Democracy can never be a police state: Supreme Court SC had issued guidelines to curb unnecessary Arrest and Remand; CJI had also lamented hasty arrests, difficulty in obtaining bail, and prolonged incarceration of undertrials
22, Jul 2022 | CJP Team
On Saturday, July 16, 2022, the Chief Justice of India NV Ramana delivered an address at the 18th All India Legal Service Authorities Meet at Jaipur and laid emphasis on hasty indiscriminate arrests and difficulty in obtaining bail, reported LiveLaw. According to him, the process which led to prolonged incarceration of undertrials needed urgent attention.
“In our criminal justice system, the process is the punishment. From hasty indiscriminate arrests, to difficulty in obtaining bail, the process leading to the prolonged incarceration of undertrials needs urgent attention,” the CJI reportedly said.
CJI Ramana who was speaking at the two-day conference organised by the National Legal Services Authority (NALSA), further said, “We need a holistic plan of action, to increase the efficiency of the administration of criminal justice. Training and sensitization of the police and modernization of the prison system is one facet of improving the administration of criminal justice. NALSA and legal service authorities need to focus on the above issues to determine how best they can help.”
Highlighting the statistics of prisons and prisoners in our country and their vulnerability in society, he reportedly said, “In India we have 6.1 lakh prisoners in 1,378 prisons. 80% of them are undertrials. They are indeed one of the most vulnerable sections of our society. Prisons are black boxes. Prisoners are often unseen, unheard citizens. Prisons have different impacts on different categories of prisoners, particularly those belonging to marginalised communities. A grave issue affecting our criminal justice system is the high population of undertrials in our prisons. Out of 6.10 lakhs prisoners in India, around 80% are under trial prisoners.”
Supreme Court on Arrest and Remand
A week ago, in a landmark judgment in the case of Satender Kumar Antil vs. Central Bureau of Investigation, a Supreme Court bench comprising Justices Sanjay Kishan Kaul and MM Sundersh, took note of the prevailing situation in India where jails are flooded with undertrial prisoners.
The judgment quotes John E.E.D. from “Essays on Freedom and Power”:
Liberty is one of the most essential requirements of the modern man. It is said to be the delicate fruit of a mature civilization. It is the very quintessence of civilized existence and essential requirement of a modern man”
The Court stressed upon the rule “bail over jail” and issued guidelines to prevent unnecessary arrest and remand.
At the outset, the judgment read, “Jails in India are flooded with undertrial prisoners. The statistics placed before us would indicate that more than 2/3rd of the inmates of the prisons constitute undertrial prisoners. Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less. They are not only poor and illiterate but also would include women. Thus, there is a culture of offense being inherited by many of them. As observed by this Court, it certainly exhibits the mindset, a vestige of colonial India, on the part of the Investigating Agency, notwithstanding the fact arrest is a draconian measure resulting in curtailment of liberty, and thus to be used sparingly. In a democracy, there can never be an impression that it is a police State as both are conceptually opposite to each other.”
Bail is the Rule
The principle that bail is the rule and jail is the exception has been well recognised through the repetitive pronouncements of this Court. This again is on the touchstone of Article 21 of the Constitution of India.
Presumption of Innocence
It has been the consistent stand of the courts, including the Supreme Court, that presumption of innocence, being a facet of Article 21, shall inure to the benefit of the accused. As a result, the burden is placed on the prosecution to prove the charges to the court of law. The weightage of the evidence has to be assessed on the principle of beyond reasonable doubt.
It said, “Innocence of a person accused of an offense is presumed through a legal fiction, placing the onus on the prosecution to prove the guilt before the Court. Thus, it is for that agency to satisfy the Court that the arrest made was warranted and enlargement on bail is to be denied.”
Role of the Court
The Court noted, “The rate of conviction in criminal cases in India is abysmally low. It appears to us that this factor weighs on the mind of the Court while deciding the bail applications in a negative sense. Courts tend to think that the possibility of a conviction being nearer to rarity, bail applications will have to be decided strictly, contrary to legal principles. We cannot mix up consideration of a bail application, which is not punitive in nature with that of a possible adjudication by way of trial. On the contrary, an ultimate acquittal with continued custody would be a case of grave injustice.”
