b) of sub-section (1) of the section as well as the deletion of the present subsection (2) and substitution of another provision in its place. As emphasised by the commission, report aimed at maintaining a balance between the liberty of the citizens (the most precious of all fundamental rights) and the societal interest in maintenance of peace and law and order. The commission noted that it was no doubt a difﬁcult balance but it had to be attempted, and achieved to the extent possible. It also took note of certain important decisions of the Supreme Court including the decisions in Joginder Kumar vs State of UP (1994) and D K Basu (1997). Clause (a) of sub-section (1) of Section 41 empowers a police ofﬁcer to arrest, without an order from a magistrate and without warrant, any person “who has been concerned in any cognisable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned”. Similarly, under Clause (b), any person “who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking” can also be so arrested in a like manner. Clause (a) of sub-section (1) thus speaks of arrests of four categories of persons, namely: (i) A person who has been concerned in any cognisable offence; (ii) A person against whom a reasonable complaint has been made of his having been concerned in any cognisable offence; (iii) A person against whom credible information has been received of his having been concerned in any cognisable offence; and (iv) A person

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Economic & Political Weekly

COMMENTARY

against whom a reasonable suspicion exists of his having been concerned in any cognisable offence. The Law Commission considered that the term “(i) person who has been concerned in any cognisable offence” is ambiguous and vague – and vagueness or ambiguity is not permitted when we are dealing with the liberty of a citizen. It noted that the Law Commission has been repeatedly suggesting introduction of provisions precisely designed to regulate this power by saying that before the arrest is made, the ofﬁcer must have with him some material or information on the basis of which he is fairly and honestly satisﬁed that the person must be arrested. The commission also observed that the second, third and fourth situations contemplated by Clause (a) is not very different and do not advance the cause of libe rty, much of them revolving around the expression “having been concerned in a cognisable offence”. The commission also found that Clause (b) of sub-section (1) of Section 41 was not only vague but highly objectionable because it constitutes the police ofﬁcer the sole judge of the fact mentioned therein. After careful analysis therefore, it recommended that the existing Clauses (a) and (b) of sub-section (1) be substituted by the following clauses, as has now been done by the amendment, which is worth reproducing for a proper understanding:

In Section 41 of the principal Act,–

(i) in sub-section (1), for Clauses (a) and (b), the following clauses shall, respectively, be substituted, namely:– “(a) who commits, in the presence of a police ofﬁcer, a cognisable offence;

(b) against whom credible information has been received that he has committed a cognisable offence punishable with imprisonment for a term which may extend to seven years whether with or without ﬁne, if the following conditions are satisﬁed, namely:–

(i) the police ofﬁcer has reason to believe on the basis of that information that such person has committed the said offence;

(ii) the police ofﬁcer is satisﬁed that such arrest is necessary;

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence or for the reason that detention of such

Economic & Political Weekly

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person in custody is in the interest of his safety; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to the police ofﬁcer; or

(e) that unless such person is arrested, his presence in the court whenever required cannot be ensured; and the police ofﬁcer shall record while making such arrest, his reasons in writing. (ba) against whom credible information has been received that he has committed a cognisable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without ﬁne or with death sentence and the police ofﬁcer has reason to believe on the basis of that information that such person has committed the said offence.”

Sub-section (2) says that “any ofﬁcer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons speciﬁed in Section 109 or Section 110”, i e, to arrest without a warrant and without an order from a magistrate. The Law Commission examined this sub-section. It considered this kind of carte blanche power to arrest “habitual offen ders” of the speciﬁed kind at any time of his choosing, by an ofﬁcer in charge of a police station – if the section is construed literally – as intrinsically capable of abuse and liable to be characterised as discriminatory. And if the section is construed as a preventive measure, it is unnecessary and superﬂuous. The Law Commission considered that sub-section

(2) is superﬂuous and unnecessary – apart from the inherent discriminatory character of the provision and that it deserves to be deleted from the CrPC. Following the recommendation of the Law Commission, sub-section (2) was substituted in the recent amendment as follows:

(2) Subject to the provisions of Section 42, no person concerned in a non-cognisable offence or against whom a complaint has been made or credible information has

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been received or reasonable suspicion exists of his having so concerned, shall be arres ted except under a warrant or order of a magistrate.

The commission also considered that it would be appropriate to suggest that in cases of offences punishable with seven years or less imprisonment, with or without ﬁne, where the arrest of the accused is found not necessary but his cooperation or presence is required for the purposes of investigation, the police can serve a notice calling upon him to appear before the police during the course of investigation, or before the court, as the case may be, whenever called upon to do so. Accor dingly, an amendment was made in Section 41A:

41A (1) Where the case falls under sub-section (1) of Section 41, the police ofﬁcer may, instead of arresting the person concerned, issue to him a notice of appearance requiring him to appear before the police ofﬁcer issuing the notice or at such other place as may be speciﬁed in the notice and to cooperate with the police ofﬁcer in the investigation of the offence referred to in sub-section

(1) of Section 41.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice, it shall be lawful for the police ofﬁcer to arrest him for the offence mentioned in the notice, subject to such orders as may have been passed in this behalf by a competent court.

