ABSTRACT
The FIR in India has now come to be an instrument for arrest- the investigation into a Trial has been transformed into a punitive act. In the instant article we discuss that although there is adequate law under the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS), Bharatiya Nyaya Sanhita 2023 (BNS) and the Constitution of India regarding police power to arrest an individual after an FIR has been lodged and subsequent to the judgments of the apex court namely Arnesh Kumar v. State of Bihar, D. K. Basu v. State of West Bengal, Satender Kumar Antil v. CBI; these laws are sometimes being used to harass, humiliate and blackmail the individuals and extract life and property and that amounts to de facto punishment prior to the conviction. This would involve delving deep into the concept of pre-trial detention and considering several landmark judgments such as, Arnesh Kumar, D. K. Basu, while emphasizing on the presumption of innocence enshrined in Art 21 of the Constitution and further reiterating the aspect of no custodial violence.
I. INTRODUCTION
The general rule of law is the arrest in India is an exception and that it should be resorted to ‘only when necessary to prevent a person from absconding, altering evidence or committing further offense’. The right to life and personal liberty is constitutionally protected by Article 21 and the right against unlawful arrest is protected by Articles 22(1) and 22(2) of the Indian Constitution. Law of arrest has been codified in Criminal Procedure Code, which has now been replaced by Bharatiya Nagarik Suraksha Sanhita 2023, the procedures and processes of which aim to protect the liberty of the person and check unlawful deprivation of liberty. In practice however even after the above mentioned constitutional and statutory safeguards such processes are violated and liberty of the individual disregarded. Notably, India is one of the most crowded prison nations and in India as much as 77.1 percent prisoners in Indian prisons are under-trial prisoners in 2022 according to the NCRB Prison Statistics India 2022. Structure of the article is divided as follows. Part II: Constitutional provisions regarding arrest. Part III: BNSS 2023 provisions. Part IV: Supreme Court judgments in law of arrest. Part V: Causes of unlawful arrest. Part VI: Custodial violence and D. K Basu guidelines. Part VII: Critical appraisal of BNSS 2023 amendments. Part VIII: Proposed reform measures and Part IX: Conclusion.
II. THE CONSTITUTIONAL FRAMEWORK: LIBERTY AS THE RULE
2.1. Article 21 and the right to personal liberty:
Under Article 21 of the Constitution of India, no person shall be deprived of his life or personal liberty except according to procedure established by law. In case of Maneka Gandhi v. Union of India AIR 1978 SC 597 Supreme court turned this rule into substantive one. The court took the position that there cannot be, by any stretch of imagination, an absurd, oppressive, or arbitrary procedural law, that is also “fair, just, reasonable”. Just by this single observation, court read the due process clause into clause (5) of Art. 21. No person can be deprived of his personal liberty except according to procedure that is fair, just and reasonable.
22(1) & 22(2) Articles: Procedure safeguards
Article 22(1) provides; Every person who is arrested shall be informed at the time of arrest of the reasons for his arrest and shall be entitled to have his communication with and his representations to a legal practitioner of his choice protected. As stated in Article 22(2) of the Control of Immigration Act: any person so arrested and detained must be brought before a magistrate within 24 hours (excluding time necessary to take him from the place of his arrest to the magistrate) and his detention may only be effected if the same be authorized by an order of a magistrate.
III. THE STATUTORY FRAMEWORK: BNSS 2023
3.1 Cognizable and Non cognizable class of offences.
There has been a similar dichotomy in BNSS 2023 between culprits of pan-cognizable and non-cognizable offences as already found in the CrPC. Cognizable offence, according to Section 2(1)(d) of the BNSS “means an offence for which a police officer may arrest a person without warrant according to First Schedule or any other law”, in respect of the other offenses, i.e. Non-cognizable offenses, “police cannot arrest anyone without an order from the magistrate warrant”.
3.2 Section 35 BNSS: The Power of Arrest Without Warrant
Power to arrest without warrant under sec 35 BNSS (similar to sec 41 CrPC). Under Section 35(1), a police officer can arrest a person if:
That a reasonable complaint has been made or credible information has been received or reasonable suspicion exists that the person has committed a cognizable offence. This offence is defined as an offence punishable with imprisonment for a term not exceeding seven years, or with or without a fine. And further:
The police officer has reasonable cause to suspect that a person has committed the offense.
Reasonable belief that the person has committed an cognizable offence, which is a death occurring or is likely to occur and for which a sentence of 7 years imprisonment is prescribed.
3.3 Section 60A BNSS: Prohibition on Unnecessary Arrest
Sec 60A BNSS ( amended sec 41 A Cr. PC, Chapter 8, 2010) stipulates that “No arrest can be made in contravention of the provisions of this Code or any other law”. When it is read with section 35 it can be concluded that arrest does not occur upon registration of an FIR. The police has to fulfill certain pre-requisites (conditions stated above) before arresting a person.
