Tuesday, October 26, 2021
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No Full Stop on Illegal Arrest

By Biplab Roy
It is popularly said that the police may make rope even with ash. Though it is impossible for the others but may be possible for the police. The perception of the common people about the police starts from this angle.

The common people hardly respect the police. They have always tremendous fear in their mind about the police. It is not because of the uniform and discipline of the police in general but it is due to power of the police to arrest the common people. It is not a myth.

In reality, the police has painted a horror picture in the mind of the common people by misusing the power of arrest conferred by law of the land and as a result the sanctity of the uniform is always at the stake.

It is no doubt a great failure of the police system as the police has not earned confidence of the common people after 67 years of independence. The police is now a day not a disciplined force in comparison to the military, para military or other central forces as lots of incidence reported across the country unfolds the police as most organised force operated at the hands of power steering persons.

Since the time of establishment of modern police by the British, police has always remained in controversy with regard to misuse of the power of arrest and such controversy has reached to the pick for last few decades resulting amendment of certain provisions of the Code of Criminal Procedure, 1973 in the year 2008 and 2010.

It is now time to relook the general provisions of arrest enjoyed by the police. Section 41 of the Code of Criminal Procedure, 1973 has empowered the police, under ten circumstances, to arrest any person without an order from a Magistrate and without a warrant.

This section has practically given wide power to the police without any check and balance and as such misuse of the said power has been increasing day by day. In this context, it is pertinent to mention that Section 41 of the Code of 1973 is almost replica of Section 55 of the Code of Criminal Procedure, 1898 enacted by the British.

The object underlying Section 55 of the Code of 1898 does not match with the post independence era particularly after coming into force the Constitution of India. The object and underlying principles of Article 21 of the Constitution has not been taken care of by the Legislature while enacting Section 41 of the Code of 1973 in place of Section 55 of the Code of 1898.

Arrests are not to be made in a routine manner as it curtails the fundamental rights of the persons. Therefore, there is always a clash between power of the police to arrest and the life and liberty guaranteed under Article 21 of the Constitution.

The procedure of arrest should be reasonable, fair and just otherwise same would be illegal. It should be remembered that the police is duty bound to register a complaint as FIR if it discloses the commission of cognizable offence but it does not mean that the police is to arrest a person as FIR is lodged against him.

The officer making the arrest must be able to justify its necessity on the basis of some preliminary investigation.

If arrest is necessary, the police is to follow the guidelines of the Supreme Court given in D.K BASU Vs STATE OF WEST BENGAL (AIR 1997 SC 610), namely, 1. the arrestee must be informed about the grounds of arrest, 2. memo of arrest to be prepared at the spot in presence of witness, 3. near relative or friend of the arrestee to be informed, 4. memo of arrest to be counter signed by the arrestee, 5. right of the arrestee to consult with Lawyer cannot be denied, 6. the arrestee to be produced before nearest Magistrate within 24 hours etc. Apart from these, other directions of the Supreme Court given time to time are 1. a female cannot be arrested in absence of female police officer, 2. a female cannot be arrested after sun set unless situation is beyond control, 3. female arrestee must be lodged in female lock-up of the P.S. under supervision of female police officer, 4. arrestee to be medically examined by Govt. Doctor, 5. Particulars of arrestee to be noted in the Lock-up Register of the P. S., 6. particulars of arrestee to be notified to the District Control Room without loss of time, 7. arrestee must not be subjected to any kind of torture during police custody, 8. reasonable care of health and safety of the arrestee to be taken etc. These guidelines are aimed to secure the fundamental rights of the persons so arrested. Be it mentioned that most of the aforesaid guidelines of the Supreme Court have been incorporated in the Code of Criminal Procedure, 1973 in the year 2008 and 2010.

Unfortunately, the police hardly follows the aforesaid guidelines and law at the time of arrest or detention of the arrestee at the P.S. In majority cases, memo of arrest is not prepared at the spot but the same is prepared at the P.S. after arrest. In most of the P.S. there is no separate Lock-up for the female accused. Lock-up Register is not normally maintained in most of the P.S. If any P.S. maintains Lock-up Register, entries of arrestees are irregular.

Particulars of arrestee are not displayed in the District Control Room. Even in case of bailable offences and non-cognizable offences many persons are detained in the P.S. and produced before the court. Custodial torture and violence are the common phenomena at the P.S. Atmosphere and condition of the P.S. Lock-up are not befitting to human being. How these things will be changed if there is no change in the attitude of the police? Violation of the aforesaid directives are contemptuous but who will bell the cat?

In view of recent amendment of Section 41 of the Code of 1973 the power of the police to arrest has been limited to some extent. At present, the police officer cannot arrest a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine unless he is satisfied that such person committed offence punishable as aforesaid.

In such case the police officer is to record reasons why such arrest is necessary in the facts of particular case. Therefore, it is now duty of the Magistrate to see whether police violates the aforesaid provisions of law or not.

The Supreme Court in ARNESH KUMAR vs. STATE OF BIHAR & ANR has clarified the whole law in this regard. Despite the above, there is no change in the police system and common people are being arrested as usual in violation of the directives of the Supreme Court and Section 41 of the Code of 1973 as amended.

The views expressed are personal of the writer Mr Biplab Roy. He can be contacted at biplabroyj@yahoo.com

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