The 18th century Italian criminologist, jurist and philosopher Cesare Beccaria was probably the first person to have theorised rules of legislation in a series of articles on various aspects of criminal law published in English as An Essay On Crimes and Punishments. He propounded the theory of separation of powers by saying it is not for the sovereign who represents society to say whether any individual has violated the law. In case of a violation, there are two parties: the state, which insists there has been a violation, and the other, who denies it. So there must be a third party to arbitrate.
In his chapter on the interpretation of statutes, he says judges have no right to interpret laws because they are not legislators. They have not received the laws from their ancestors nor is it their domestic matter. According to him,
“there is nothing more dangerous than the common axiom, ‘the spirit of the laws is to be considered’. To adopt it is to give way to a torrent of opinions. This may seem a paradox to vulgar minds, which are more strongly affected by the smallest disorder before their eyes, than by the most pernicious, though remote, consequences produced by one false principle adopted by a nation.”
In another context, he says that if a magistrate acts in an arbitrary manner, he opens a door to tyranny.
When the codes of criminal law were sought to be codified under one consolidated Act in the 19th century, the primary anxiety was to make it certain and unambiguous.
However, undoubtedly there are situations when a statute lacks clarity and has gaps. But where the Code of Criminal Procedure (CrPC) is concerned, one finds it is a very well balanced piece of legislation that is in complete conformity with the demands of a modern political state. The periodical amendments, suggested by Law Commissions headed by eminent jurists and duly deliberated on in parliament, have ensured that it keeps pace with the changing times. It is in this background that I will enumerate some sections of the code so it is easy to understand how the law has to be put in motion which is free from prejudices, fair on all counts.
The CrPC divides offences under two heads – cognizable and non-cognizable. Cognizable offences are those where the police can arrest someone without obtaining warrants from a magistrate, whereas in non-cognizable offences, a warrant is essential. There are also two types of cases – one filed in the court called a complaint and the other instituted in the police station called an FIR. The police can arrest any person on information that he has committed a cognizable offence.
Under section 166, any police officer of a certain rank can search premises in another police station’s jurisdiction, but he shall only do so after recording in writing the grounds for doing so. The second check is that the officer conducting such search shall forthwith send notice to the officer in charge of the P.S within the limits of where the place is situated. The person so arrested shall be produced before a magistrate within 24 hours.
Section 41 says the police officer has to be satisfied that such arrest is necessary:
- To prevent such person from further committing such offence
- For purposes of investigation
- Prevent the person from causing evidence to disappear.
The 177th Report of the Law Commission in 2001 noted that cognizability in the code is not premised upon the quantum of punishment prescribed or the gravity of the crime but upon the need to arrest for either or all the reasons specified in Section 41 and sometimes even to protect the offender from the public’s wrath. It is for this reason that there is a close nexus between cognizability and arrestability.
Their discussion may be of some interest:
“We must say emphatically at this stage that there must be fear of the police in the public does not appeal to us. This is really a hangover of the colonial pst where it suited the colonial powers to have a(lower 0bureaucracy alienated from people but loyal to its masters…the police should be imbued with the democratic spirit and a spirit not of contempt or superciliousness.”
Section 41 was amended in 2010 on the basis of the Law Commission report. The objective of the amendment was purportedly to maintain a balance between the liberty of citizens, society’s interest in the maintenance of peace as well as law and order. Sections 41A to 41D were proposed through a Bill in 2002 but finally enacted only in 2009.
Vague as the object may sound compressed in one sentence but when one reads the amended sections one finds they are explicit, set in plain English and do not require any elaboration whatsoever. It also exhibits a rare concern for personal liberty and its safeguards, and casts corresponding duties on the omnipotent state, a might against which most are unfairly pitted.
- Section 41 A gives direction to the police officer to issue a notice to the person if he feels the person is not required to be arrested.This in effect means that contrary to popular perception, a police officer is not required to arrest a person if he does not think such arrest is not required for the purposes mentioned in Section 41 mentioned above.
