Power of Police To Arrest: RESTRICTIONS
on ITS MISUSE
Section 50 Cr.PC: Correspond
to Section 47 BNSS 2024: Scope redefined
The power of police to arrest any individual pursuant to lodging
of F.I.R in cognizable offences has always been a debatable point. The
provision in respect of such power of police is ingrained in section 50 of
Cr.PC and correspond to section 47 of Bhartiy Nyay Surakhsha Sanhita (BNSS).
It
is thus pertinent to refer to Section 50 of the Cr.PC before analyzing the
aspect further. The Section 50 of Cr.PC is illustrated below as under:
Section 50 of the Cr.P.C. provides as
under:
Section
50. Person arrested to be informed of grounds of arrest and of right to bail.
(1)
Every police officer or other person arresting any person without warrant shall forthwith communicate to him full
particulars of the offence for which he is arrested or other grounds for such
arrest.
(2)
Where a police officer arrests without warrant any person other than a person
accused of a non-bailable offence, he shall inform the person arrested that he
is entitled to be released on bail and that he may arrange for sureties on his behalf.
It
is evident from the aforesaid that the law mandates the police officer to
inform the arrested individual of the full particulars of the offence or the
grounds for arrest. The said obligation is not a ritualistic necessity or mere
formality, but the obligation is cast on Police to convey the details to the
accused as a safeguard prescribed under law, since the individual's right to
liberty cannot be compromised in extra-legal way. What is further
significant is the fact that Section 50 Cr.P.C. contains the word forthwith. which implies that the
accused will have to be communicated grounds for such arrest so that
arrested individual should not be deprived of legal recourse.
The
constitutional safeguards are incorporated in the procedural law as procedural
safeguards. In the criminal trial, what has to be borne in mind further is that
an individual is pitted against the might of the State and the safety valve is
accorded through courts of law , since all such aspect of grounds of arrest,
necessity of it and whether the arrest is lawful or not shall have to be
adjudicated by the Courts.
ANALYSIS
It
is a settled proposition in law that the absence of specific grounds of
arrest not only violates statutory rights, but the constitutional rights as
well, in as much as safeguards are prescribed under section 50 of Cr.PC and
also under Article 22(1) of the Constitution. What therefore emerges is that if
a person is arrested, he has a fundamental and a statutory right to be informed
about the grounds of arrest in writing and a copy whereof shall have to be
provided to the person arrested as a matter of course. The purpose of informing
to the arrested person the grounds of arrest is salutary and sacrosanct , since
that will enable a person to have full information about arrest so that
effective legal measures could be taken by him such as consulting counsel and
oppose the police custody remand and to seek bail. Ref: Pankaj Bansal v. Union of India (2023 SCC OnLine 1244
The
dictionary meaning of the word ―forthwith‖ as defined in the
Shorter Oxford English dictionary on historical principles, fifth edition,
volume – 01 A-M is (1) Along with, at the same time; and (2) Immediately, at one,
without delay. The term forthwith‘ in
legal parlance also generally implies an action that must be taken without
unreasonable delay. It suggests promptness and urgency. In Black’s Law Dictionary, 10th Edition as ―forthwith,
adv. (14c) 1. Immediately; without delay. 2. Directly; promptly; within a
reasonable time under the circumstances; with all convenient dispatch.What thus clearly emerges is that the grounds for such arrest‖ have
to be communicated at the earliest. What is also clear that onerous duty is
cast on the Courts to examine the implementation of procedural safeguards
emanating out of the constitutional rights, and that have to give strict
interpretation.
The hon’ble Delhi High Court in a case captioned as MARFING TAMANG
@ MAAINA TAMANG Vs STATE OF NCT OF DELHI, bearing No. CRL.M.C. 4391/2024 has
analysed the precise definition of the word “forthwith” as used in
section 50 of the Code of Criminal Procedure Code, 1973 a Co-ordinate Bench in Pranav
Kuckreja Vs State of NCT of Delhi 2024 SCC OnLine Del 9549 it is held by
Delhi High Court that the word “forthwith”
appearing in section 50 Cr.P.C. implies that the grounds of arrest have to be
communicated to an arrestee at the time of his arrest (and not later).
