How the police misuse the powers to arrest people
Next to custodial torture, one thing respectable people fear most is arrest. You might have been a respectable citizen all your life. However, a single arrest before the residential locality you have lived in all your life with your head held high destroys your social prestige forever. Knowing the effect of the consequence of arrest on one’s social reputation well, police abuse this power liberally to lord over the people and feel their ‘power’.
Most people think and even police officers harbour a notion that if somebody has committed an offence, he must mandatorily be arrested. In fact, the expectation of delivery of justice from the system has fallen so low that most complainants become happy if the accused is arrested.
Because the police officers have discretionary powers in this regard, arresting or not arresting is a regular source of great income for the police.
Arrested- what does the law says?
Few people know that vide the Code of Criminal Procedure (Amendment) Act, 2008, the Government have amended Section 41 pertaining to arrest. Now people cannot be arrested as a matter of routine for every offence. You should have committed an offence that makes you liable for imprisonment for seven years or more. And even then, the police officer has to satisfy many conditions in writing.
In practice, police officers have been brazenly violating it. You will be amused to learn that in Shaukin vs State of UP (2011), the Allahabad High Court found that the cops in UP were not following the law nearly three years after its enactment also. Then it directed the DGP, UP to issue a circular to the effect to ensure compliance. The DGP issued circular No. 36/2011 on 11.11.2011. However, why would the cops bother about it? So, after a year the DGP was obliged to issue another circular No. 57/2012 on 26.12.2012. But, the cops are a law unto themselves. They did not bother to pay any attention to something that cut into their great income and power. So a third circular was issued vide circular No. 41/2014 on 17.06.2014! You can imagine the situation yourself—the DGP, after having been ordered by the High Court, is forced to issue not one but three circulars and still the cops do not bother.
What does the Supreme Court say about arrest?
In Arnesh Kumar (2014), the Supreme Court has proclaimed, “Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and magistrates do not authorise detention casually and mechanically.” In this judgment, the Supreme Court said practically everything that we have been repeatedly saying throughout this book on all that is ugly, beastly and ghastly with the police. Unfortunately, the police have paid no heed to it and the State does not want to let go of any of its powers.
Amongst other things, the Apex court observed that arrest brings humiliation, curtails freedom and cast scars forever. Police have not come out of their colonial image despite six decades of independence; it is largely considered as a tool of harassment, oppression and surely not considered a friend of the public. The power of arrest is one of 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 police officers who lack sensitivity or act with oblique motives.
Police officers make arrests as they believe that they possess the power to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another.
Similar views were expressed in Bhadresh Bipinbhai Sheth (2015) also.
Police Remand and Judicial Remand: Use and Abuse
Readers must know that the only purpose of arrest for an offence is to produce you before a magistrate within 24 hours. The magistrate may release you on bail or take further action as discussed below. It was held in Ashak Hussain (1990), that this detention of 24 hours cannot be used for any interrogation. Citizens must be aware of this important legal right.
If the cops want to interrogate you, they must obtain a police remand from the Court. Unfortunately, in practice, police remand is granted rather easily. In Arnesh Kumar (2014), the Supreme Court had commented, “Our experience tells us that it is not exercised with the seriousness it deserves. In many cases, detention is authorised in a routine, casual and cavalier manner…It shall never be based upon the ipse dixit (a dogmatic and unproven statement) of the police officer…To this limited extent, the Magistrate will make judicial scrutiny.”
In Kulkarni (1992), it was held that a maximum period of 15 days is allowed for police remand or police custody. However, even during that period, the Court can change the nature of custody from police to judicial or vice-versa. Beyond 15 days, it can only be judicial custody.
Theoretically, if you are arrested unlawfully, you can file a case against the concerned cop under Section 220 and 339 IPC. However, in reality, your chances of getting them convicted are almost zero.
