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THE DISCRETION TO ARREST WITH POLICE – A PERSPECTIVE FROM THE EXPERIENCES OF A PRACTISING LAWYER

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The discretion to arrest and put an accused behind bars in an offence which is cognizable and non – bailable, is possibly the most powerful right which the Code of Criminal Procedure, 1973 gives to police officers. The rationale behind giving such power to a police officer is that during the course of investigation, the accused should not interfere with the process of a fair and independent investigation. The custody of the accused with the police also aids the police in reconstructing the crime scene and make recoveries of the material which may have been involved in committing the offence. Furthermore, by way of arrest, the accused is incapacitated from committing any other offence during the period of investigation. However, the question remains as to whether “arrest” is the only way in which the above-mentioned objectives can be attained during the pendency of an investigation, or, should the police trust the alleged accused persons that they shall themselves co – operate in aiding the investigation and not disturb the investigation process by influencing potential witnesses etc.

The reporting of a crime can be done by any person who may or may not be a victim of that crime. If the local police station finds prima facie truth in the allegations of the complainant, an FIR (First Information Report) is lodged. The SHO (Station House Officer) deputes an IO (Investigating Officer) to every FIR who then goes on to investigate the alleged offence under the said FIR. It is this IO who has the power and discretion to arrest the accused who has been alleged of committing the crime. The jurisprudence on the powers and discretion of the IO to arrest the accused has evolved over a period of time.

The experience of the courts, more particularly the Hon`ble Supreme Court has not been very pleasant in so far as the use of this power to arrest by the IOs is concerned. The Hon`ble Supreme Court has time and again deprecated the practice adopted by the police where they make arrests in cases where the offence is either not very heinous or prima facie not made out from the allegations made in the criminal complaint. It cannot be denied that the enormous discretion given to the police officers has also led to massive corruption and abuse of this discretion by the police officers. It is common knowledge that a lot of investigating officers demand bribe / other favors from the accused to not arrest them post the lodging of the FIR. Interestingly, it is again known to everyone that many investigating officers also demand bribe/other favors from the complainant to make an arrest of the alleged accused. This is especially common in white collar crimes like cheating, forgery, criminal breach of trust etc. wherein the complainant is confident that an arrest of the accused will lead to a settlement of the matter between the parties thereby providing the complainant with the money/articles/goods which has been alleged to have been cheated or siphoned off by the accused.

COGNIZABLE OFFENCES CARRYING SEVEN OR LESS THAN SEVEN YEARS OF IMPRISONMENT

Section 41 of the Code of Criminal Procedure, 1973 is the principal section which governs the powers of the police officer to make an arrest of an accused person wherein the allegation is that a cognizable has been committed by the accused person. Section 41(1)(a) as amended in 2009 provides that any police officer may make an arrest without a warrant if the accused has committed a cognizable offence in the presence of a police officer. Whether or not an offence is cognizable or non – cognizable can be easily discerned by any person from Schedule I annexed to the Code of Criminal Procedure, 1973. Section 41(1)(b) is bifurcated into two parts i.e. arrests made in cases where the alleged cognizable offence carries seven or less than seven years of imprisonment and arrests made in cases where the alleged cognizable offence carries more than seven years of imprisonment. Through the 2009 amendment, the legislature has circumscribed the discretion of the investigating officers to make arrests in cases where the alleged cognizable offence carries seven or less than seven years of imprisonment. Section 41(1)(b) clearly provides that in such cases where the cognizable offence carries seven or less than seven years of imprisonment, a police officer can make an arrest without warrant only if the following conditions are satisfied:

(i) the police officer has “reason to believe” on the basis of such complaint/information that such person has committed the said offence

(ii) the police officer is satisfied that such arrest is necessary—

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured.

The police officer is also mandated under law to write his reasons in the case diary as to why he/she feels that the above-mentioned criterions are being fulfilled in the case and hence arrest is being effected. Furthermore, Section 41A provides that in all cases where the police officer has after applying the criterions prescribed under Section 41(1)(b) decided that the arrest is not required, he/ she shall issue notice of appearance under Section 41A to the accused so that the accused can join the investigation and provide answers to the questions raised by the police officer.

