By: Kapil Devnani and Ashutosh Kumar
“I would like to be remembered as a person who wanted to be free and wanted other people to be also free.” This famous quote by Rosa Parks presents the true value of the Right to liberty, and it would not be wrong to say that the framers of the Indian Constitution also understood the value of this right and the fact could be confirmed by the presence of the Right to Freedom (Article 19 to 22) in the Indian Constitution.
Recently, the Apex Court while emphasizing the importance of liberty in Siddharth v. The State of Uttar Pradesh & Anr. stated that “merely because an arrest can be made because it is lawful does not mandate that arrest must be made.” The Court further stated that in case the investigating officer believes that the accused will not abscond or disobey the summons, then until and unless he has been charged for a heinous crime, the officer is not compelled to arrest him during the investigation. Soon, after this judgement was passed, the debate regarding its soundness began. Various scholars and jurists supported this point of view, while others criticised it. The authors of the blog belong to the former category and will provide certain contentions to prove their perspectives.
The case of Siddharth v. The State of Uttar Pradesh & Anr.
The appellant was roped in a FIR which was filed seven years ago and he was granted interim protection until the filing of the police report. The appellant joined the investigation and the charge sheet was ready to be filed.
Section 170 of the (CrPC) which provides that, if after investigation the officer in charge is of the opinion that there are reasonable grounds to believe that the accused has committed the crime then the accused is to be forwarded to the Magistrate who is empowered to take cognizance for trial upon a police report from such officer.
But, the trial court, in this case, interpreted Section 170 to mean that until the accused is taken into custody the charge sheet cannot be taken into the record. Thus, the accused had to apply for anticipatory bail which was rejected and the arrest memo was issued. Prompting the appellants to approach the Supreme Court
Observation by the Court:
After referring to various cases from different High Courts, The Supreme Court concluded that the purpose of section 170 was only to ensure the presence of the accused when the charge sheet is filed.
The SC observed that the Delhi High Court in The Court in its Motion v. CBI dealt with a similar contention that Section 170 of CRPC prevents the Court from taking the charge-sheet into the record until the accused is in custody. The High Court observed that the trial court was under the wrong impression that an arrest is invariably made in every non-bailable and cognizable offence, the court observed the law rather is otherwise and the police shall avoid arrest if the accused is cooperating with the investigation and creating no hindrances as personal liberty is an important element of constitutional mandate. It further observed that the arrest may be made if the offence is grave and the officer-in-charge believes that there is a possibility of the accused absconding or if the investigation cannot be completed without the arrest of the accused.
The SC further discussed the Gujarat High Court judgement in Deendayal Kishanchand & Ors. v. State of Gujarat where the HC had observed that not accepting the charge sheet without the production of the accused is not justified under any provision of law. The High Court further noted that accepting the charge sheet in time becomes expedient in the light of Section 468 of CrPC which bars Courts from taking cognizance of certain minor offences after the specified limitation period has passed.
The Supreme Court noted that the word “custody” in section 170 doesn’t imply Police or Judicial custody but, merely means presenting the accused before the court at the time when the charge sheet is filed.
Analysis and Conclusion:
The right to liberty has been placed at a very high pedestal by the Indian Constitution and it shall not be tinkered with unless it’s indispensable, the importance of the same has been highlighted by Hon’ble Supreme Court in Nandini Satpathy v. P.L. Dani where it pointed at creating a balance between the needs of law enforcement. According to the Court, the protection of an individual from injustice and oppression has been a perennial problem and with time the pendulum seems to have swung in the favour of law enforcement. Further, the Supreme Court in Nandini Satpathy vs Dani (P.L.) went to the extent of saying that there “exists a rivalry between societal interest in effecting crime detection and constitutional rights which accused individuals possess”. Further, the Supreme Court in Joginder Kumar v. State of U.P emphasized the need for a distinction between the power to arrest a person and justification to exercise it because if an arrest is made a routine, it would cause irreparable and incalculable damage to the reputation & self-esteem of such person.
No doubt that the decision of the Apex Court in Siddharth v. The State of Uttar Pradesh & Anr sounds constitutionally valid, but still there remains a loophole. As already stated, in case the investigating officer believes that the accused will not abscond or disobey the summons, he shall not arrest him. So, the power is left in the hands of the investigation officer, it is at his discretion to decide whether the accused will abscond or not. However, National Police Commission in its Third Report expressly mentioned the power of arrest as the fundamental reason behind the corruption of the police department. It was expressly stated in this report that the majority of arrests related to somewhat minor prosecutions and thus, cannot be considered as necessary for the purpose of crime prevention. Moreover, the detention of these arrested persons lead to a heavy expenditure on their maintenance which definitely could be avoided. It was further stated that out of the total expenditure in the connected jails, 43.2% was over such prisoners who need not have been arrested at all.
Whether this discretionary power that relates to the curtailment of one of the most vital human rights, in the hands of the police department sounds good after referring to this report of the National Police Commission? Absolutely not. So, at last, it could be concluded that the Apex Court in Siddharth’s case tried to accentuate the Right to liberty from the point of view of arrest and detention, and got somewhat successful in that. However, while doing so it provided some incredible discretionary power to the police, which should be pointed out as a matter of concern as the stats showing the outlook of the police department regarding the matter is not virtuous at all.
[Kapil Devnani and Ashutosh Kumar are third year law student at Hidayatullah National Law University, Raipur]