The objective of limiting police custody to 15 days under Section 167 CrPC was to reduce the possibility of torture in police custody. However, there is a catch in Section 167 CrPC itself. Crooked cops exploit it. The bar of 15 days does not apply if the same arrested accused is involved in a different case arising out of a different transaction. So they book you in another case to obtain more police remand!
How D. K. Basu Guidelines Have Been Flouted All Along
In the celebrated judgment in the case of D. K. Basu (1996), the Supreme Court had provided certain guidelines in the matter of arrests. They are more honoured in the breach than in the observance. My comments on some of the guidelines are given within brackets in italics to show how they have continued to be flouted with impunity for a quarter of a century!
(i) About the necessity of wearing identification and name tags by the cops. (Police officers of units like the Crime Branch, Delhi Police Special Cell and Anti-Terrorism Squads or Special Operations Group generally do not carry any identification on them as they are invariably in civvies and without any identification or name tag.)
(ii) About making an arrest memo in the presence of a family member. (This presumes that the arrest will be made from the house of the accused. More often than not, this is not the case. They have been arresting thousands of people from public places like railway stations, bus stands hotels etc. There is no question of getting any member of the family as a witness there.)
(iii) About informing a friend or relative about the arrest. (Fact is police go out of the way to ensure that nobody gets wind of the arrest. There are decided cases, in which illegal detention of several weeks was proved in the Courts. In Muarif Qamar (2009), it was established that two innocent persons Muarif Qamar and Irshad Ali were arrested illegally and kept in illegal detention for weeks, after which they were implicated in false charges of terrorism. It took them 11 years to get justice!
(iv) About medical examination of the arrestees. (Had this been observed, there would have been no case of custodial torture or death! The very fact that people are tortured shows that it is being violated.)
(v) About meeting their lawyers during interrogation. (Such ‘theoretical’ provisions do not help anybody. How many people in India have lawyers or even know lawyers, whom they could call ‘their lawyers’? Only rich people have such lawyers.)
Theoretically, if you are arrested unlawfully, you can file a case against the concerned cop under Section 220 IPC (Whoever, being in any office which gives him legal authority to commit persons for trial or to confinement, or to keep persons in confinement, corruptly or maliciously commits any person for trial or to confinement, or keeps any person in confinement, in the exercise of that authority knowing that in so doing he is acting contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both) and Section 339 IPC (wrongful restraint). However, in reality, your chances of getting them convicted are almost zero. Do not live under false hopes.
Handcuffing: yet another means of insulting people
In Sunil Batra (1978), the Court made it clear that under-trials are in custody, they are not undergoing punitive imprisonment. Reckless handcuffing and chaining in public degrades, puts to shame finer sensibilities and is a slur on our culture. They should not be used except in a small category of cases where an under-trial has a credible tendency for violence and escape. Similar views were held in Citizens for Democracy (1995) and M. P. Dwivedi (1996) also. The permission to handcuff is to be given by the magistrate at the time of grant of remand. In Prem Shankar Shukla (1980), it was held that the judicial officer before whom the prisoner is produced must ask the prisoner, as a rule, whether he has been subjected to handcuffs or other ‘irons’ treatment and, if he has been, the official concerned shall be asked to explain the action forthwith in the light of this judgment.
In spite of so many categorical judgments of the Supreme Court, it is still fairly common for people to be handcuffed, basically to humiliate them publicly. The cops have discovered a loophole here also. The judgments say that where a person is arrested by the police without a warrant, the police officer may if he is satisfied, on the basis of the guidelines, that it is necessary to handcuff such a person, he may do so till the time he is taken to the police station and thereafter his production before the magistrate. Further use of fetters thereafter can only be under the orders of the magistrate.
This means that if the cops are clever, they can always record that at the time of arrest, the person more so, if he happens to be some sort of activist or a student taking part in some protest action did exhibit clear tendencies of violence or tendency to escape, etc. If they are cleverer, they might make a video recording of the arrested persons indulging in a hot argument with the police and perhaps a little scuffle too. That much is enough to handcuff them and humiliate them.
