Y. Jyothi Sheeran, Guest faculty at School of Excellence in Law, Chennai
And a practicing advocate at Madras High Court.
AN OVERVIEW OF ARREST AND REMAND IN OFFENCES PUNISHABLE WITH IMPRISONMENT FOR LESS THAN 7 YEARS.
The right of freedom from arbitrary arrest and detention has been recognized as one of the Human rights in the International Convention on Civil and Political Rights under Article 9. The Art. 9 of the International Convention on Civil and Political Rights declare as follows,
“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such prockkedure as are established by law.”
India has ratified the above convention and as such India is bound by the above article. The bare reading of the above article would show that none can be deprived of his personal liberty except in accordance with law. The constitution of India Article 21 reiterates the same and provides that, “no person shall be deprived of his life or personal liberty except according to procedure established by law”. The Personal liberty, is a sacred and cherished right under the Constitution. In India the Constitution and the Criminal Procedure Code provides protection to its citizens from arbitrary arrest and detention.
Arrest: -
The procedure for arrest has been provided under the substantial law of Criminal Procedure Code. The power to arrest is not restricted to police. However, in India the police exercise the power of arrest predominantly. The false implications and wrongful arrest of persons, affects the fundamental rights of the individual. These kinds of practice also lead to overcrowding in prison. The Magistrates plays very important role in curtailing the arbitrary arrest and unnecessary detention by police. To prevent the abuse of power to arrest by the police, the Criminal Procedure Code was amended based on the Supreme Court’s direction in the case of Joginder Kumar Vs State of UP ((1994) 4 SCC 260 : 1994 SCC (Cri) 1172) and D.K Basu Vs State of West Bengal ((AIR 1997 SC 610)) and the Law commission’s recommendations in its 177th report. The Hon’ble Supreme Court in the case of Joginder Kumar v. State of U.P, observed the dynamics of misuse of police power of arrest and opined,
“No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another …. No arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.”
Under Section 41 Cr.P.C., before the above said amendment a police officer is authorised to arrest a person without warrant or without order from magistrate when a person has committed a cognizable offence. However, the amendment to Section 41 Cr.P.C. has curtailed the power of police to arrest the accused persons involved in offences punishable with imprisonment up to seven years. As per the amended act, to exercise the power of arrest in respect of offences punishable with imprisonment of less than 7 years, the police officer is required to record reasons for arrest in writing. And the police officer can exercise the power of arrest only under the following circumstances,
1) The arrest of accused is necessary to prevent commission of further crime.
2) The arrest of accused is necessary for proper investigation
3) To prevent the tampering of evidence
4) To prevent the accused from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer
5) To ensure the presence of the accused in court.
If the above stated criteria are not satisfied, the police officer can direct the accused person to appear before him for investigation by issuing notice to him under section 41A of Cr.P.C. The accused person on whom the notice is served shall comply with the terms of the notice. In case of non-compliance of the terms of notice, it is lawful for the police officer to exercise his power of arrest. The investigation officer who decides not to arrest an accused, should forward the same in writing to the Magistrate within two weeks from the date of the institution, and the time may be extended by the Superintendent of police of the district for the reasons to be recorded in writing. Further the notice of appearance in terms of Section 41A of Cr.PC 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. The 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 High Court having territorial jurisdiction.
The Hon’ble Supreme Court in its landmark Judgment in Arnesh Kumar Vs State of Bihar ((2014) 8 SCC 273) has analysed the section 41 of Cr.P.C in detail and has reminded the police authorities about their limitations in exercising the power of arrest by issuing directions and guidelines. It is observed in the above Judgment by the Hon’ble Supreme Court that “Arrest brings humiliation, curtails freedom and cast scars forever.” The emotions behind the arrest have been clearly observed in the above Judgement. It is laid down in the above Judgement that,
“ a person accused of 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, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. 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 any 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 cannot be ensured. These are the conclusions, which one may reach based on facts. 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. Law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police officers 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 (e) of clause (1) of Section 41 of Cr.PC.”
Arrest is restriction of liberty of a person, which is a fundamental right guaranteed under our Constitution of India. The arrest of person would affect his reputation and status in the society and the police must exercise their power to arrest very cautiously. The Code of Criminal procedure by way of amended provisions has restricted the arrest in offences punishable with imprisonment of less than 7 years to a considerable extent. However, the police sometimes exceed their power to arrest. In such cases, the magistrates are the check point for illegal arrest and in preventing unnecessary detention. The Magistrate on production of accused before him is required to independently assess the reasons and shall ensure that the arrest has been made in accordance with law.
Remand: -
The section 167 of Criminal Procedure Code provides that, whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. The Magistrate may authorise the detention of the accused person if he is satisfied that adequate grounds exist for doing so. The Hon’ble Supreme Court in Arnesh Kumar Vs State of Bihar ((2014) 8 SCC 273) has observed that,
“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. Before a Magistrate authorises detention under Section 167, Cr.PC, 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 is 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 release the accused. In other words, when an accused is produced before 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 is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its 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 its satisfaction in writing that the Magistrate will authorise the detention of the accused. 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.”
While scrutinizing the remand request the magistrate must see that the police officer has duly filled in the check list as per Section 41(1)(b)(ii) and stated the reasons and materials which necessitated the arrest. To satisfy regarding the reasons stated in the above check list, the magistrates shall peruse the case diary. The section 167(1) of Criminal Procedure Code requires the officer in charge of police station to forward the relevant entries in the case diary relating to the case, to the magistrate while producing the accused. The extract of case diary is necessary for the magistrate to get satisfied about the adequacy of grounds of arrest and it is mandatory on the part of magistrate to peruse the same. The Magistrate after perusing the remand report and the above particulars furnished by the police should record his satisfaction in writing and only then the magistrate should authorize the detention of the accused. Authorising detention without recording reasons by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
The Magistrates are the guardian of the personal liberty of a person who has been arbitrarily arrested. The Magistrates are the check points to restrict the arbitrary arrest and further detention. The non-application of judicial mind while exercise the power of remand would violate the very fundamental right of the person. The magistrate can very well refuse to remand the accused if he is not satisfied with the above stated legal requirements. In the case of State Vs Nakheeran (2019(1) CTC 497), the remand has been refused the learned magistrate and the Hon’ble Madras High Court has upheld the order of refusing remand. It is observed by the Hon’ble Madras High Court in the said Judgement that the learned Magistrate refused to remand the accused only on the ground that no sufficient material is available in order to justify a remand and that the learned Magistrate has in fact perfectly applied his mind. The magistrate in view of the above recent judgement is also very well empowered to refuse remand to prevent unnecessary detention.
Conclusion:
The arrest and in offences punishable below 7 years has been considerably restricted after the amendments introduced in Criminal Procedure Code. However, in some cases the police exceed their power in arrest and in such cases the magistrates should cautiously apply their judicial mind and should prevent unnecessary detention. The prevention of unnecessary detention would save the courts time in entertaining bail application and would reduce the overcrowding at prison. More importantly it would protect the fundamental right to personal liberty of an individual.