Similarly, in Kshitij Ghildiyal vs. Director General of
GST Intelligence, Delhi 2024 SCC
OnLine Del 8949 it was held likewise.
The decision of the Supreme Court in Ram Kishor Arora vs.
Directorate of Enforcement(2024) 7 SCC 599, the hon’ble Supreme Court
had rendered judgment in the context of
section 19 of the Prevention of Money-Laundering Act, 2002 („PMLA‟), and it is
further held that what arising from the text of section 19 of the PMLA is that
the said provision requires that the grounds for arrest have to be supplied “as
soon as may be”; however the phrasing of section 50 Cr.P.C. requires that
the grounds of arrest be communicated to an arrestee “forthwith”.
The Hon'ble Supreme Court titled Prabir
Purkayastha Vs. State NCT Delhi D No. 42896 of 2023 wherein it was held by the
Hon'ble Supreme Court, the grounds of arrest must be supplied in writing so
that he can ensure his legal representation and object the remand Arrest memo
perused. Reasons of arrest have been duly mentioned.
Pertinently,
in Marfing Tamang (Supra)i it
is held by Delhi High Court that furnishing the grounds of arrest in writing
just about an hour before the remand hearing in the present case, cannot
possibly be due or adequate compliance of the requirements of section 50
Cr.P.C., which mandates that grounds of arrest must be communicated to an
arrestee forthwith that is to say simultaneously and immediately upon
the arrest of such person.It was further observed that the via media adopted
by the learned Magistrate, whereby the learned Magistrate directed the I.O.to
serve the grounds of arrest in writing upon the petitioner after the
petitioner had already been produced in court; and then observing that since
the remand hearing took-place about an hour later, it was sufficient compliance
of the law, reduced the petitioner‟s right under section 50 Cr.P.C. to a farce.
It must also be observed that in its decision in Pranav Kuckreja Vs State of NCT of Delhi 2024 SCC OnLine Del 9549, the Delhi High Court had categorically suggested that a column be incorporated in the
format of an “Arrest Memo‟ requiring the I.O./A.O. to pen-down the grounds of
arrest then-and-there, which would streamline and ensure that such grounds are
communicated to the arrestee forthwith at the time of issuing the arrest
memo.
The Delhi High Court , after taking note of the provisions of
Section 50 of Cr.PC and judicial precedents in this regard has held in Marfing
Tamang (Supra) as under:
“36. In order to bring
abundant clarity in the matter, this court would also observe that sufficient
time must given to an arrestee after the
grounds of arrest have been served upon him in writing, to enable the arrestee
to engage and confer with legal counsel, the test being that the arrestee must have
meaningful opportunity to resist his remand to police custody or judicial
custody.
37. Accordingly, remand order dated
18.05.2024 also stands vitiated and is set-aside.
38. As a sequitur to the above, the
petitioner is directed to be released from custody, unless required in any
other case.
39. However, since the petitioner‟s
arrest is being set-aside on the ground of non-compliance of the mandatory
requirements of section 50 of the Cr.P.C. and Article 22(1) of the
Constitution, but the petitioner must continue to participate in the
proceedings arising from the subject FIR in which chargesheet has been filed,
this court deems it appropriate to direct that the petitioner shall be released from judicial custody, subject
to furnishing a personal bond of Rs. 25,000/- (Rs. Twenty-five Thousand Only)
with 02 local sureties in the like amount, to the satisfaction of the learned
trial court”.
The
sum and substance of the above discussion is that a constitutional mandate must
be understood and implemented in its right and rational perspective, and not casually.
It is often pleaded by the prosecution that the narrative in the remand
application amounted to grounds of arrest shall not pass muster, in as
much as, furnishing the remand application just before the remand hearing would
effectively negate and nullify the duty cast on the prosecution to convey
and inform meaningfully about the arrest
and that too at the earliest and in a manner prescribed in law and not in
mechanical manner. The “Right to life and dignity” under Article 21 of the
Constitution which is life and blood of the constitution cannot be allowed to be
allowed to be compromised in any manner and section 50 of Cr.P.C corresponding
to Section 47 of the BNSS and its terms shall have to complied with in letter
and spirit.
---------
Anil
K Khaware
Founder
& Senior Associate
Societylawandjustice.com
