In India, policemen who arrest a person are often complying with an order received from some higher police or political authority. Are they bound to carry out such an order? All arrests are not legal. What usually happens in India is that the moment an FIR of a cognizable offence is lodged in a police station, the police rush to arrest the accused. But what is the correct legal position?
In Joginder Kumar vs. State of U.P.
(AIR 1994 S.C. 1349), the Supreme Court observed: “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, to ensure 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.
“Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. 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.”
The last sentence is important, though usually ignored by policemen. In the same judgment, the Supreme Court has observed that the power to arrest is a major source of corruption for the police, and that according to the Third Report of the National Police Commission
, about 60 per cent of arrests in our country are either unnecessary or unjustified.
The observations of the Supreme Court are, in fact, in accordance with Section 157(1) of the Criminal Procedure Code, which states: “If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith … proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender…”
The CrPC deliberately uses the words “and, if necessary, to take measures for the discovery and arrest of the offender.” The caveat “if necessary” indicates that the law does not authorise the police to arrest a suspect in every criminal case. The reality in India, however is that the moment the FIR of a cognisable offence is lodged, the police rush in to arrest, and often demand money for not doing so.
The settled position in law is that they must refuse to carry out an illegal order, failing which the policemen concerned will themselves have to face severe criminal as well as civil penalties.
In the Nuremberg Trials held after the Second World War, the Nazi war criminals took the plea that they were only carrying out orders of their superior authority, Hitler. This plea, that ‘orders are orders ‘ was rejected by the International Tribunal, and many of the accused were sentenced to be hanged.
A bench of the Indian Supreme Court of which I was a member held that fake ‘encounter’ killings by the police were illegal, and the guilty policemen must get a mandatory death sentence, vide Prakash Kadam vs. Ramprasad Vishwanath Gupta
(2011). In that decision we also observed :
” Trigger happy policemen who think they can kill people in the name of encounter and get away with it should know that the gallows await them.”
So if a policeman gets an illegal order, whether from a higher police authority, or a political authority (like a minister), it is his duty to refuse to carry it out, otherwise he will have to face criminal and civil liability. To make an illegal arrest is a crime (wrongful restraint and wrongful confinement) punishable under sections 341 and 342 I.P.C.
A wrongful arrest is violative of Article 21 of the Indian Constitution, which guarantees life and liberty to all persons. In Deepak Bajaj vs. State of Maharashtra
( 2008 ) the Supreme Court observed:
“The purpose of Article 21 is to safeguard the liberty of the citizen which is a precious right not to be lightly transgressed by anyone. The imperative necessity to protect those precious rights is a lesson taught by all history and all human experience. Our founding fathers had lived through bitter years of the freedom struggle and seen an alien government trample upon the human rights of our citizens. It is for this reason that they introduced Article 21 in the Constitution “..
“A man’s liberty of movement is regarded so highly by the law of England that it is not to be hindered or prevented except on the surest ground”
In the Gita, Lord Krishna said to Arjun that a man should do his duty, irrespective of the consequences. The policeman’s duty is to follow the law, irrespective of the consequences.
Markandey Katju is a retired judge of the Supreme Court of India