Police and the law: India
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Arresting the accused
Arrest is last option for police: HC
June 3, 2021: The Times of India
The Allahabad high court has held that arrest should be the last option for police and should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. “Irrational and indiscriminate arrests are a gross violation of human rights,” the court added.
While granting anticipatory bail to a police constable, Justice Siddhartha quoted the case of Joginder Kumar vs State of UP (AIR 1994 SC 1349), where the Supreme Court has referred to the report of National Police Commission, in which it is mentioned that arrests by police are one of the chief sources of corruption in police. TNN
Court judgements
SC: i) Courts interfering with police probes; ii) FIRs
AmitAnand Choudhary, April 14, 2021: The Times of India
Holding that the police and the judiciary operate in their specific spheres of activities and one should not tread over the other’s domain, the Supreme Court deprecated the practice of courts interfering in police investigations by passing orders routinely to stay probe or grant protection to the accused.
A bench of Justices D Y Chandrachud, M R Shah and Sanjiv Khanna said the police investigation ought not to be scuttled at the initial stage and courts can interfere by staying or quashing the probe only in exceptional cases when no prima facie case is made out against an accused and the case appears to have been lodged only to harass. Justice Shah said a brief on the reasons is warranted so that it can demonstrate application of mind by the court.
‘FIR not encyclopedia with all facts, details’
Police have the statutory right and duty under the relevant provisions of the Criminal Procedure Code to probe a cognisable offence. Courts would not thwart any investigation into cognisable offences. It is only in cases where no cognisable offence or offence of any kind is disclosed in the first information report that the court will not permit an investigation to go on. The power of quashing should be exercised sparingly with circumspection,” the bench said.
It said extraordinary and inherent powers of the court do not confer an arbitrary jurisdiction to act according to its whims or caprice and the courts should be cautious while interfering in criminal investigations. The bench said courts should not go into the merits of the allegations in the FIR when the investigation is in progress and police must be permitted to complete the probe.
“It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law,” the bench said and added that the FIR is not an encyclopedia which must disclose all facts and details relating to the offence.
“Quashing of a complaint/FIR should be an exception rather than an ordinary rule. Ordinarily, the courts are barred from usurping the jurisdiction of police, since the two organs of the state operate in two specific spheres of activities and one ought not to tread over the other’s sphere,” it said.
It is only in cases where no cognisable offence or offence of any kind is disclosed in the FIR that the court will not permit an investigation to go on. The power of quashing should be exercised sparingly with circumspection... It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law —SC
Discretionary powers of police officers
Magistrate cannot question why a police officer arrested an accused or not
Abhinav Garg, Court can't question cops why arrest not made: HC, Nov 6, 2017: The Times of India
Settling an important debate, Delhi high court has ruled that a magistrate cannot question the discretionary power of a police officer whether to arrest an accused or not, and that it should be only concerned with the chargesheet.
A bench of justices Vipin Sanghi and P S Teji, while answering a reference sent to it by a chief metropolitan magistrate, noted that at best, the magistrate can return a chargesheet due to an incomplete probe, but not because an accused was not arrested during the investigation.
“The metropolitan magistrate cannot examine whether the discretion of the IO to arrest, or not to arrest the accused, has been properly exercised. He is only concerned with the chargesheet, as filed. He may return the chargesheet if he finds that the investigation is not complete, or the charge is not borne out from the evidence collected and filed with the chargesheet. But he cannot return the same merely because the accused has not been arrested and produced in custody at the time of filing the chargesheet,“ the bench observed.
HC's ruling is expected to clear the air on several cases where magistrates often question the probe agencies --Delhi Police or CBI -on why they didn't arrest an accused during the course of investigation. The court posed this query when they come across faulty investigations after failure of the police to conduct custodial interrogation of the accused.
Interestingly , the trial court's reference came while dealing with a case where the Central Bureau of Investigation filed a chargesheet without arresting the accu sed, alleged to be involved in offences of cheating, forgery of government documents and criminal conspiracy .
The magistrate had questioned why CBI didn't consider it necessary to arrest the accused, even as the agency maintained they cooperated in the investigation. Firing the agency , the magistrate noted that “whenever such matters are investigated by the local police i.e. Delhi Police, the accused persons are mostly arrested not only in cheating cases but also in all small cases of theft or possession of stolen gas cylinder, electric motor, mobile phone, vehicles, etc. But when the matter is investigated by the CBI, such white collar criminals committing serious offences of cheating and embezzlement of crores of rupees enjoy the liberty throughout their lives.“
Aided by amicus curiae Pramod Kumar Dubey , the high court interpreted provisions of the Criminal Procedure Code to make it clear “a magistrate's view that in offences where the sentence is beyond seven years, the investigating agency should necessarily arrest the accused and produce him in custody at the time of filing the chargesheet has no basis and is contrary to the statutory scheme.“
Answering the reference, HC was clear that a “metropolitan magistrate cannot examine whether the discretion of the Investigating Officer (IO) to arrest, or not to arrest the accused, has been properly exercised“.
