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To Arrest Or Not To Arrest: Misuse Of Power Of Arrest


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, the 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 police.

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 their opponents.

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 required.

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 case.

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 courts.

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 accused person.

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 and literature.

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.

In a 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 granted.

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.

In non-bailable 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 to arrest.

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 unlawfully.

  1. Power to arrest, and its misuse Shailesh Madiyal, May 12, 2018, 00:06 IST, Updated: May 12, 2018, 01:15 IST, Read more at:
  2. The Power Of Arrest Of The Police: The Uses And Misuses, Devansh Sharma, January 1, 2020,
  3. The use and misuse of power of police to arrest- an in-depth study in the light of Supreme Court dec, By Randeepdahiya,
  4. Advocate Khoj, Misuse of power of arrest/Law relating to Arrest,
  5. Law Commission of India reports,

Written By: Md. Imran Wahab
, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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