IV. SUPREME COURT JURISPRUDENCE: THE JUDICIAL RESPONSE
4.1 Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
In Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, the Supreme Court passed one of the very important decisions concerning powers of police regarding arrest. In this case the matrimonial dispute took shape in the form of FIR against woman for Section 498A IPC (husband or his relatives’ cruelty) and Section 4 of Dowry Prohibition Act 1961. Petitioner prayed for anticipatory bail which was rejected by both the Sessions Court and the High Court and that gave Supreme Court an occasion to check the applicability of ‘automatic arrests’ in matrimonial disputes.
Justice Chandramauli Kumar Prasad, writing for the Court, held that:
Not all FIRs necessitate arrest. Though the most critical power that the police possess is power of arrest, the same has to be exercised with greatest discretion. It is not required for police to arrest accused in all the cases where FIR is registered.
Section 41 Cr. PC. (now sec 35 BNSS): This is a compulsory section because conditions under this section are not discretionary. These conditions are to be followed by the police and the decision is not optional with any scope or margin and it should be taken with great circumspection.
Magistrates must exercise their own discretion. In re B (remand) [1974] 3 All ER 65A magistrates that decides that a remand is needed for availability must consider whether the remand is actually necessary. ’ Blindly’ getting a remand from the magistrates is not enough.
4.2. D. K. Basu v. State of West Bengal, (1997) 1 SCC 416
The Supreme Court first time laid down guidelines regarding rights of arrested persons and ways and means to curb violence in cells in D. K. Basu v. State of West Bengal (1997) 1 SCC 416. This arose from the letter written by the Executive Chairman, Legal Aid Services, West Bengal drawing the notice of the court towards the death of prisoners in police custody and lock-up. The court, based on the said letter, issued guidelines with respect to the arrest and detention and treated it as a writ petition under Article 32.
V. INSTITUTIONAL DYNAMICS: WHY POLICE MAKE UNNECESSARY ARRESTS
5.1 The Incentive problem - So we understand how come it is possible for the police to arrest more then it should, lets analyze how is the system driven. There are several reasons why police might use arrest as a routine action: Performance indicators In India, police performances are assessed, in part by how many arrests related to criminal offenses they make, how many FIRs they register, and how many charges they file.
Extortion and Corruption – Making arrest to compel other people. The weaponisation of actual or potential arrest or release of a person is frequently used as a method to extort money from a person. Corruption in the police forces is frequently cited as the most prevalent complaint about police personnel as reflected in the Supreme Court observations in Prakash Singh v. Union of India, (2006) 8 SCC 1 that corruption among police personnel was the gravest complaint but that necessary reforms recommended have not been implemented properly.
5.2 The FIR as a basis of arrest Registration of FIRs has grown up to become a favorite basis of arrest and that also in serious types of criminal offenses.
This is somewhat a consequence of Supreme Court decision in the case of Lalita Kumari v. Government of U. P., (2014) 2 SCC 1, whereby it has been held that “it is mandatory to register an FIR under section 154 when any information relating to commission of a cognizable offense is received.” It has also been held that “no investigation can be initiated by police till FIR is lodged” (Though the decision was given to ensure the police did not suppress the FIR, it resulted in police lodging increased number of FIRs, resulting in increase in arrests.)
VI. CUSTODIAL VIOLENCE AND THE D. K. BASU FRAMEWORK
6.1. The Ongoing Custodial Torture: a The law framework is there as has been indicated in the D. K. Basu guidelines and also incorporated in the BNSS 2023 but still custodial violence continues in India. According to the NCRB Prison Statistics India 2022 report 175 deaths occurred in police custody. NHRC Custody Violence received reports are numerous annually.
6.2 Third Degree and the Right Against Self-Incrimination (According to the Constitution of India, an accused shall not be compelled to be a witness against himself).
This principle of voluntariness was applied in Selvi v. State of Karnataka (2010) 7 SCC 263, where the Supreme Court refused to allow narco-analysis, polygraph and BEAP tests without consent of accused.
VII. CONCLUSION
The Indian FIR has metamorphosed into an action which is in practice if not in law similar to an arrest which renders a measure which is intended to trigger investigation in a punitive mechanism, to a weapon prior to the attainment of justice. This is no accident but the result of institutionalization of police, scanty control on arrests and deep roots of the law to maintain a distance between the act of FIR registration and arrest. BNSS 2023 was enacted to mitigate this and it has not done so, by maintaining the antiquated laws relating to arrest in details without solving their enormous defect. The increase of window to prolong custody in the hands of the police under the provisions of Section 187 (2) of the BNSS is even more worrisome, since it fosters greater possibilities of violence by the police while in custody. The apex court has made several statements of the sort in Joginder Kumar [4] and D K Basu [5] stating that arrests should be exceptions rather than the rule and Arnesh Kumar [6] and Satender Kumar Antil [7] highlighting the gaps in the laws. However, a significant difference between the law as made and the law followed remains.
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