It further held, “Criminal courts in general with the trial court in particular are the guardian angels of liberty. Liberty, as embedded in the Code, has to be preserved, protected, and enforced by the Criminal Courts. Any conscious failure by the Criminal Courts would constitute an affront to liberty. It is the pious duty of the Criminal Court to zealously guard and keep a consistent vision in safeguarding the constitutional values and ethos. A criminal court must uphold the constitutional thrust with responsibility mandated on them by acting akin to a high priest.”
Section 41 and 41A of the Criminal Procedure Code (the Code)
The Court observed that any non-compliance of Section 41 (When police may arrest without warrant) and 41A (Notice of appearance before police officer) of the Code at the time of arrest would entitle the accused for grant of bail. The bench observed that Section 41 and 41A are facets of Article 21 of the Constitution of India.
It said, “The consequence of non-compliance with Section 41 shall certainly inure to the benefit of the person suspected of the offense. Resultantly, while considering the application for enlargement on bail, courts will have to satisfy themselves on the due compliance of this provision. Any non-compliance would entitle the accused to a grant of bail.”
The Court cited the case of Arnesh Kumar vs. State of Bihar (2014) 8 SCC 273, where it interpreted Section 41(1)(b)(i) and (ii) inter alia holding that notwithstanding the existence of a reason to believe qua a police officer, the satisfaction for the need to arrest shall also be present.
“Thus, sub-clause (1)(b)(i) of Section 41 has to be read along with sub-clause (ii) and therefore both the elements of ‘reason to believe’ and ‘satisfaction qua an arrest’ are mandated and accordingly are to be recorded by the police officer.”
Further, the Court directed all the State Governments and the Union Territories to facilitate standing orders while taking note of the standing order issued by the Delhi Police i.e., Standing Order No. 109 of 2020, to comply with the mandate of Section 41A. In the Court’s opinion, “this would certainly take care of not only the unwarranted arrests, but also the clogging of bail applications before various Courts as they may not even be required for the offences up to seven years.”
The judgment then spoke about how the Courts must come down heavily on the officers effecting arrest without due compliance of Section 41 and 41A of the Code. The bench observed, “We express our hope that the Investigating Agencies would keep in mind the law laid down in Arnesh Kumar (Supra), the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance. Our view is also reflected by the interpretation of the specific provision under Section 60A of the Code which warrants the officer concerned to make the arrest strictly in accordance with the Code.”
Directions issued by the Court
The Court issued the following directions meant for the investigating agencies and also for the courts:
- The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails.
- The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (2014) 8 SCC 273. Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.
- The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail.
- All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of 2020, to comply with the mandate of Section 41A of the Code.
- There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code.
- There needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth (2021) 1 SCC 676.
- The State and Central Governments will have to comply with the directions issued by this Court from time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.
- The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release.
- While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind.
- An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh (2015) 13 SCC 605, followed by appropriate orders.
- Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.
- All State Governments, Union Territories and High Courts are directed to file affidavits/ status reports within a period of four months.
A copy of the judgment may be read here:
In the case of M.C. Abraham vs. the State of Maharashtra, the Supreme Court of India held that as the power to arrest is discretionary, the police officer is not always bound to arrest an accused, even if the allegation against him is of having committed a cognizable offence. The court also held that as arrest is an encroachment on the personal liberty of a person and affects his status and reputation, the power to arrest has to be exercised with caution and circumspection.
In the case of Jagdish Shrivastav vs. the State of Maharashtra & Anr., the Supreme Court deprecated the practice of the Police Officer in overstepping and arresting the accused even after they approached the Apex Court against rejection of the anticipatory bail application by the high court and without serving notice under Section 41(A) CrPC as per the judgment of the Court in Arnesh Kumar vs. State of Bihar & Anr. (2014) 8 SCC 273.