- Section 41-B enjoins that while making an arrest the police officer shall: –
a) bear an accurate, visible, and clear identification of name which will facilitate the identification.
b) prepare a memo of arrest which shall be:
- Attested by one family member or member of the society.
- counter signed by the accused.
- This evidently is in terms of Article 20/21 which insulates a person from arbitrary arrest.
- Section 41-C: When a memo is not attested by a family member, the person so arrested must be informed that he has a right to inform a family member. This once again protects a person from arbitrary arrest and prevents mysterious disappearances.
- Section 41-D: The person arrested can meet an advocate of his choice during interrogation. This is once again in line with the constitutional right of a person to counsel, even if it is free.
A lot of people have an impression that the Supreme Court, in the case of Arnesh Kumar vs State of Bihar, has given directions in respect to the aforementioned amended provisions as absolute insurance against arrests. I may clarify here that Arnesh Kumar was a case of 498A (cruelty to women) wherein it said that the police and magistrates were to strictly follow the procedure contained therein in cases of 498A. Any failure to comply with them by a police officer would result in a departmental inquiry as well as contempt of court and the magistrate would also be liable for departmental action if he remanded an accused without complying with the provision of Section 41D. The court hastened to add that the said directions would apply to all cases which were punishable with less than 7 years.
Firstly, in my experience, not a single instance of a departmental proceeding against a police officer or a magistrate nor a case of contempt has been reported. So much for the constitutional provision that law declared by the Supreme Court is law of the land.
As I understand it, the Supreme Court, having carved out an exception in cases punishable under seven years, has inadvertently done a disservice to the statute which was clear and unambiguous to all categories of cases. Was this what Baccaria feared when he staunchly stood against judicial discretion? I have no means of knowing.
Provisions pertaining to arrest of a woman
There are certain other provisions that pertain to a woman arrestee which may be of some importance here because we are discussing Disha Ravi’s case.
Section 46(1) provides that while arresting a woman, unless the circumstances indicate to the contrary and unless the police officer is a female, the police officer shall not touch the female.
Section 46(4) prescribes that no women, unless in exceptional circumstances, shall be arrested after sunset and before sunrise and the women police officer making such an arrest in exceptional circumstances shall obtain prior permission of the judicial magistrate within whose local jurisdiction the offence is committed, or the arrest is made.
Upon the arrest, the police are to follow certain procedures.
Section 50 enjoins the police officer to inform the arrested person about the grounds of arrest and that he is entitled to the right of bail and he could arrange the sureties.
Section 50(A)(1) makes it obligatory for the police officer making the arrest to immediately inform the arrestee’s friends, relatives or such other persons about the place where the arrested person is being detained and inform the arrested person of such rights. Entries of all the arrest shall be kept at the police station.
Section 50(2) says “the police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station”.
Under Section 56, a police officer is to immediately take a person arrested without a warrant before the magistrate having jurisdiction or to the officer in charge of the police station.
Section 57 (A) says that the arrested person shall not be detained for more than 24 hours except the time taken during the journey before the production before the magistrate.
Section 58 says that the cases of all persons arrested without warrant must be reported to the local DM or SDM.
Under Section 60(A), arrests are to be made strictly according to the code, no arrest shall be made except in accordance with the provisions of the code.
Duties of magistrate
Sec 50 (A)(4) prescribes that it shall be the duty of the magistrate before whom such arrested person is produced to satisfy himself that the requirement of section 50(2) – i.e. that the police had an obligation to inform relatives or such nominated persons where he is being kept in custody and the arrestee had been informed of such an obligation have been complied with.
Section 167 prescribes the procedure after the arrested person is brought before the magistrate. The police officer has to produce the relevant papers, including entries of the case diary. Sub section 3 gives discretion to the magistrate to remand an accused to police custody but only on recording his reasons.
