Cuffed But Unbroken: Understanding Arrest Rights And Due Process

Colourable Exercise of Power

To briefly recapitulate the facts, the petitioner, a businessman, was accused of not honouring a property transaction. As the Apex Court noted, by registering an FIR for a “civil dispute”, the investigating officer in a mala fide manner gave it “the colour of a crime”. The petitioner had secured an interim anticipatory bail from the Supreme Court on 8^th December 2023, and appeared at the police station on 11^th December. The police granted him bail in light of the SC Order and served him a notice of appearance under Section 41A of Code of Criminal Procedure 1973 (CrPC) on the very same day. However, on his appearance the next day, the police issued another notice to the concerned ACJM seeking to place him in police custody. The court granted the police custody promptly in flagrant disobedience to the bail already granted by the SC. At the end of the police custody so granted, the petitioner was forced to file fresh bail bonds and was kept in custody for an additional 48 hours even after the end of police remand. Upon his release, he suffered alleged police torture and beating — a claim deemed inconclusive by the ACJM after observing the petitioner's legs. In a second complaint by the petitioner, he asked for the production of the CCTV footage from the police station, which was conveniently absent.

Restrictions upon Unbridled Arrests

All these facts point to an extensive list of flagrant violations of the safeguards enshrined in our criminal procedure. Recently in February 2024, the Hon'ble Apex Court in Lalit Chaturvedi vs. State of Uttar Pradeshreiterated that police should only investigate criminal activities. The police does not possess “the power and authority to recover money or act as a civil court for recovery of money”. The 2009 Criminal Law Amendment brought the landmark provision namely Section 41A to the CrPC to ensure that accused/witness comply with police directions for appearance voluntarily rather than subjecting them to unnecessary arrest or police remand. Perhaps as a response to the concerns with respect to some problematic changes in the new remand procedure in 167 CrPC or 187 of Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS), there has also been the addition of an important safeguard in the bail process under the new law. As per the modification to a proviso to Section 480 BNSS or 437 CrPC, bail cannot be refused merely because “police custody beyond the first fifteen days” is requested.

The centrality of issuing 41A notice instead of wanton arrests has been emphasised in the landmark SC verdict of Arnesh Kumar vs. State of Bihar in 2014. As per the Court, if the accused has complied with the same, he cannot be arrested unless such arrest by reasons to be recorded becomes necessary. Perhaps, keeping the same importance in mind, the new law of BNSS under Section 35 has rightfully merged the erstwhile CrPC Section 41A with Section 41 (outlining the conditions where police may arrest without a warrant). However, despite there being no evidence on record that the petitioner was uncooperative, Section 41A was misused as a prelude to seek police remand. It should be kept in mind that arrest is not synonymous with investigation. In the landmark 1980 SC case of Khatri vs. State of Bihar or the Bhagalpur Jail Blinding Case, the court came down heavily upon the magisterial notion of “mechanically” signing the remand orders.

Even here, despite the request made by police for grant of remand, or the petitioners averments regarding the torture, the role played by the ACJM was highly condemnable as she failed to discharge her duties. Furthermore, the petitioner was kept in illegal police custody for a period of almost 48 hours after having secured bail. These duties of a magistrate are not derived just from judicial verdicts or statutes; they also comprise an important Constitutional guarantee under Articles 22(2) and 21.

On the allegation of torture in police custody, the standard procedure should have been to send the accused for medical examination by a doctor and not self-examination by the judge herself. In fact, recognising the importance of this medical examination, the new law under Section 53 of BNSS has added another proviso to the corresponding Section 54 of CrPC. As per this newly added proviso, even multiple medical examinations can be done if it is necessary in the views of the concerned doctor. Many such safeguards vis-à-vis arrest, including periodic medical examination, were prescribed by SC in the landmark 1996 verdict of D.K. Basu vs. State of West Bengal. It was a concerted effort to ensure that the menace of custodial violence is kept at bay. To the government's credit, almost all such safeguards were given a legislative weight by their addition to the CrPC and their further fortification in BNSS. In fact, in 2020 SC verdict of Paramvir Singh Saini vs. Baljit Singh, the Court reemphasised the importance of the D.K. Basu guidelines and supplemented the same with a direction for installation of CCTV cameras in all police stations. But the non-availability of footage on a pretext of faulty cameras is highly problematic and violates the spirit of the court directions.

Humanising Criminal Justice

Human dignity is the foundation of human rights. Dignity jurisprudence is slowly moving forward in Constitutional law discourse and this shift in the paradigm could be seen in India and abroad. Justice Gavai's decision can be seen as one step forward in this direction interpreting human dignity as an important constitutional value and right. It is commendable that over the years the courts particularly the Apex Court has stood as a bulwark against the violation of rights and our legislature has incorporated many such safeguards in both CrPC and BNSS. But, unless each foot solider of our criminal justice system, be it a prosecutor or a judge or police official truly imbibes such constitutional and statutory safeguards, such sporadic court interventions can only go so far. One can't ignore the fact that such a blatant miscarriage of justice could be highlighted only because the petitioner was an affluent businessman from Surat who could afford multiple rounds of litigation. As Justice V.R. Krishna Iyer in Moti Ram vs. State of M.P. presciently remarked that our Constitution “is meant for the butcher, the baker and the candle-stick maker-shall we add, the bonded labour and pavement dweller.”

Prof. Srikrishna Deva Rao is the Vice Chancellor of NALSAR University of Law, Hyderabad . Sunishth Goyal is an Assistant Professor at NALSAR University of Law, Hyderabad. Views are personal.