Chief Source of Corruption

It is necessary to bear in mind the large number of arrests that are made by the police in the country. According to the statistics compiled by the National Crime Records Bureau under the Ministry of Home Affairs (published in “Crime in India 2007”), the number of persons arrested in the country in 2007 was 27,80,559 under Indian Penal Code (IPC) cases and 40,87,246 under special and local laws, making a total of about 68 lakhs. In A ndhra Pradesh ,the number of arrests in 2007 were 2,36,176 under IPC and 7,17,089 under others making a total of about

9.5 lakhs. The major reason for abuse of

COMMENTARY

authority and excesses by police is the enormous power they wield over life and liberty by means of the power to arrest. It is the poor who are often the victims of such police action. To prevent whimsical and arbitrary or even vindictive action, it is essential that the power of arrest is circumscribed. Moreover, once a person is taken into custody, he is rendered vulnerable to abuse and torture in the name of interrogation and hence, any reduction in the number of arrests should serve to bring about a reduction in the number of custodial crimes as well.

In fact, even as early as 1980, in its third report, the National Police Commission headed by Dharma Vira ICS along with a distinguished police ofﬁcer C V Narasimhan as member-secretary, while referring to the quality of arrests by police in India considered that the power of arrest was one of the chief sources of corruption in the police. The Police Commission reiterated the fact that as the denial of the liberty of a person is a serious matter and as arrest and detention of a person can cause incalculable harm to the reputation and self-esteem of a person, no arrest should be made in a routine manner on a mere allegation of commission of an offence made against a person. It pointed out that the powers of arrest, search, seizure, institution of criminal cases mark several stages in executive police action which afford a vast scope for misconduct by police personnel of different ranks particularly at the operational level causing harm and harassment to the citizens. As mentioned earlier, the report observed that, by and large, nearly 60% of the arrests were either unnecessary or unjustiﬁed. The commission expressed its deep concern and felt that it would be u seful to lay down some broad guidelines for making arrests. According to the c ommission, an arrest during the investigation of a cognisable offence can be considered justiﬁed in one or other of the following circumstances:

(i) 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 terror stricken victims.

(ii) the accused is likely to abscond and evade the processes of law.

(iii) the accused is given to violent b ehaviour and is likely to commit further offences unless his movements are brought under restraint.

(iv) the accused is a habitual offender and unless kept in custody, he is likely to commit similar offences again.

The commission obviously recognised the fact that as the denial of the liberty of a person is a serious matter and as arrest and detention of a person can cause i ncalculable harm to the reputation and self-esteem of a person, no arrest should be made in a routine manner on a mere allegation of commission of an offence made against a person. The Supreme Court also in the case of Joginder Kumar vs State of UP and others (1994 SCC (Crl) 1172) endorsed and reiterated the recommendations of the National Police Commission. It was explained clearly by the Court that the existence of power to arrest is one thing but the justiﬁcation for the exercise of it is quite another. No arrest should be made without a reasonable satisfaction being 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 the need to effect arrest. In D K Basu vs government of West Bengal (1997 1 SCC 416) the Supreme Court laid down that in addition to the statutory and constitutional requirements, it would be useful and effective to structure appropriate machinery for contemporaneous recording and notiﬁcation of all cases of arrest and detention to bring in transparency and accountability. The Court issued a set of 11 requirements to be followed in all cases of arrest or detention including clear identity of police personnel carrying out the arrest; preparation of a memo of arrest; right of information of arrest to friend or relative; examination for injuries if any; medical examination by a trained doctor every 48 hours; permission to meet lawyer, etc.

Colonial Hangover

It is also necessary to bear in mind the valuable observations of Law Commission of India in its 177th report:

Liberty is the most precious right of a citizen. Only a person who is deprived of the liberty can understand the signiﬁcance and

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value of liberty. In any society including ours the very fact of arrest places a person’s r eputation under a cloud. Arrest by police is by itself humiliating and demeaning. It reduces the individual’s self-respect. His image in the society suffers. Is it reasonable and fair and just to vest such enormous power in any and every police ofﬁcer – indeed in every police constable in this country – to deprive a citizen of his freedom and liberty merely because he thinks that the person is concerned in a cognisable offence, without being prima facie satisﬁed on the basis of some relevant material or information that the person concerned appears to be prima facie guilty.

We must say emphatically at this stage that the argument that there must be fear of police in the public (for an efﬁcient discharge of the functions of the police to maintain law and order) does not appeal to us. This is really a hangover of the colonial past, where it suited the colonial power to have a (lower) bureaucracy alienated from people but loyal to its masters – a truism emphasised by the National Police Commission. In a democratic society, the police should also be imbued with the democratic spirit and a spirit of service towards the people – not an attitude of contempt or superciliousness. In UK, a policeman is looked upon with trust, as a friendly creature.

It would not do if the police looks upon the mass of people, most of them no doubt poor, as potential criminals who, given a chance, are bound to commit some or other cognisable crime. We do not think that bulk of our population, poor that they are, are all potential criminals. There are undoubtedly some such elements, but those are hardly kept off their activity for “fear of police”.

The amendment to Section 41 of the CrPC is therefore a necessary and welcome measure in the larger interests of the people. There seems to be no ground for any objection at all, much less from the lawyers, who are undoubtedly a well informed and respected section of the society and committed to uphold the values of liberty and freedom inscribed in the Constitution of India.

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