POLICE POWERS TO ARREST
Recently, the CBI arrested Mr. B. K. Bansal, Director General in the Ministry of Corporate Affairs for allegedly accepting bribe money from a pharmaceutical company. A day after the arrest, his wife and daughter committed suicide because they were not able to bear the ignominy resulting from the incident.
The court, while granting bail to Bansal, raised a very important question. Was it necessary to arrest him in the case?
The CBI has explained that the arrest of Mr. Bansal was according to law. Of course, it was according to law. The CBI has powers under the law to arrest the accused in such cases. But power to arrest is one thing; justification to do so is another.
An answer to the question raised by the court is necessary not because two innocent lives were unnecessarily lost, but because it raises some important concerns. The discussion on this issue needs to go beyond Mr Bansal’s case to include an analysis of police powers of arrest and the indiscriminate way these powers are used.
The police arrest a large number of people in their day-to-day work. According to the Crime In India, they arrested 85, 95,194 persons under the Indian Penal Code and the local and special laws during 2014.
To what extent are the arrests made by the police justified? This issue has been examined on various occasions. For example, the National Police Commission in its Third Report (January 1980) observed that a large number of arrests made by the police were not only unnecessary from the point of view of controlling crime, but needlessly imposed avoidable burden on the state exchequer in the form of expenditure on harbouring and maintaining the arrested persons in jails. The Commission estimated that 43.2% of the jail expenditure was incurred on prisoners who “need not have been arrested at all.”
A study conducted by the Law Commission of India on the basis of empirical data collected from different states in India confirmed these findings. It showed that the number of preventive arrests and arrests for petty offences was substantially large; the percentage of under trial prisoners was unusually high and most of them were there because they were not able to post bail or furnish sureties. The Law Commission recommended that the police should not be allowed to arrest people involved in certain categories of offences.
The Supreme Court of India in its judgment of Arnesh Kumar vs. State of Bihar and Others Laid down the principles for making arrest and detention under the Code of Criminal Procedure. It held that no arrest should be made in a routine, casual and high-handed manner
Both the National Police Commission and the Supreme Court in its judgments have prescribed the circumstances in which an arrest may be justified. Broadly, the list says that an arrest may be justified :
•in a heinous crime like murder, robbery, rape etc where it is necessary to restraint the movement of the accused to “infuse confidence among the terror stricken victims;” or
•to prevent the accused from absconding and evading the processes of law; or
•to prevent destruction of or tampering with evidence by the accused; or
•to prevent such person from committing any further offence; or
•to ensure presence of the accused in the court; or
•where arrest is necessary for proper investigation of the case.
Most of the above circumstances mentioned cannot be applied convincingly to Mr. Bansal’s case. The offence allegedly committed by Mr Bansal falls in the category of white collar crime where the evidence to be collected by the investigating agency is mostly documentary in nature. In such cases, the investigating officers can carry out their investigation without arresting the offenders.
While the CBI Manual wants the investigating officers to be cautious in arresting accused, the Manual suggests extra care to be taken while affecting the arrest of a public servant. Paragraph 12.4 of the chapter 12 of the Manual says: “Public servants should be placed under arrest only when it becomes necessary to do so in the interest of investigation or to satisfy the requirements of law or to prevent the accused from absconding or after a decision has been taken to launch a prosecution and necessary sanction for it has been obtained.”. None of the eventualities mentioned in this paragraph seemed to have arisen in the case of Mr Bansal. He was a public servant with a high position in the government service and could not have been expected to run away.
The arrest of Mr Bansal becomes particularly unnecessary in view of the amended law of arrest as embodied in Section 41 A of the Cr PC. According to this Section of law, in cases where an arrest is not considered necessary, the police officer can require the accused person to appear for investigation by issuing a notice to him. It is mandatory for the accused to comply with the terms of the notice. In case of failure to comply, it is lawful for the police officer to arrest him. Mr. Bansal’s examination could have been done by summoning him, whenever needed.
In Mr. Bansal’s case, the court asked the CBI to “rethink” if the arrest was necessary. Actually, all police forces should rethink before making arrests.