I may clarify here that once an accused is brought before the magistrate, he has to firstly satisfy himself on the mandate of Section 50 A(4) and also whether there is any material against the accused warranting a remand. He has to peruse the documents produced by the police and only thereafter take the arrested person in custody. Once the magistrate takes custody of the accused, he can send him to jail or any other place for safekeeping or hand him over to the police for further interrogation after recording his satisfaction.
Section 304 makes provision for legal aid to an accused in the trial. The Supreme Court has directed that a lawyer be provided to an accused on the first appearance.
From the above discussion of procedure, the following emerges:
- A police officer has the right to arrest any person suspected of committing a cognizable offence.
- There are special provisions with regard to arrest made outside his territorial jurisdiction.
- Special provisions with regard to the arrest of women.
- Mandatory formalities have to be conducted before making an arrest.
- There is a prescribed procedure underlined for production before the magistrate.
- There are certain responsibilities upon the magistrate while remanding the accused persons.
- The code mandates that all the provisions for arrest enumerated above have to be strictly followed.
Now, the important question is, if the police does not adhere to the statutory procedure what remedy lies with an arrestee?
In my view, the arrest has to be held illegal. It deserves to be quashed and compensation should be granted, which should to be paid personally by the police official who made such an arrest.
The duties of police officials have been laid out clearly through various judicial pronouncements as well as in the CrPC and it is the same code that provides sanction for transgressions and it is by the virtue of the same that the blanket application of ‘sovereign immunity’ cannot be taken, since the misfeasance was never a part of their statutory duty.
In other words, if any authority acts in excess of the powers that he has been assigned, the consequences should be borne by the person concerned. This then acts as a major deterrent to police officials who try to flout the law while executing their duties.
Coming onto the question of executing one’s duties, it has to be appreciated that duties are the tool of justice, which were created to protect the interests of the state in general.
A question of justice
So, the other thing which comes to my mind is a larger question as to how we define justice. Devdutt Pattanaik in his book, ‘Jaya’, which an excerpt of the Mahabharata retold, talks about a conversation between Janameya, the son of King Parikshit and Astika, the nephew of the King of Nagas called Vasuki. Upon being asked by Janamejaya “what Dharma really is” and whether the Pandavas were fighting for justice, Astika replies, ”War was about Dharma and Dharma is not about justice; it is about empathy and wisdom. Dharma is not about defeating others, it is about conquering ourselves. Everyone wins in Dharma.” Elsewhere he says the Mahabharata is about the greatness of India, for it contains all that has made Indians what they are; tolerant people who value inner wisdom over outer achievement.
I believe it is in this way that we are required to ask ourselves whether the arrest of Disha Ravi was just – in terms of jurispurudence as well as law.
Freedom of expression is one of the foundational pillars of democracy which, of course, is subject to the principles of Utilitarianism and hence, comes with its own riders. So, there is something else that may be contextual.
M.C. Chagla in his book, Roses in December, tells us about his college life at Oxford and that he was a member of all kinds of unions and societies at that time, specifically the ‘Servants of India Society’ and ‘Oxford Indian Majlis’ which was seen as an ‘extremist’ body of which every Indian student was a member.
Their meetings started with ‘Vande Mataram‘ and ended with ‘Saare Jahaan Se Achha Hindustan Hamara‘, discussions about Bertrand Russel, Sarojini Naidu and a host of other Indian nationalists. He also contributed meaningful articles for the Asiatic Society on the non-cooperation movement while stationed in England. The years notably were 1920-22, when India was actively agitating against British Rule and incidentally, there was an English law on treason i.e. the Treason and Felony Act, 1848, defining treason as “to compass, imagine, invent, devise or intend” to deprive the Queen of her Crown.
Incidentally, the participation of the students at Oxford was open, and never was any preventive action taken by the British government against them for generating public opinion or airing their views that India be liberated from British Rule.
P.S: Neither any hints are given nor taken.
Anjana Prakash is a former judge of the Patna high court and practices in the Supreme Court.
(With inputs from Prachi Nirwan, Advocate Delhi High Court)