A Potent And Misused Section Of The CrPC

By Arun Bothra

Whether or not to make an arrest is a dilemma the police have to face the world over. In 2007, the Australian police arrested an Indian doctor, Mohamed Haneef, in connection with the London bomb blast. Subsequently, he was found innocent. The goof-up caused acute embarrassment to the Australian government. The image of the police was tarnished.

Imagine another scenario. How would civil society have reacted had Haneef turned out to be a terrorist and if the police had failed to arrest him? Are we not repenting our failure to arrest Dawood Ibrahim and his gang in time?

In case of a crime, should the police arrest a suspect immediately or not? Yes, many would reply. But what if the person is found innocent after investigation or trial? What if he flees and is later found to be the real culprit? This a Catch 22 situation. Some may even suggest that the suspect should be arrested after preliminaries inquiries. The fact of the matter is that a culprit never waits for the police to come and arrest him.

Daily dilemma

In India, the police face this dilemma every day. A victim wants justice and that too immediately. The suspect, on the other hand, tries to evade arrest. Faced with this situation, the police invariably arrest the person with or without substantial evidence.

A basic tenet of our criminal justice system is: 'Let hundred guilty walk free but do not punish an innocent.' The police, which is a part of the criminal justice system, functions exactly the other way round. In the court, the prosecution has to prove the guilt beyond doubt to seek conviction of the accused. But the police usually arrests as many suspects as it can.

After the case is registered, the police should investigate and ascertain the truth and collect evidence to identify the culprit. But in many cases, the course of action doesn't follow this logical sequence.

The first step after registration of the case is an arrest, with or without evidence or even an investigation. The investigation invariably starts after the arrest; the collection of evidence later still.

The recent amendment in Section 41 of the Criminal Procedure Code is a welcome attempt to rectify the anomaly. It bars the police to arrest the accused persons in cases which carry a sentence of less than seven years. This would mean that in a large number of cases the police will not be able to make arrests as a matter of routine. If an arrest is necessary, the police will have to explain the circumstances thereof.

The power to arrest has been the most potent and most misused section of the CrPC. In 2007 about 28 lakh arrests were made under the Indian Penal Code. In the same year about 7 lakh persons were convicted by the courts. This shows that out of every four persons arrested in our country, three are let off as not guilty. Many of these hapless victims are actually innocent. But the system has no way to compensate for the damage already caused. Those who file false cases rarely get punished.

In 83 per cent of the cases, police file a chargesheet in the court. Of these, only 35 per cent end in conviction. In developed countries, fewer people are arrested but more are convicted.
The CBI doesn't normally make unnecessary arrests; it has a better conviction rate compared to most state police forces.

This forced or voluntary misuse of power to arrest is particularly evident in cases of dowry torture. There are cases of women harassing their in-laws. But when a woman comes to the police station and makes allegations against the in-laws, what option does the police have.

In cases of rioting, land disputes and political rivalry, the aggrieved tend to hand over a long and often fabricated list of accused persons to settle scores. If the police decide to take action against the guilty after a thorough verification, it may be accused of helping the accused. If the accused are really guilty, they will simply escape. For the police, it is safer to arrest all the accused, innocent or guilty, produce them in court and wash their hands off the matter.

The misuse of the power to make arrests is also linked to the problem of role perception. There is a general belief at the level of the police, the people and the courts that the only task of the police is to arrest the suspects. Any decision on their guilt or otherwise is considered to be the sole prerogative of the courts.

The rampant use or misuse of the discretionary power to arrest has been a major source of corruption both at the level of police stations and lawyers in the lower courts. No wonder lawyers are opposed to the amendments.

Police and the law

People generally fear the police but not the law. It should actually be the other way round. While the police can be hyperactive in arresting people, the criminal justice system is pathetically slow in awarding the sentence to the actual culprits.
The amendment effected in the Criminal Procedure Code takes care of the first problem only. The police ought to be accountable for every arrest in keeping with the fundamental right of life and liberty. The amendment will curb the arbitrary functioning of the police and hopefully make it more responsive and professional.

The package must include reforms in the criminal justice system. The accused should be brought to justice without delay. Curbing the powers of the police without ensuring deterrent and timely punishment to the accused may turn out to be counter-productive. While guaranteeing civil liberties of citizens, fear and respect for the law must also be ensured through quick and certain delivery of justice.

(The writer is an IPS officer of the Orissa cadre. The views are his own and not those of the government)

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