Arrest or not to arrest is the question

March 9, 2023

Context:

The arrest of the former Delhi Deputy Chief Minister, Manish Sisodia, by the Central Bureau of Investigation (CBI) recently has once again created a debate about the fundamentals of law enforcement.

The two sides:

Arrests involve a grave human rights issue.
An arrest was the only deterrent to dishonesty in public life.
Taking advantage of lacuna, many accused persons, when arrested, knock on the doors of the judiciary immediately after their arrest, seeking court intervention and clemency.
A few judges at the lower echelons are taken in by the emotion-laden arguments of the defence lawyer and grant bail to the accused even when produced for the first time after an arrest.

Procedure of arrest:

The Code of Criminal Procedure 1973 lays down the procedure to effect an arrest.
Section 41 debunks the commonly held belief that a police officer must necessarily obtain a warrant from a magistrate before making an arrest.
Arrests can be made without a warrant provided the officer making it is convinced that there was no time to obtain one and records the reasons in the general diary of the police station or the police branch concerned for not obtaining a warrant prior to the arrest.
The main stipulation of the law and judicially accepted norms are that the officer should not use any force to effect an arrest unless the accused himself chooses to be violent.
There is also the constitutional provision (Article 22) that a detained person should be apprised of the grounds of arrest as soon as possible and be produced before the nearest magistrate within 24 hours (excluding travel time) of taking him into custody.
It is also incumbent on the official concerned to keep the closest relative of the accused informed that the person is in custody at a specified place.

What is not included in the Criminal Procedure Code?

Beyond these safeguards there is nothing in the Criminal Procedure Code that reduces the discretion of the police or law enforcement officials in making an arrest decision.
The investigator enjoys absolute freedom in opting for an arrest.
In the oft-quoted D.K. Basu vs State of West Bengal also, while the top court laid down the detailed procedures for an arrest, it did not in any way dilute the discretion of a law enforcement agency in making arrests.

Looking within:

When the law is silent in the matter it is the basic responsibility of senior law enforcement officers, at the Centre and in the States to ensure sobriety and objectivity.

Conclusion:

It is also preposterous to believe that an agency such as the CBI will be totally free of bias or selectivity.
However, no premier investigating agency would dare resort to peremptory action such as an arrest of a prominent public figure without preparing the ground in the form of the evidence available in documents and oral statements.

News Source: The Hindu