The power of arrest is an important and potent weapon in the hands of police and
other law enforcement agencies to combat crime and maintain law and order in the
country and without this power the police will become toothless and the
criminals and law breakers will lose the fear of police leading to upheaval in
the criminal justice system. What can police do in the absence of this power of
arrest in the face of a riotous mob or a criminal marauding the streets with a
gun in his hands?
There is no other way out to deal with criminals, rapists,
anti-social elements, murderers, kidnappers and terrorists etc. but to arrest
them. However, at the same time there are examples galore of misuse of power of
arrest by the police officers and it is this misuse which is abhorred by the
general public and tarnishes the image of the police in the eyes of the society
at large. Hence, the concerned agencies need to ensure that the power of arrest
is utilized judiciously and honestly by the police officers of all ranks in the
discharge of their duties and this power is not turned into a tool of harassment
and oppression of the common people particularly belonging to the weaker and
vulnerable sections of the society.
The word 'arrest' has been defined neither in the constitution of India nor in
the Code of Criminal Procedure, 1973. It has originated from the French word
'arreter' which implies taking into custody to answer criminal charge or for
prevention of crime. The dictionary meaning of arrest is to 'seize a person by
legal authority' or 'enforcing legal restraints on the movement of a person'.
The power of arrest given to police and other law enforcement agencies is
allegedly being misused throughout the country as the safeguards and provisions
enshrined in the constitution of India and other laws are not enough to protect
the common people from its misuse. Even in civil cases this power is
mischievously being misused to harass the common men and women due to dubious
reasons. This power is often being exercised with illegal motive and at the
instance of the person with whom the arrestee has enmity.
The wide discretionary power given to police by the Code of Criminal Procedure,
1973 in both cognizable and non-cognizable offences and the further power to
make preventive arrest under section 151 CrPC and the several police enactments,
empower the police with extraordinary authority leading to its frequent and easy
misuse. There is no in house mechanism in place to check such aberrations and
misuse of power.
However, it is also true that there are situations when police have to arrest
the accused persons immediately e.g., when there is a strong reason to believe
that they are likely to abscond or they might intimidate the witnesses and
destroy the evidences or they may commit further crime. In such cases too, there
is room for manipulation and all depend upon the 'reason to believe' as
interpreted by the police officer.
Court Rulings on Arrest
In the case of Arnesh Kumar v. State of Bihar and Anr
, the Supreme Court has
imposed certain limitations on the powers of the police to arrest people accused
under section 498A IPC and other laws where the punishment is not above 7 years.
In the case of Lalit Kumari v. Govt. of U.P
., the Supreme Court directed that
the police must register FIR and should not proceed to enquire into the veracity
of allegations as soon as a complaint of cognizable offence is received save in
certain exceptional cases.
In the case of Dr Subhash Kashinath Mahajan v. The State of Maharashtra
Supreme Court issued directions putting restrictions on the powers of the police
to arrest accused persons under the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
In the case of M C Abraham and Anr, A.K. v. The State of Maharashtra and Others
the Supreme Court, while interpreting section 41 of the CrPC, has held that
though the investigating officer has the power to arrest an accused during the
course of investigation, it is not mandatory for him to do so.
In the case of V. Shantha v State of Telangana and Ors,
the Supreme Court ruled
that in order to prevent misuse of power all the preventive laws should carry
scope for judicial review to restrict its use. Proper evidence should be
furnished justifying the arrest in case of arrest of a person.
In the case of Joginder Kumar v. State of U.P
., the Supreme Court has ordered
that "No arrest can be made because it is lawful for the police officers to do
so. The existence of the power of arrest is one thing and the justification for
the existence of such power is quite another".
