NEED TO RELOOK AT POLICE POWER TO MAKE ARREST WITHOUT WARRANT IN INDIA

INTRODUCTION

The biggest hit of the Telegu industry in the year 2021 “JAI BHIM “again brings out the issues of custodial torture and police brutality in the limelight.[1]The crux of the movie revolves around the lock-up death of Rajakannu and the fight of her wife (Sengani) to get her husband to justice. Before “Jai Bhim”, the death of George Floyd in the US and the P Jayraj – Fenix custodial death case in Tamil Nādu[2] has already evoked controversy around the high-handed measures used by police in the cases of arrests without a court warrant. All of these cases are connected with the police’s oppressive measure and their powers to make whimsical arrests creating a need to relook at the Police’s arresting powers in India.

THE LAWS EMPOWERING POLICE ARREST

In cases of non-cognizable offences, police need a warrant from a judicial magistrate to act upon. The procedure is different in cases of cognizable offence. Under section 154 of CrPC, a police officer cannot refuse to write FIR in cases of Cognisable offence. This FIR gives legal validity to the police officer making the arrest. Section 41 of the criminal procedure court provides the legal powers to the police to arrest a person in case of a cognizable offence. According to Section 41 (A), a person who committees a cognizable crime in front of a police officer can be arrested right away. Clause (B) and Clause (C) are more daunting and vulnerable to misuse. Clause (B) says that when a police officer receives “credible information” that a person has committed a cognizable offence and has reasons to believe the same or if he considers arrest necessary, he can arrest the person.[3] The provisions of CRPC are susceptible to misuse due to the use of vague language and providing too much discretion to the acting police officer.

WHAT COURT’S SAY ON THE POLICE POWER OF ARREST

In the case of Joginder Kumar v. the State of U.P.[4], the apex court while trying to delimit the untrammelled power of police held that police officer needs to disclose the information relating to the arrest of the person to a relative, friends, or any person concerned. Moreover, the entry must be made into the diary about the arrest. However, the enforceability of this depends on the legal knowledge of the person arrested and their family members creating serious issues for the person from education and economic backward field. DK Basu case[5] is a landmark judgment in which the court stipulated multiple conditions to be followed by the police in the cases involving arrest in the cognizable offence. These conditions include informing a legal practitioner, disclosing the arrest information at the police control room, and presenting the arrested person before the magistrate within 24 hours. Again, the actual implementation of these provisions is far from reality at the grassroots level. Moreover, the judgments of Supreme Court Siddarame Satlingappa v. State of Maharashtra where the court held arrest as the last option, and Kishore Singh v. the State of Rajasthan where the court held that custodial torture violates article 21 were also far from being implemented across the country.

NEED TO RELOOK AT POLICE POWER OF ARREST

Firstly, the power of police to act on the furnished information in FIR sounds unbridled. There are high chances that the information that led to the arrest of a person may be vicious. Police lack proficiency in verifying the information completely. It creates a system of arrest first and investigation after. The usual story running at the criminal justice system of India is, police got some information about a person, without checking the complete veracity of the information police make arrests and then tiredly search out for any evidence against the person. Police also produce the person before the judicial magistrate who in turn give custody of the accused to the police for months, if not years. In the end, the person comes out on bail after years of languishing behind the bars. During the custody, accuses often face harassment, verbal abuse, and torture. This immediate arrest is one of the reasons behind a higher level of pendency and a low level of conviction in India.

Our constitution and courts place heavy reliance on the right to personal life and personal liberty. Article 21 states that no person shall be deprived of their life and personal liberty except under a procedure established by law. In reality, the police officer oblivious of these rights treats the arrested person as their property. Arresting a person by a police officer and depriving him of his environment and freedom due to “credible information” received by a police officer serves against the cause of Article 21. In other democratic countries that respect human rights like the US, UK, and France. Police do not have the power to arrest a person only on receiving some information like FIR or credible information regarding the commission of the cognizable offence. Instead, in these countries, proper investigation is conducted and the report was submitted before the court. It’s only after that police get the power to arrest a person by a warrant of court.[6]

The link between arrest and custodial torture also deserves deliberation’s power to arrest any person is the reason behind the high-handed measures used by police. The police force, across the country, considers that when they arrest a person, they got the power to use whatever means to collect evidence. This led to incidences of beating and abusing inside the prison cells. India is a signatory of laws governing police tortures like the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (BPUFF) and the United Nations Convention Against Torture. A revisit of arrest provision under CRPC will help India to better implement these covenants and present itself as a country that priorities human rights.

CONCLUSION

The awareness in the realm of human rights has increased manifold over the years. Indian police are still functioning on the Pre-independence model of arrest first investigation later. This power is leading to unrestricted high handiness observed by police officers. To better suit the need of time, the government should seriously consider the arrest-making provision of CrPC. It would be better if the arrest was made by police after filing the final report and taking a warrant from the judicial magistrate. This would ensure that cases filed have some sort of “veracity” and judicial machinery is not started for solving false cases.

Author(s) Name: Jeetendra Vishwakarma (NALSAR University of Law, Hyderbad)

References:

[1]Shailaswar Yadav, “Law on Reels: ‘Jai Bhim’ Court Room Drama with Impactful portrayal of state impunity and caste violence”. <https://livelaw.in/columns/law-on-reels-jai-bhim-court-room-drama-state-impunity-caste-violence-184892>

[2]  Arjun Janardan, “Tamil Nadu police custodial death case”, The Indian Express . <https://indianexpress.com/article/explained/explained-Tamil-Nadu-police-custodial-torture-father-son-killed-thoothukudi-6479>

[3] Code of Criminal Procedure, 1973.

[4] Joginder Kumar v. State Of U.P., 1994 AIR 1349.

[5] Shri D.K. Basu, Ashok K. Johri v. State Of West Bengal, AIR 1997SC 610.

[6] M Gnaman, “Why Police should not have the power to arrest without warrant”, <https://inmathi.com/2021/11/18/jai-bhim-why-police-should-not-have-the-power-to-arrest-without-warrant/30661/>

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