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Jai Bhim film has shed light once again on police brutality. At the core of what is wrong in our system is the power that the police have to arrest people without a warrant from a judicial magistrate. The power of arrest is used arbitrarily, whimsically and capriciously, and sometimes vindictively against innocent persons.

The power of arrest given to police starts with arrest of a person whom the police suspects, and then leisurely the police go for investigation to collect evidence. After arrest, the suspect is kept in police custody for some time for preparing case records, then produced before the Judicial Magistrate, who in turn remands the person to prison for judicial custody for days or months (depending upon the seriousness of the offence). Then the suspect comes out on bail after spending money and with the help of his family and relatives. He faces the trial for several years. The outcome of the case depends a lot on the calibre of the lawyer he is able to engage.

Whether the offence or case against a suspect (person) is true or false, the person has to face the entire ordeal of Arrest – Remand – Prison – Bail – Trial – Judgement. That means, in our system, every suspect of every small or serious offence, grave or not so grave offence, whether the suspect is innocent or not, he has to suffer this pre-trial ordeal.

The arrest leads to much loss of image, reputation, and status. Upon arrest, the suspect has to face police harassment on the way to police station, at the cell in police station and till the time of remand to prison for judicial custody. This often includes beating, torture and verbal abuse. The arrested person has to spend a good amount of money to engage a lawyer to come out of prison on bail.

Whether the offence or case against a suspect (person) is true or false, the person has to face the entire ordeal of Arrest – Remand – Prison – Bail – Trial – Judgement. That means, in our system, every suspect of every small or serious offence, grave or not so grave offence, whether the suspect is innocent or not, he has to suffer this pre-trial ordeal.

Our criminal justice system allows the police to arrest any person without warrant, on complaint, or ON information or ON suspicion. Article 21 of the Indian Constitution says no one shall be deprived of his life or personal liberty except under procedure established by law. No police officer cares for Article 21 and its real meaning and significance.

Arrest is nothing but total isolation of a person from his society. It is like uprooting a grown plant from its natural environment and circumstance, by cutting and severing its roots, and placing it in an unfamiliar environment and circumstance as a caged animal. His right to move is restrained; his liberty is taken away. He comes to know of the exact reasons for his arrest after a chargesheet is filed before the court after collection of evidence.

A police officer on receiving information about a commission of offence by a suspect is required to file an FIR. Once the information finds place in the FIR, Sec.154 Cr.P.C, immediately gives power to the police officer to arrest the suspect.

The information that led to the filing of the FIR could have been faulty for various reasons. No police officer is equipped fully to verify the information, neither does he care to verify.

The system of arrest first, investigation later dates back to the British era when we Indians were slaves. During their rule to exploit the wealth and hard labour of Indian people ruthlessly and without any resistance, the British put in place the Criminal Procedure Code. This code is still the law and has not gone through any basic or structural changes. The code gave full-fledged and unbridled power to suppress and oppress the Indian public, whenever a resistance or protest symptom was found among the people.

The relationship between the British police and the Indian public was never cordial, but always inimical. The British police viewed the people as slaves and colonial subjects. They felt they had the power to do anything and did not respect the people. The Criminal Procedure Code perpetuates the colonial attitude, behaviour and character in the Indian police.

The Cr.P.C that was passed in 1898 has been amended several times — 1952, 1955, 1973, 2005, 2009 and so on on the basis of some recommendations of Law Commissions, and directions of apex court judgements like D.K. Basu Case and Joghinder Kumar case.

These amendments were, however, too minor to make the code suitable for our sovereign, democratic republic. To be specific, no amendment has ever touched the power of arrest given to police. High Courts and Supreme Court gave several judgments on how the police should make records and what records are to be maintained and who are to be informed. The arrested person has to be informed of his right to approach an advocate and move for bail. In practice, these are not followed.

Sec.41(1)(a) of the code says any police officer may arrest without a warrant any person who commits in the presence of a police officer, a cognizable offence; Sec.41(1)(b) gives the police officer the power to arrest a person against whom a reasonable complaint has been made, or credible information has been received, or reasonable suspicion exists that he has committed a cognizable offence.

In all developed countries like the US, France, Japan and the UK, the Power of Arrest to police is given by a warrant from court, through Criminal Prosecutors. It is given not simply after receiving information, but only after collection of evidence, completion of investigation, and submission of final report through criminal prosecutors. We as a democratic, sovereign republic guaranteeing all human rights should follow the same procedure.

Cases of arbitrary arrests, torture and miscarriage of justice have not reduced at all even today. Nothing will stop the police from making arbitrary arrests unless the power of Arrest without warrant, as prescribed in provisions Sec.41(1) (b) and Sec.41(1) (b a) of Cr.P.C., is removed.

The power of arrest without warrant to police can be allowed only in cases which attract Sec.41(1) (a) Cr.P.C, which deals with persons who commit a cognizable offence in the presence of a police officer.

In all developed countries like the US, France, Japan and the UK, the Power of Arrest to police is given by a warrant from court, through Criminal Prosecutors. It is given not simply after receiving information, but only after collection of evidence, completion of investigation, and submission of final report through criminal prosecutors. We as a democratic, sovereign republic guaranteeing all human rights should follow the same procedure.

For those cases, which are all defined in Sec.41(1) (b) and Sec.41(1) (b a) of Cr.P.C, either as punishable upto 7 years imprisonment or as punishable above 7 years upto death sentence the power for issuing warrant of arrest should be vested with the nearest Judicial Magistrate. The warrant can be used after appraisal by the connected Asst. Public Prosecutor of the area where the offence is committed, after getting all relevant information, and after oral and documentary evidences are collected with scientific accuracy after completion of investigation.

This will stop all maladies like false cases, custodial tortures, custodial rapes, custodial deaths, statistical convictions, fake encounters etc., from the historical pages of Indian Criminal justice system. It will also make the police focus on proper investigation to collect evidence and establish the guilt of the accused before starting the process of arrest and trial. The power to arrest has led to a defocus on investigation.

Our undertrial population is only growing and our conviction rate is below 40%. In the US, in comparison, conviction rate is more than 90%. Only proper investigation and filing of “true” cases will help solve this problem.

(The writer is a criminal lawyer in Palacode, Dharmapuri district)

Please click here to download the full submission by the author to the Committee for Law Reforms


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