My experience in handling criminal investigations on behalf of the accused in the past nine years tells me that rarely are the above-mentioned criterions prescribed under Section 41(1)(b) are followed in cases where the alleged offence carries a punishment of less than seven years. It is important to be noted that Section 41(1)(b) merely circumscribes the discretion of the police officer in arresting the accused for alleged cognizable offences which carry a punishment of seven or less than seven years. The discretion while circumscribed and guided through this provision does not completely take away the powers of the police officer to arrest an accused under this category of cases. The Supreme Court and other High Courts of our country have time and again reminded the investigating officers and police force of our country to apply their mind before making arrests in offences which carry a sentence of seven or less than seven years [See Arnesh Kumar v. State of Bihar, Criminal Appeal No. 1277 of 2014 (Supreme Court); Rajesh Sharma v. State of UP, AIR 2007 SC 3869]. But, from a more practical perspective, any practicing criminal lawyer of our country would confirm that the investigating officer rarely follows the mandate of Section 41(1)(b) in a meticulous manner.

The power/discretion to arrest or not to arrest as provided by the Code of Criminal Procedure, 1973 has often resulted in its abuse by the police officer. Arrest in India or for that matter any society across the world carries with it extremely strong prejudice and stigma. Even a single day of arrest can potentially demoralize and stigmatize a respectable individual of our society for his / her entire life. Hence, this power which lies with the investigating officers is expected to be used with utmost caution and by following the mandate of the law in the strictest sense. The criminal justice system in India is far from being ideal today in the present situation as it exists in 2021. Time and again it is seen by the stakeholders of the criminal justice system that the police officers abuse this discretion by taking bribe/favors from the complainant or the accused. The higher the stakes involved under the lodged FIR, the higher would be the involved corruption. The alleged accused also wants to indulge in the act of corruption because he / she feels that if they get arrested then they will be going through the ordeal of being in prison and also would have to eventually pay up to the defence lawyers for securing a bail for them. Hence, simply bribing the police officer and preventing any possible arrest may end up being a more feasible option. It will be important for me to caveat here that while abuse of arrest powers by police officers is common, there are independent and honest police officers who conduct absolutely neutral and impartial investigation on the basis of the merits of the case.

COGNIZABLE OFFENCES CARRYING MORE THAN SEVEN YEARS OF IMPRISONMENT

Section 41(ba) of the Code of Criminal Procedure, 1973 applies to all cases where the alleged offence carries more than seven years of imprisonment. This provision is much less complicated and fairly straightforward as it provides relatively less discretion to the investigating officer while making arrests in cognizable offences which carry more than seven years of imprisonment. The provision does not provide too many yardsticks on the basis of which an investigating officer can evaluate whether or not to make an arrest.

This provision simply says that any police officer may make an arrest where the police officer has received credible information that the accused has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years and the police officer has reason to believe on the basis of that information that such person has committed the said offence. Hence, a bare perusal of the provision shall highlight that once the police officer is convinced on a prima facie basis that the accused has committed the offence, the police officer will be well within his/her rights to make an arrest of the accused. Having said this, it is most definitely not a matter of practice that in

all cases where the alleged cognizable offence carries more than seven years of sentence would the police officer arrest the accused. The police officer in a lot of cases refuses to exercise its power to arrest (and rightfully so) when he / she feels that the criminal complaint on the basis of which the FIR is lodged is false and devoid of merits. Furthermore, in cases like recovery of money, alleged forgery, alleged cheating etc. where the dispute has a civil flavor, the police officers are careful before making any arrests even while the offences may carry a sentence of more than seven years. Needless to mention, that since this provision also provides discretion to the police officers, it has been time and again misused for securing illegal favors / bribe by the police officers.

