Personal Liberty- Merely Because An Arrest Can Be Made Lawfully, It Does Not Mandate That Arrest Must Be Made : Supreme Court

Merely because an arrest can be made because it is lawful does not mandate that arrest must be made, the Supreme Court recently observed.

The bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy observed that personal liberty is an important aspect of our constitutional mandate.

In this case, the appellant along with 83 other private persons were sought to be roped in a FIR which was registered seven years ago. Before the court, he submitted that he had already joined the investigation and the chargesheet was stated to be ready to be filed. As the arrest memo was issued, he filed anticipatory bail application before the High Court which was dismissed and thus he approached the Apex Court in appeal.

The bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy observed that the trial court, in this case has taken a view that unless the person is taken into custody the chargesheet will not be taken on record in view of Section 170 of  the Code of Criminal Procedure. On this aspect, it held that Section 170 of the Cr.P.C. does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the charge sheet.

"We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made.', the court said.

The court said that a distinction must be made between the existence of the power to arrest and the justification for exercise of it. "If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.", the court said.

"We are, in fact, faced with a situation where contrary to the observations in Joginder Kumar's case how a police officer has to deal with a scenario of arrest, the trial courts are stated to be insisting on the arrest of an accused as a pre-requisite formality to take the chargesheet on record in view of the provisions of Section 170 of the Cr.P.C. We consider such a course misplaced and contrary to the very intent of Section 170 of the Cr.P.C.", the bench said while allowing his appeal. 

Joginder Kumar v. State of UP 

The bench, in this case,  referred to the observations made in Joginder Kumar v. State of UP & Ors. (1994) 4 SCC 260. In the said case, a lawyer, who was kept under police custody, had approached the Apex court by filing a writ petition. It was observed thus in the said case: "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 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 court had also issued the following guidelines:

1.  An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
2. The police officer shall inform the arrested person when he is brought to the police station of this right. 3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly. It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.
3. The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various police manuals.
4. These requirements are not exhaustive. The Directors General of Police of all the States in India shall issue necessary instructions requiring due observance of these requirements. In addition, departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest.