Should Arrest be the Last Option for Police?

Introduction

Human rights are a set of fundamental human freedoms to which every person on the planet is entitled. This means that everyone should be able to exercise their human rights, even if they are a perpetrator of a crime or are likely to be arrested.

The Constitution of India guarantees certain fundamental rights[1], which are essential rights and cannot be curtailed without due process[2] by any administration, legislature, or even the judiciary. As a result, an arrested individual, like any other citizen, has some basic rights that cannot be infringed upon by any organization, let alone the police. In the recent case of Sachin Saini v. State of Uttar Pradesh, the Allahabad High Court ruled that “arrest should be the police’s last resort.” They argued that arrests should only be undertaken when they are essential and cognizable, focusing on a person’s liberty and human rights as well as the corruption in India that is damaging our democratic status. For a better understanding of this remark, it is vital to comprehend the rights of a person detained, the grounds for arrest, and the case itself. 

Grounds of  Arrest

In India, the term “arrest” is not regulated in any of the country’s statutes or any legislation. The arrest of a person is dealt with under Chapter 5 of the Code of Criminal Procedure; however, it only specifies the types of arrest and how they should be carried out. Arrests can be made with or without a warrant in most cases.

A warrant is required for the arrest of a person who has committed a non-bailable [1] offence, a judge or magistrate issues this warrant on behalf of the state. In such circumstances, authorities are impotent to arrest the suspect without a warrant. Meanwhile, section 41(1) of the Criminal Procedure Code outlines the conditions in which an arrest without a warrant may be executed. This section has numeral grounds that are set out. Thereby, this section proclaims, such a person may be detained without a warrant if he or she commits a cognizable offence in the presence of an officer or obstructs a police officer while doing his or her duties. Moreover, He or she can also be arrested if he has been declared an offender under this Code or by the decision of the State Government, especially if he has eluded or attempted to elude lawful custody. Based on the current law, an arrest without a warrant can also be undertaken for a crime that is unknown to the police.

Present case analysis

In the instant case of Sachin Saini vs. State of U.P., a single judge bench of the Allahabad High Court, led by Justice Siddharth Verma, was considering a motion for anticipatory bail. This case was filed under sections 452, 323, 504, and 506 of the Indian Penal Code. The applicant’s attorney claimed that he was being wrongfully framed and that he had no prior criminal record. Furthermore, the applicant claimed that he was anxious about being detained at any time and hence sought anticipatory bail. The state’s counsel objected, dismissing agitation as a basis for providing bail and debating the severity of his allegation.

The bench referred to the National Police Commission’s third report, which was quoted by the Supreme Court in Joginder Kumar v. State of Uttar Pradesh[3]. the report suggested that “police arrests in India are one of the most common sources of police corruption.” it further elaborated by giving data that, “almost 60% of arrests were either unnecessary or unjustified, and that unjustified police action accounted for 43.2 percent of prison expenditures.”

The court noted that there is no set deadline for the arrest of an accused for whom an FIR has been filed. They believe that unjustified arrests are a grave infringement of human rights and that the fundamental right to personal liberty should not be reduced until it is indispensable, rather it must be treasured. Therefore, giving the plauding judgment, “arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required.” Consequently, without delving into the merits of the case, the court considered the nature of the charges and the applicant’s antecedents and granted anticipatory bail to the applicant.

Personal Liberty: RIGHTS OF AN ACCUSED

As rightly enunciated by Edward Buttler Lytton,” personal liberty is the paramount essential to human dignity and human happiness.”

Article 21 enshrined in our Indian constitution, states that a person’s liberty cannot be averted unless it is done in accordance with legal norms. Since this impacts the key aspects of an individual’s bodily freedom, the right to personal liberty is one of the most fundamental human rights. If the right to life is the foundation of society, then the right to freedom is at the heart of human existence. In Bandhua Mukti Morcha c. Union of India[4], the Court declared that Article 21 lies at the heart of all people’s basic rights. and should be interpreted broadly. In these circumstances, Bhagwati J. affirmed that everyone in our country has the basic right to live with dignity and not be exploited. The right to individual liberty requires that people cannot be arrested or detained and that their arrest or detention is not arbitrary unless provided for by law. This applies to all situations where an individual’s freedom is stripped away from him. International law recognizes everyone’s right to freedom and protection against arbitrary detention. Article 9 of the International Covenant on Civil and Political Rights (ICCPR) cites the same provision.