In the case of D.K. Basu v. State of West Bengal,
the Supreme Court, in order to
put some checks on the power of arrest of the police, has issued some guidelines
required to be followed regarding the arrest or detention of a person by the
Misuse of Power of Arrest
Arrest is the most dreadful word for the common man who wants to avoid it at all
costs as after arrest there is curtailment on liberty and free movement of a
person as he is confined in the lock up of police station or prison where the
common comforts of daily life are not available. Arrest is also perceived to be
a tool of public humiliation in general parlance. Hence, a person who is under
the threat of being arrested moves different courts to get relief and to thwart
his arrest. It has now become a tool allegedly in the hands of some powerful
people to misuse the police and different law enforcement agencies to humiliate
To arrest or not to arrest a person is a discretion invariably misused by some
police officers in discharge of their official duties. They think that they are
at liberty to arrest or not to arrest an accused person particularly when he or
she is FIR-named in a case at their own sweet will. While it is true that it is
easy to arrest FIR-named accused persons, there is legally no bar in arresting
the accused persons who are not FIR-named especially when substantial evidences
against them are present in the form of witnesses' statements or other
incriminating articles or documents pointing to their involvement in a case.
It is essential that before arresting any accused person in a case substantial
evidence should be collected against him/her. Just on the basis of receipt of a
complaint without any evidence an accused person should not be arrested. There
are many instances of filing false first information report to implicate a
person out of personal animosity or other reasons and subject him to personal
humiliation and agony.
There are instances of manipulation of statements recorded under 161 CrPC to
implicate some innocent persons in a case. There are also instances of
manufacturing statements recorded under 161 CrPC to exclude the name of a
genuine accused person from a case. In some cases, statements of witnesses who
didn't know anything about the case and didn't give any statement to the police
are prepared by some police officers sitting at the police stations to either
implicate someone in a case or to exclude the name of someone from a case.
Police officers preparing statements under section 161 CrPC sitting at the
police stations without examining the witnesses is a common practice.
In a bailable case, police are bound to release a person on bail after his
arrest; bail in this case may also be obtained from the court. In a non-bailable
case, police cannot release a person upon his arrest on his own without the
order of the court except in under certain extreme circumstances. If a person is
involved in a non-bailable case, in order to evade police arrest, he would have
to take bail from the court. I f the court refuses bail then he would have to
surrender before the police or in court or the police can arrest him if
In some cases, it is seen that police don't release a person wanted in a
bailable case even after his arrest and keep the person confined at the police
station saying nobody came forward to furnish bail in favour of the accused
person and send him to the court wherefrom bail is generally granted. In other
cases, it is noticed that police don't arrest an accused person even in a non-bailable
case giving him the time and opportunity to get bail from the court.
It is not necessary to arrest an accused person immediately after he is named in
an FIR without verifying the veracity of allegations levelled against him. Even
in false cases people may be named in FIR to harass them. However, in some cases
it is seen that police are very prompt to arrest the accused persons and in
other cases they show no interest in arresting the accused person, even when the
case is cognizable and non-bailable.
Actually, there is no law directing police officers when to arrest the accused
persons and there is a lot of scope of maneuvering given to police officers in
this regard, which some officers utilize judiciously but others misuse the same
to the hilt.
There are also instances where people are arrested and sent to the prison by
making bailable cases non-bailable. As for example, a simple case of 323 IPC
which is non-cognizable and bailable may be made non-bailable by adding section
of theft (379 IPC) or snatching (392 IPC) of watch, money or other valuables.
Earlier in cases under 498A IPC, complaints of physical and mental torture used
to be lodged from the wife side against the whole family including married
sisters of the husband and distant relatives who would live far away out of
vengeance. In these cases too, the police used to harass the entire family
without investigating the case properly and without ascertaining who was
actually involved in inflicting physical and mental torture upon the complainant
and the entire family of the husband would suffer from the fear of arrest and
life in jail and start running from lower courts to High Court or Supreme Court
for getting bail in the case. On the contrary, it is also seen in some cases
that the investigating officer would not investigate a case under section 498A
IPC properly, would never visit the place of occurrence and examine the
witnesses and would not take any action against the husband much to the dismay
and despondency of the victim.