The law regulating arrests is still in developing stages in India. There is a lot more that needs to be done in order to ensure that no wrongful arrests may take place or no alleged accused may go without being arrested simply because of the whims and fancies of the police officers. The situation can improve in 2 ways. Firstly, the police officers should start applying the mandate of law in a stricter manner wherein they actually adhere to the check list provided under Section 41(1)(b) before making an arrest in all cases where the offence carries a sentence of seven or less than seven years. Secondly, the legislature or the Hon`ble Supreme Court may prescribe certain cases (of less heinous nature) where the discretion is completely removed thereby giving certainty to citizens of our country and reducing the powers of police officers. Any change made in the law would have to examined while keeping in mind the delicate balance between providing right of personal liberty to individuals and right of life in a peaceful and crime free society of the public at large.

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IMPORTANCE OF THE STATEMENT OF ACCUSED UNDER SECTION 313 OF THE CRPC – A VIEW FROM THE EYES OF A DEFENCE COUNSEL

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This article is being written with the purpose of highlighting the importance of the stage of the Statement of Accused during the course of a Criminal Trial. The article shall begin by placing the stage of the Statement of Accused in a chronological context of the Criminal Trial. Subsequently, the article shall reproduce and dissect the provision threadbare to explain the key legislative features of the same. Lastly, the article shall highlight the important judicial pronouncements of the Hon`ble Supreme Court / High Court on this Section which has a day to day bearing in the interpretation and applicability of this Section.

A typical Criminal Investigation is commenced with the lodging of the First Information Report (FIR) under Section 154 of the Code of Criminal Procedure, 1908 (CrPC). An Investigating Officer is deputed by the Police Station at which the FIR is lodged. The Investigating Officer conducts the investigation during the course of which he / she collects statements of material witnesses, incriminating material etc and inevitably in most cases files a Charge sheet before a competent Court of Law under Section 173(8) of the CrPC. This Charge sheet is taken Cognizance upon by a competent Magistrate having appropriate territorial jurisdiction under Section 190 (b) of the CrPC. The criminal proceedings post taking of cognizance is then tried by the Magistrate or committed to a competent Sessions Court depending on the nature of the offence. The Charge is framed by the concerned Court and trial is commenced. The Prosecution Evidence is led by the Prosecutor during which all the material witnesses are introduced, examined in chief, cross examined etc. and discharged. The Prosecution exhibits material documents and seized material during the Prosecution evidence.

It is at this stage that the application of Section 313 of the CrPC comes into play. It will be apposite for me to reproduce the bare text of the Section here to explain the legislative text of this section:

Section 313 – Power to examine the accused

(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court—
(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;
(b) shall after the witnesses for the prosecution have been examined and before he is called on for his defence question him generally on the case:
Provided that in a summons-case where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under subsection (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such question, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he had committed.
(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.

A bare reading of Section 313(1)(b) as mentioned above shall highlight the mandate of law that the accused person is to be examined by the Trial Court for the purpose of enabling the accused personally to explain any circumstances appearing in evidence against him. This stage “shall” come after the witnesses for the prosecution have been examined and before the accused is called on for his defence evidence. Both the text of the section and practice of Criminal Law confirms that the statement of the accused is taken post the recording of the entire Prosecution Evidence. This enables the Trial Court to put all the incriminating material before the accused person (usually by way of detailed questions prepared by the Trial Court) and seek his explanation and answers on the same.

The Supreme Court in Tara Singh v. State2 held that the Trial Court has the duty to state all the circumstances and evidence against the accused under Section 342 (corresponding provision in the Codeof Criminal Procedure, 1898) for enabling the accused to explain such circumstances and evidence. The Court further held that that if the accused has given reasonable explanations, the same must be taken into consideration by the Trial Court- the failure of which would constitute a grave defect in the judgment. In Hate Singh v. State of Madhya Bharat,  the Court observed, “The statements of the accused recorded by the committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state on his own way in the witness box [and that] they have to be received in evidence and treated as evidence and be duly considered at the trial.” In Shivaji SahabraoBobade v. State of Maharashtra, the Court reiterated that every inculpatory evidentiary material must be put to the accused for his explanation, and “the court must ordinarily eschew such material from consideration” which has not been put to the accused. The Court further held an omission to put such material to the accused does not ipso facto vitiate the proceedings unless the accused is able to establish that he has been prejudiced by such omission. Similar conclusion was drawn by the Court in S. Harnam Singh v. State (Delhi Admin) in which it was also observed that if an irregularity under Section 342 does not occasion a failure of justice, the same is curable.

The Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra transported the principle- circumstances which are not put to the accused under Section 342 of the Code of Criminal Procedure, 1898 cannot be taken into consideration by the Court- to Section 313 of the Code of Criminal Procedure, 1973. The erudite observation of the Court in Ajay Singh v. State of Maharashtra needs to reproduced, as follows:

The word “generally” in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused’s failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.

 The above reproduced observation was followed and quoted with approval in Shaikh Maqsood v. State of Maharashtra and Ranvir Yadav v. State of Bihar. Further, in Asraf Ali v. State of Assam, it was observed that the main object of Section 313 is to establish a direct dialogue between the Court and the accused. In Sujit Biswas v. State of Assam, the Court observed that Section 313 is founded on one of the principles of natural justice i.e. audi alteram partem. The Court also observed that Section 313 is of heightened relevance in a case circumstantial evidence so as to establish if the chain of circumstances is complete or not. It was further observed that the statement under Section 313 “cannot be treated as evidence within the meaning of Section 3 of the Evidence Act, as the accused cannot be cross-examined with reference to such statement.” Even recently in Samuel Hasque v. State of Assam, the Court observed, “It is trite to say that…the incriminating material is to be put to the accused so the accused gets a fair chance to defend himself. This is in recognition of the principles of audi alteram partem.”

Interestingly, Section 313(2) also very clearly prescribes that no oath shall be examined to the accused person when he / she is being examined under Section 313(1) by the Court. This provision is clearly by way of abundant caution in order to fulfil the fundamental right enshrined under Article 20(3) of the Constitution of India. Some of the instances in which this clause has been interpreted is as follows

As a matter of defence strategy, in my opinion, it is best to answer specifically as many questions as maybe possible under Section 313 of the CrPC. Needless to mention that the accused does have a right to remain silent and hence, he or she can simply deny or leave unexplained any particular question raised under Section 313 of the CrPC. However, this option of avoiding or remaining silent on a specific assertion / material put forth before the accused should be exercised most sparingly. It is trite that nonanswering or evading incriminating material put under Section 313 of the CrPC would only lead to an adverse inference drawn by the Court during the course of the final arguments.

Being situated in Delhi, I have had the good fortune of conducting both criminal trials at Trial Courts and arguing appeals before the Supreme Court. On many occasions while watching appellate proceedings in post leave matters at the Supreme Court, I have observed that their honors lay a lot of emphasis on what has been said by the accused in the statement under Section 313. Infact, without naming a particular Chief Justice of India, I distinctly remember that given the paucity of time he and his bench had, the Court was simply dismissing or allowing appeals against convictions by asking the counsel as to what was said by the accused under his Section 313 statement.

Therefore, as defense counsels, we should all be very careful in conducting this stage of our trial. If our client is custody then it would be advisable to meet him / her and explain him / her about the process and the possible questions which would be ask from him / her during the statement under this Section. The amended Section 313(5) also now allows for the filing of a Written Statement before the court under this Section. However, in practice, it is best to simply follow what the judges want you to do and if the judge is insisting on an oral statement under this section (which most judges do) then it is best oblige them.

There would be many criminal trials which would be won or lost on the basis of how well could the accused defend against the incriminating material in his / her statement under Section 313. Hence, as defence counsels, it becomes our primary duty to ensure that the preparation of the accused is comprehensive before the date of hearing on which the statement of the accused is to be recorded.

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