Power to arrest, and its misuse

Physical liberty is one of the most cherished freedoms for any human being. Consequently, it is the denial of liberty that individuals fear most. This is the reason why the power of arrest by enforcement agencies of the state, during investigations and before conviction, is liable to extreme misuse by unscrupulous complainants or by unscrupulous or overzealous elements within enforcement agencies.

This propensity of misuse is noticed in some of the recent judgements of the Supreme Court as well. In a recent judgement in Dr Subhash Kashinath Mahajan’s case, the apex court issued directions imposing certain checks and balances in respect of the powers of the police to arrest persons accused of offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Some time back, the Supreme Court had, in its judgement in Arnesh Kumar’s case, imposed checks and balances on the powers of the police to arrest people accused of offences under Section 498-A of the Indian Penal Code.

The apex court has, in Lalita Kumari’s case, directed that save in certain exceptional cases, as soon as a complaint of a cognisable offence is given to the police, they must register an FIR (and should not proceed to inquire into the correctness of the allegations before registering an FIR).

Without dwelling deep into the specifics of these judgements, a common thought appears to run through them and that is the subject matter of the present article — one, that an FIR is the starting point of any investigation and ought to be registered as soon as a complaint is made and the registration of an FIR is not an establishment (or even a prima facie establishment) of the correctness of the complaint; and two, the power of arrest during investigation and before the conviction of the accused must be checked and used only for very compelling reasons.

It is not unknown that there are instances where complaints are given and FIRs are registered to intimidate people against whom the complainant has an axe to grind. A majority of the people who are investigated against are finally acquitted and the period of imprisonment undergone by them during the investigation can never really be compensated.

The intimidatory value associated with the registration of an FIR is largely on account of the fact that in common public and media discourse, the registration of an FIR is looked at as the establishment of guilt of the accused, whereas quite to the contrary, the registration of an FIR is only the first step to start an investigation. This is especially so in high profile cases involving so-called powerful people when the popular public opinion is that the accused should be arrested immediately on the registration of an FIR.

Interpreting CrPC

The enforcement agencies also are quick on the gun to seek an arrest. In fact, the law in this regard is quite clear. While interpreting Section 41 of the CrPC in M C Abraham’s case, the Supreme Court reiterated that though the investigating officer has the power to arrest an accused during the course of investigations, it is not mandatory for him to do so.

The power to arrest is discretionary — a discretion which must be exercised with great caution. The correct course of action when a complaint of a cognisable offence is given to immediately register an FIR. The registration of an FIR must not by itself normally give rise to any unnecessary prejudice to the accused, least of all his arrest, until such time as the individual is convicted after the trial.

Of course, there are bound to be some exceptions to this – viz. if there is a strong reason to believe that the accused are likely to abscond or if they are likely to intimidate the witnesses or if they are likely to commit some further crime or if they are not cooperating with the investigations. The satisfaction of these conditions must be clearly established by the investigating agency and must not be on the basis of vague and unsubstantiated assertions.

The restrictions on arrest must, of course, be coupled with a quick investigation and fast trials – as a result of prolonged trials, the conviction (if at all) does not happen when the memory of the incident or offence is fresh.

People, therefore, do not think of the conviction and consequent sentence as the punishment — and want to short-circuit this process by demanding arrest even before conviction. The judgements of the Supreme Court in the above direction are welcome.

However, what is most important is well trained, independent and professional enforcement agencies, as also an aware and sensitised media, which realise that pre-trial arrest must not be seen or used as a punishment since punishment must always follow conviction of an accused. This really is the basis of the rule of law.

(The writer is an Advocate on Record of the Supreme Court)