In rioting cases arrest made from the place of occurrence is normally genuine;
however, if the arrest is made some days after rioting there is a lot of scope
for police to manipulate in excluding genuine accused persons and implicating
innocent people by decorating the statements recorded under section 161 CrPC.
During investigation of the such cases, some police officers show fear of arrest
to the genuine people as also to the people who were not involved in the case.
Some people are even implicated in false cases and some genuine accused persons
let off by manipulating the statements under section 161 CrPC on pressure from
the above or due to personal interest of the investigating officer.
In a murder case under section 302/34 IPC, suppose there are four FIR-named
accused persons and in course of investigation the names of two other persons
crop up as accused in the same case on the basis of statements of witnesses. The
investigating officer may exclude the name of one of the two persons whose name
later crops up by removing the statement in which his name was mentioned as
accused from the case diary and later from charge sheet or by compiling some
statements under section 161 CrPC showing his innocence and non-involvement.
Since the statement recorded under section 161 CrPC is recorded by the
investigating officer and he is not bound to show the statement to the witness
and take his signature over the statement, there is a lot of scope for playing
with the same.
If in this murder case the investigating officer wants to remove
the name of one of the four FIR-named accused persons from the case, he may
simply omit the name of the said person from all the statements recorded by him
under section 161 CrPC in this regard and submitting charge sheet excluding the
name of the said person saying there was no evidence or witness statement
against him to submit charge sheet. Similarly, if he wants to implicate any
innocent person in the case, he will simply include the name of the said person
in one or two statements recorded under section 161 CrPC and arrest him in the
case. He may also submit charge sheet against the said person on the basis of
the statements recorded under section 161 CrPC showing him as accused in that
In a murder case the autopsy surgeon kept final opinion regarding the cause of
death pending till receipt of the Forensic Science Laboratory (FSL) report and
submitted the autopsy report to the police authorities without giving his final
opinion regarding the cause of death. The investigating officer submitted charge
sheet against the accused persons on the basis of statements of the witnesses
and the post mortem report.
When the FSL report was received much later, he had
already been transferred out of the said police station and never bothered to
collect the FSL report and submit supplementary charge sheet or final report
after taking final opinion of the autopsy surgeon. In such cases too, the fate
of the case will hang in balance and conviction of the accused persons becomes
impossible. It also facilitates the grant of bail to the accused persons by the
In a case which was bailable the investigating officer told the complainant that
he would keep the accused in police lock up for one night to humiliate him and
to please the complainant provided his demands were met otherwise he would not
arrest the accused as the case was bailable.
In one case, the investigating officer without arresting the accused person
submitted charge sheet in the court showing him as absconding, though he was
present in the locality, and giving the accused plenty of room to get bail from
the court. Here he used his power of not to arrest and gave benefit to the
In a cheating case, the investigating officer did not arrest the accused person,
though available, nor did he recover the cheated money, though the complainant
kept running from pillar to post for recovery of his money.
There may be numerous examples of police arresting innocent persons on pressure
from the above or due to their own personal interest by planting firearms and
ammunition, Ganja, drugs, explosives and Maoist or other religious papers, books
In a case of outrage of modesty against an influential person, where there was
no evidence that the victim had ever visited the house of the accused, the
investigating officer asked her to draw a rough sketch of the room where outrage
of modesty was done, if she really visited the said room. She managed to draw
the rough sketch map of the room in presence of witnesses and based on this
sketch map supported by other corroborative evidences, the accused was arrested
and the case was charge sheeted against him. Here, the investigating officer did
a good work by intelligently devising a way out to tag the accused with the case
by creating reliable evidence.
There are also many examples of police officers calling a person at the police
station on the basis of some false and fabricated verbal or written complaint
against him at the instance of his rival and making him sit and wait at the
police station from morning to night in order to teach him a lesson at the
instance of his enemy or for mischievous reasons.
