Police is a tool of harassment as perceived by the supreme court

A Romenkumar Singh *

123rd Raising day of Manipur Police at parade ground of 1st battalion Manipur Rifles on Oct 19 2014 :: Pix -Arunkumar Thongam - DIPR

"When dignity is lost, the breath of life gets into oblivion. In a society governed by the rule of law where humanity has to be a laser beam, as our Compassionate Constitution has so emphasised, the police authorities can not show the power or prowess to vivisect and dismember the same"
-> Justice Dipak Misra in (2012)8 SCC 1 – Para 41.

Nobody is oblivious of the fact that police in India has to perform a difficult and delicate task, particularly, when many hard-core criminals, like, Extremists, Terrorists, Drug peddlers, Smugglers who have organised gangs, have taken strong roots in the society, but then such criminals must be dealt with by the police in an efficient and effective manner so as to bring them to justice by following rule of law.

2. The Police came into existence in a society as the repository of the security and penal functions of the State. The inexorable march of time produced constitutional monarchies and democratic republics out of the pre-existing absolute monarchies and oligarchic republics. Even the leaderless "acephalous" societies, which occasionally existed off the mainstream, developed, a systematised mode of governance of their own. But the role and functions of the police everywhere, at least till the turn of the last century, continued and developed only as an agency for maintenance of internal Security, preservation of the public peace and enforcement of the law.

The responsibility for prevention and detection of crime naturally formed a vital function of this police role. It is the general feeling of the society that while exercising police power concerning the liberty of a citizen, police has not come out of its colonial image and continuing to indulge in large scale arrest without justification in terms of law but justifying itself by resorting to the certain provisions of the Criminal Procedure Code, 1973 (Cr.P.C. in short) like Section 41 Cr.P.C. which enables police to arrest without warrant.

3. POLICE IS LARGELY CONSIDERED AS A TOOL OF HARASSMENT, OPPRESSION AND SURELY NOT CONSIDERED A FRIEND OF PUBLIC.

While delivering a judgement relating to matrimonial dispute the Apex Court in Arnish Kumar V. State of Bihar, (2014)8SCALE 273 observed that police is largely considered as a tool of harassment, oppression and surely not considered a friend of public.

The brief of the case is that there is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husbands and his relatives arrested under the provision. In a quite number of cases, bedridden grandfathers and grandmothers of the husband's, their sisters living abroad for decades are arrested.

"CRIME IN INDIA 2012 STATISTICS" published by the National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for the offence under Section 498-A IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were literally included in their arrest net. Its share is 6% out the total persons arrested under the crime committed under the Penal Code. It accounts for 4.5% of total crimes committed under different sections of the Penal Code, more than any other crime excepting theft and hurt. The rate of charge-sheeting in cases under Section 498-A IPC is as high as 93.6% while the conviction rate is only 15% which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.

4. ATTITUDE TO ARREST FIRST HAS BECOME A HANDY TOOL TO THE POLICE WHO LACK SENSITIVITY OR ACT WITH OBLIQUE MOTIVE.

The Supreme Court while directing the police to maintain a balance between individual liberty and societal order while exercising power of arrest and held at Para 5 of the above judgement:
"Arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it so also the police. There is a battle between the lawmakers and the police and it seems that the police has not learnt its lesson: the lesson implicit and embodied in Cr.P.C. It has not come out of its colonial image despite six decades of Independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasised time and again by the Courts but has not yielded desired result. Power of arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable.

It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.

5. DIRECTIONS OF THE SUPREME COURT TO REGULATE ARREST BY POLICE AND DETENTION ORDER BY MAGISTRATE.
ARREST UNDER SECTION 41 OF Cr.PC

Para 7.1 of the Judgement:
From a plain reading of the aforesaid provision (S.41 Cr.Pc), it is evident that 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, can not be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in an manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required can not be ensured. These are the conclusions, which one may reach based on facts.

Para 7.2 of the Judgement:
The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest.

Para 7.3 of the Judgement:
In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by Sub-clauses (a) to (c) of clause (1) Section 41 Cr.P.C.

6. DIRECTION OF THE SUPREME COURT TO MAGISTRATE NOT TO AUTHORISE DETENTION IN A ROUTINE, CASUAL & CAVALIER MANNER.

Para 8 of the Judgement:
An accused arrested without warrant by the police has the Constitutional Right under Article 22(2) of the Constitution of India and Section 57 Cr.P.C. to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey.

Para 8.1 of the Judgement:
During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 Cr.P.C. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner.

7. PRODUCTION OF ACCUSED BEFORE MAGISTRATE SHALL ACCOMPANY THE FACTS, REASONS & CONCLUSION FOR ARREST

Para 8.2 of the Judgement:
Before a Magistrate authorised detention under Section 167 Cr.P.C., he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested are satisfied. If the arrest effected by the Police Officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty-bound not to authorise his further detention and released the accused. In other words, when an accused is produced befre the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn to be satisfied that the condition precedent for arrest under Section 41 Cr.P.C. has been satisfied and it is only thereafter that he will authorise the detention of an accused.

8. AUTHORISING DETENTION SHOULD NOT BE BASED UPON THE IPSE DIXIT OF THE POLICE OFFICER

Para 8.3 of the Judgement:
The Magistrate before authorising detention will record his own satisfaction may be in brief but the said satisfaction must reflect from his order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement, etc. the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording his satisfaction in writing that the Magistrate will authorise the detention of the accused.

Para 8.4 of the Judgement:
In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant, and secondly, a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny.

9. GUIDE LINES ISSUED BY SUPREME COURT TO PREVENT UNNECESSARY ARREST BY POLICE AND CASUAL AUTHORISATION FOR DETENTION BY MAGISTRATE.

Para 11 of the Judgement:
Our endeavour in this judgement is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions.

Para 11.1 of the Judgement:
All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down following from Section 41 Cr.P.C.

Para 11.2 of the Judgement:
All police officers be provided with a check list containing specified Sub-clause under Section 41(1)(b)(ii);

Para 11.3 of the Judgement:
The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

Para 11.4 of the Judgement:
The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer interms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

Para 11.5 of the Judgement:
The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing.

Para 11.6 of the Judgement:
Notice of appearance in terms of Section 41-A Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing.

Para 11.7 of the Judgement:
Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.

Para 11.8 of the Judgement:
Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

10. ABOVE DIRECTIONS SHALL ALSO APPLY TO ALL OFFENCES PUNISHABLE WITH IMPRISONMENT FOR LESS THAN SEVEN YEARS OR UP TO SEVEN YEARS.

Para 12 of the Judgement:
We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine.

Para 13 of the Judgement:
We direct that a copy of this judgement be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance.

SIGNIFICANCE OF THE JUDGEMENT

The most significant aspect in this judgement is that contempt proceeding for violation of the directives of the Supreme Court shall be initiated before the High Court having territorial jurisdiction as is laid down in D.K. Basu's case and departmental action by the High Court against the Judicial Magistrate for violating the directives of the Supreme Court.