Explained: The Law of Arrest, Remand and Bail

The Code of Criminal Procedure and Supreme Court judgments make it clear that a magistrate may remand an accused to custody only if the police are able to show why an arrest is necessary.

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The recent arrests of Mohammed Zubair and Rohit Ranjan and the continued custody of the former have drawn attention to police powers of arrest, magisterial functions of remand to custody and grant of bail.  

Offences in India are broadly categorised  by the Code of Criminal Procedure (CrPC) as cognisable or non-cognisable, bailable or non-bailable. For a cognisable offence, the police may register an FIR and arrest the accused without a warrant. If the offence is bailable, the police must release the arrestee upon a reasonable security; if it is non-bailable, only a court can order their release on bail.

Yet, police high-handedness and a sluggish magistracy have been a lasting source of concern to the Supreme Court.

As far back as in 1994, the Supreme Court in Joginder Kumar v State of U.P. emphasised that simply because the police has the power to make an arrest does not mean that an arrest should be made. Given the paramountcy of liberty in our constitutional scheme, the .power of arrest should be exercised only as a necessity.

In 1997, the Supreme Court, in DK Basu v State of West Bengal, issued a continuous mandamus on the mode and manner of arrests. Later judgments have noted the duty of the magistracy to ensure compliance with these safeguards. Time and again, safeguards that the police and magistrates must observe have been prescribed, as this protection is not just the essence of liberty but is also needed to prevent the humiliation and stigma caused by an arrest. It would thus incumbent on the police to exercise great circumspection before resorting to the drastic power of arrest.

The iteration of these principles in judgment after judgment prompted various amendments to Chapter V of the CrPC, which deals with arrests by the police while investigating cognisable offences.

What safeguards did the 2009 CrPC amendment bring?

Section 41 of the CrPC was amended in 2009 to divide the non-bailable and cognisable cases where the police has the power to arrest into two kinds. Those carrying imprisonment of seven years or less fall under Section 41(b), to be dealt with differently than those carrying a term higher than seven years, which come under Section 41(ba).

As per Section 41(b) CrPC, offences punishable with seven years or less are not  to automatically lead to arrest. Before making an arrest in such a case, a police officer is required to record their satisfaction that the arrest is necessary to prevent the accused from absconding, repeating the offence, or tampering with the evidence.

Also read: ‘Justice System Can’t Sink Lower’: Judges, Experts on Zubair’s Bail Denial, Legal Lapses

Where an arrest is not necessary for these reasons, it shall be recorded that the accused has not been arrested, and instead a notice under Section 41A – also introduced by the 2009 amendment – to appear before the police and aid the investigation shall be issued, and it is obligatory for the accused to comply with this notice. If there is compliance, there is a statutory protection from arrest. If there is non-compliance, or there are other compelling reasons for arrest, the fact must be recorded in writing and – subject to orders passed by a competent court – an arrest may be made.

What did the Supreme Court say about power of arrest in 2014?

The statute’s emphasis on the recording of reasons is to enable the magistrate before whom the accused is produced after arrest, to examine the necessity of arrest and continued custody. This is an obvious inference, but one that has also been elaborated  by the  Supreme Court in Arnesh Kumar v State of Bihar (2014):

“Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny. (emphasis added)”

Further with regard to section 41A of the CrPC, the court held that:

The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.” (emphasis added)

What is the role of the magistrate when police seek custody?

It is worth noting that when a person accused of an offence is first produced before a  magistrate, the latter has a duty – and not the power of discretion – to release the accused if the preconditions of Section 41 are not met. Moreover, the magistrate is required to independently assess the factors, and not go by the police officer’s claims. Likewise, an investigating officer’s claim that there is non-compliance with a 41A notice (in a case punishable with seven years or less) is not sufficient for the magistrate to accept it as gospel. He or she has to independently assess the need for arrest and remand.

Custody – whether police or judicial – granted without an objective and sustainable conclusion by the magistrate about the necessity of arrest or continued remand would violate this duty which is, as the Supreme Court says, a “solemn function”. It would be deprivation of liberty without procedure established by law. The magistrate’s “solemn function” helps safeguard the most vital of constitutional rights – the right to life and liberty. Therefore, it would follow that if the violation of such a magisterial duty is noted by any superior court, it should be immediately rectified.

In sum, even before Section 41A of the CrPC kicks in, there must be an application of mind on whether arrest is at all necessary and reasons have to be recorded for the view taken. If a Section 41A notice has been given, and the police claims non-compliance with the same, this claim must be assessed to be valid by the magistrate before any remand to custody can be given, and this independent assessment must be reflected in the remand order..

Acting under Section 167 CrPC, the magistrate must order the release of the accused if the reason for arrest/custody is not established. Not authorising further custody is not the same as releasing the accused on bail; it is a simple refusal to authorise custody.

What about the rules governing bail?

In addition, the magistrate has the power, under Section 437, when someone accused of an offence that carries a term of 7 years of less is produced before her, to order their release on bail – even if the accused has not made an application for bail.

A sessions court or high court is under no statutory restriction for ordering release on bail, though judicial precedent spells out some factors governing the same. Gurcharan Singh and others v State (1978) and many cases that follow list factors such as the nature and gravity of the offence, and the likelihood of the accused fleeing from justice or tampering with evidence.

Importantly, the court in Gurcharan Singh, has also observed that a person accused of non-bailable offences which are not punishable with death or life imprisonment ought to be released on bail unless there are exceptional circumstances which may defeat proper investigation and a fair trial. The gravity of the offence is to be assessed in terms of the likely sentence upon conviction as held in Sanjay Chandra v CBI (2012).

By no logic can it be argued that offences carrying imprisonment of three to five years are grave enough to deny bail. As noted above, even the statutory scheme has imposed a restriction on arrest in offences that carry seven years or less. Yet, across the country the tendency to routinely arrest persons even when the offences carry three-five years is rampant. And this tendency appears to be often unchecked by the magistracy, thus negating the purpose of section 41 and 41A of the CrPC.

Raghav Tankha is a lawyer practising in Delhi.