Liberty is one of the concomitant organs of one’s freedom. However, liberty and freedom are two very distinct concepts. Liberty is the authority to do what one wants but subject to certain limitations. Freedom, on the other hand, is the absolute liberty without any limitations. Which is why, the Indian Constitution under Article 21 uses the expression “right to life and personal liberty” – a right that cannot be taken away except when there is a procedure established by law to do so.
The term ‘Arrest’ has not been defined in the Code of Criminal Procedure, 1973 (hereinafter referred to as “the CrPC). However, a literal meaning suggest that arrest is the curtailment of one’s liberty. Whenever, any person is apprehended of being accused of an offence, either for a cognizable or a non-cognizable offence, the Police has the power to arrest such person according to Section 41 of the CrPC. The following Section lays down a list of instances wherein the Police can arrest any person. Then, is it mandatory for the Police to arrest a person whenever an FIR has been registered against him or when he has been apprehended to be an accused in any case?
“The power to arrest is one thing and the justification of it is another.”
In 1994, in the case of Joginder Kumar v. State of Uttar Pradesh [1994 (4) SCC 260], a writ petition had been filed against illegal arrest and detention of the Petitioner by the Police. The hon’ble Supreme Court relying on the Royal Commission Report on Criminal Procedure and on the 3rd Report of the National Police Commission held that the power to arrest and the need and necessity to arrest were two different aspects of arrest. The Court, in the following words, held that (see, para 20):
“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. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that 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 to the person's complicity and even so as to the need to effect arrest….A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.
Thereafter, again in D.K. Basu v. State of West Bengal [(1997) 1 SCC 416] while dealing with the issue of custodial violence and checks on the abuse of police power, the hon’ble Supreme Court relying on the decision in Joginder Kumar’s case (supra) laid down certain procedural requirements necessary to effect an arrest (see, para 36) which later on led to the introduction of Sections 41B (procedure of arrest and duties of officer making arrest), 41C (control room at districts), 41D (right of arrested person to meet an advocate of his choice during interrogation), and 50A (obligation of person making arrest to inform about the arrest, etc. to a nominated person) in the CrPC.
Again in 2014, in the case of Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273] the hon’ble Supreme Court gave a landmark judgment holding that necessity of arrest was of fundamental importance to prevent the abuse of power of arrest. The hon’ble Supreme Court held that the Police officers cannot arrest an accused unnecessarily and that the Magistrates should not authorise detention casually and mechanically. The Court made it mandatory for the Police officers to record its reasons for effecting an arrest in all those cases wherein the offence is punishable with imprisonment for a term less than seven years or which may extend to seven years; whether with or without fine.
The object of arrest is not a punitive measure to punish the accused by curtailing his liberty, but, to smoothen the process of investigation and to prevent the commission of further offence. The criminal law does not mandate that whenever an FIR is registered or a criminal complaint has been filed, it is mandatory for the Police to arrest the accused therein. If investigation of a case can be smoothly undertaken without the presence/need of the accused, the Police officers must refrain from unnecessarily arresting and confining such accused person. Thus, the ‘power to arrest and the need and necessity to arrest’ are two distinct concepts and arrest of an accused must only be effectuated until it is necessary for the purpose of investigation or to prevent the commission of further offence.
Insightful