Judicial Precedents (High Courts)
In the case of Arshad vs. State of Uttar Pradesh, the Allahabad High Court while granting anticipatory bail in a matrimonial dispute held, “Irrational and indiscriminate arrests are gross violation of human rights and arrest should be the last option for the police.”
In another case of Allahabad High Court in Joginder Kumar v. the State of UP, the Supreme Court dealt with the power of arrest and its exercise. In its judgment, it held that no arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. A police officer cannot arrest a person just because it is lawful for him to do so as arrest and detention in police lock-up can cause incalculable harm to the reputation and self-esteem of a person. The Court observed that it is both, in the interest of protection of constitutional rights and of the police officer himself, that no arrest should be made unless the police officer is reasonably satisfied after some investigation that the complaint is genuine and bonafide. The opinion of the Officer effecting the arrest must be based on some reasonable justification that such arrest is necessary and justified. Except in case of heinous crimes, an arrest must be avoided where a police officer has issued a notice to the person to attend the Station House and that he is not to leave the station without permission.
In the case of A. Kaluram v. The State of Telangana (2022) SCC OnLine TS 1135, the Telangana High Court disposed a criminal petition filed seeking anticipatory bail in crimes under IPC Section 354B (Assault or use of criminal force to woman with intent to disrobe) and 506 (punishment for criminal intimidation) on the ground that two out of three accused persons were not served with a notice under Section 41A of the CrPC. The Court directed the Investigating Officer to strictly follow the procedure laid down under Section 41A CrPC and the guidelines issued by the Hon’ble Apex Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 and further directed the Investigating Officer not to arrest the petitioner till the completion of investigation and filing of final report.
In another case of Telangana High Court in V. Bharath Kumar v. State of Telangana, the court held, “Any deviation in this regard (procedure under Section 41A CrPC and Arnesh Kumar Guidelines) will be viewed very seriously. If the petitioner is aggrieved by the action of the police in not following the procedure contemplated under Section 41-A Cr.P.C. and resorting to other means and measures by threatening him to compromise the matter, petitioner is at liberty to initiate appropriate proceedings against the officers concerned. It is further directed that having issued notice under Section 41-A Cr.P.C., the police are bound to follow the procedure and the guidelines issued by the Hon’ble Apex Court.”
In the case of Rakesh Kumar v. Vijayanta Arya & Ors, the Delhi High Court sentenced a police officer to 1-day imprisonment for violating the Supreme Court guidelines laid out in the case of Arnesh Kumar. The Court reportedly held, “The requisite notice was not served upon the petitioner. There were mere allegations of criminal breach of trust against the petitioner, which entailed a maximum sentence of three years. It did not warrant the arrest of a person in the manner in which it was done.”
It further stated, “No amount of explanation to the neighbours or those who may have seen the arrest, would undo the embarrassment and indignity suffered by the petitioner and his relatives. Arrest and incarceration destroys a person and collaterally affects many other innocent relatives. Subsequent release or acquittal of an innocent, is of no solace and offers no reparation to the loss of reputation or for the temporary loss of precious personal liberty.”
Further the Court highlighted that the right to personal liberty was granted by the Constitution and could only be curtailed by a procedure established by law. In case this procedure, in the present case that under Section 41A Cr.P.C. is violated, it may not only affect the petitioner but the whole family.
CJI Ramana on bail and political opposition
CJI Ramana in his speech at Jaipur underlined the call by the Court to the centre to consider framing a ‘Bail Act’ to streamline the early release of prisoners. He went on to express his concern at ‘political opposition translating into hostility and the quality of legislative performance’, reported NDTV.
He reportedly said, “Political opposition should not translate into hostility, which we have been sadly witnessing these days. These are not signs of a healthy democracy. There used to be mutual respect between the government and opposition. Unfortunately, space for opposition is diminishing. Sadly, the country is witnessing a decline in the quality of legislative performance as laws are being passed without detailed deliberations and scrutiny.”
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