Apart from the right to live with dignity and personal liberty, an arrested individual has a number of legal rights. An accused individual has the right to know why he was detained, to be presented before a magistrate without undue delay, to be freed on bail, to a fair trial, and so forth. The landmark judgement of D.K Basu vs State of West Bengal & Ors.[5] concentrates on “the rights of the arrested person and it also compels the police officers to do certain activities” and the police can be held accountable for contempt of court as well as for the departmental actions if he fails to discharge his duty. As a result, these fundamental legal rights are a privilege that every person in our country enjoys. Even those who are incarcerated have basic rights that no one, not even the authorities, may take away. interfering with these rights would result in enormous human rights violations.[2] 

Conclusion

The Allahabad High Court’s ruling in Sachin Saini v State of Uttar Pradesh was laudable since it illuminated the reality of police officers and their treatment of detained individuals. India, being the world’s largest democracy, confronts significant challenges in its operation. The majority of them are related to rights violations, corruption, and other issues. Despite the fact that our constitution defines and protects phrases like “liberty,” “freedom,” and “equality,” the reality seems far from it. As seen by the data shown above, there is an increase in corruption and the use of unnecessary detentions. Human rights violations are a worse evil in mankind. hence a due process of law should be followed. In summation, it can be deduced that overall arrests should be decreased and avoided when it is not necessary to do so, only when arrests are requisite or custodial questioning is mandatory.

REFERENCES

https://timesofindia.indiatimes.com/city/allahabad/arrest-should-be-last-option-for-police-restricted-to-exceptional-cases-says-allahabad-hc/articleshow/83179797.cms

https://www.thehindu.com/news/national/other-states/arrest-should-be-the-last-option-for-police-says-allahabad-high-court/article33537581.ece

https://legislative.gov.in/sites/default/files/A1974-02.pdf

https://indianexpress.com/article/india/arrest-should-be-the-last-option-for-police-allahabad-hc-7140022/

https://www.scconline.com/blog/post/2020/01/29/5-judge-bench-holds-no-time-limit-could-be-fixed-while-granting-anticipatory-bail/


[1] PART III of the Constitution (CITE)

[2] Maneka Gandhi v Union of India. CITE

[3] AIR 1994 SC 1349

[4] (1997) 10 SCC 549

[5] AIR 1997 SC 610

This article is authored by Shriya Jain Student at Vivekananda institute of professional studies.

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The views and opinions expressed in this article are those of the author and do not reflect the views or opinions of Legally Flawless or its members.

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FAQ

Most frequent questions and answers
What is arrest?

An arrest is using legal authority to deprive a person of his or her freedom of movement.

Under which section can the arrest be made?

The arrest of a person is dealt with under Chapter 5 of the Code of Criminal Procedure; however, it only specifies the types of arrest and how they should be carried out. Section 41(1) of the Criminal Procedure Code outlines the conditions in which an arrest without a warrant may be executed.

What are the types of arrest?

There are two types of arrest. Firstly, arrest made with a warrant issued by the Magistrate. Secondly, arrest made without a warrant but with a legal provision permitting the detention.

Can a private individual arrest a person?

According to Section 43, a private individual may conduct an arrest of another person specifically when the arrested individual is determined to be an offender by proclaiming or commits a non-bailable offence and cognizable offences in the presence of the arresting individual.

What is difference between cognizable offence and non-cognizable offence?

A police officer can arrest a person accused of cognizable offence without warrant while for arresting a person accused of non-cognizable offence, a police officer needs a warrant issued by the court.

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