There are other instances of police arresting a person in a bailable case and
not giving him bail citing various reasons, keeping him in the police station
lock up the whole night and then forwarding him to court the next morning
wherefrom the accused had to take bail.
It is well known that in some instances complaints are given and FIRs are
registered with the connivance of both the complainant and the police to harass
a person against whom the complainant has an axe to grind.
When the police officer works in collusion with the complainant and a lawyer,
the combination becomes more deadly. In a case a girl purportedly under eighteen
years of age would first befriend rich persons and then lodge false complaint
under various sections of POCSO Act, 2012 against them for extortion. In some
bailable cases, a police officer used to give bail only after the advocate of
his choice was contacted by the accused persons or their family members. The
advocate used to come to the police station for grant of bail to the accused
persons by the police officer and return after obliging the police officer.
In many cases, police would allegedly send the victim girl after tutoring her to
speak what was told to her while giving statement under section 164 CrPC before
the judicial magistrate. In some cases, police arrest the accused persons
immediately and in other cases don't arrest the accused persons at all long
after registration of the case helping them to get bail from the court.
gang rape case, the investigating officer allegedly excluded the name of one
accused person by preparing statements of some so-called witnesses under section
161 CrPC in such a way that helped exonerate the accused person from the case,
though he was FIR-named. Invoking Arms Act or Explosive Substances Act against a
person by the police officer to bring terrorism charge against him is another
mode of framing and arresting a person making his bail almost impossible to be
Foisting false case by some police officers by planting the commercial
amount of Ganja (22 Kg) on innocent persons at the instance of people they had
enmity with or for pressure from the above is another common practice noticed in
some districts as bail in such cases are sparingly granted and the accused
persons have to remain in jails for a considerable period of time without parole
and sometimes without regular trial leading to their frustration, headache for
the prison authorities and overcrowding in jails.
There is overwhelming discretion given in the hands of police and law
enforcement officers in the matter of arrest of a person. If the they desire,
they may arrest an accused person wanted in a non-bailable case immediately or
let him roam freely without the fear of arrest and ultimately get bail either
from lower or higher court. It has also been seen that the police officers
sometimes dictate the complainant to write a complaint in such a way that may
turn the complaint from non-bailable to bailable, or from bailable to non-bailable,
or from cognizable to non-cognizable and from non-cognizable to cognizable. Not
giving receipt of the complaint lodged at the police station to the complainant
is another regular feature at most of the police stations.
cases, the scope of manipulation and misuse of power of arrest is even more,
with the threat of arrest looming large in the minds of the accused persons.
Though insertion of section 41A in the Code of Criminal Procedure, 1973, has
imposed some restrictions on the powers of police officers vis-�-vis arrest of a
person, vast powers still remain in their hands in deciding whom to arrest and
whom not to arrest, when to arrest and when not to arrest and to arrest or not
It is also true that the criminals remain in fear of the police
mainly because of their arresting power and without this power nobody will fear
the laws of the land and the crime rate will grow exponentially leading to chaos
in the society. Hence, it is imperative to introduce some mechanism to ensure
that police don't misuse their powers of arrest maliciously, recklessly and
- Power to arrest, and its misuse Shailesh Madiyal, May 12, 2018, 00:06 IST, Updated: May 12, 2018, 01:15 IST, Read more at:
- The Power Of Arrest Of The Police: The Uses And Misuses, Devansh Sharma, January 1, 2020,
- The use and misuse of power of police to arrest- an in-depth study in the light of Supreme Court dec, By Randeepdahiya,
- Advocate Khoj, Misuse of power of arrest/Law relating to Arrest,
- Law Commission of India reports, https://www.advocatekhoj.com/library/lawreports/lawrelatingtoarrest/25a.php?
Written By: Md. Imran Wahab
, IPS, IGP, Provisioning, West Bengal
Email: [email protected]
, Ph no: 9836576565