Let us say we were creating the law on criminal process from scratch, for a just utopia. The law would need to empower police to arrest persons who are probable, not merely possible, suspects. Inbuilt in such a power to arrest must be a restriction against arbitrarily arresting people who are not probable crime suspects. Such a restriction would have to be founded in the right of individuals against arbitrary intrusions into their lives by the state and law enforcement, recognised in Puttaswamy v. Union of India (2017). Departing from the view of privacy as a bundle of rights, the Supreme Court held that privacy is essential for protecting personal liberty as it allows us to define ourselves and our relations to others.
But it is not enough to merely recognise a right of individuals, and a corresponding restriction on the power of the police. The restriction must also serve to deter the police from intruding willy-nilly into the private lives of individuals. On balance, criminal process in a just utopia ought to incentivise honouring the individual’s right to privacy as autonomy while discharging law enforcement duties. After all, one is presumed innocent until proven guilty.
Cognisable offences
How close is India to being this utopia? Activist Shehla Rashid, on FIRs accusing her of sedition and promoting enmity between religious groups, had to recently secure protection against arrest from a court. This is because both the named offences are “cognisable” — that is, an officer can take cognisance of and arrest a suspect without seeking a court’s warrant to do so, if she has “reason to believe” that the person has committed the offence and is satisfied that the arrest is necessary on certain enumerated bases. Within 24 hours of the arrest, the officer must have any further detention of the arrested person ratified by a judicial magistrate.
How would officers make the decision on whether to arrest someone? They must first weigh the probability of a person having engaged in the criminalised conduct. This is a factual question. Next, they must assess if the conduct in question fits the definition of the offence, to decide if the person ought to be arrested. This too is a factual question. However, this question is comparatively easier to answer when the offence criminalises conduct for constituting the harm. For instance, the offence of murder constitutes the harm of loss of life — the police officer must decide, on facts, whether the loss of life resulted from the intentional conduct of the accused. But it is a harder question to answer in case of offences such as those in the FIR against Ms. Rashid, as officers must answer whether the suspect’s conduct will result in or cause harm as a downstream effect. Needless to say, this prediction can only be accurate and free of error if officers are clairvoyant!
Whether the offence criminalises conduct for constituting harm or causing harm as a downstream effect, there is no restriction on the powers of the police that deters arrests based on an error in answering these factual questions. In the case of offences mentioned in Ms. Rashid’s example, factual errors can result from exuberant policing, driven by subjective convictions on what might cause hatred, contempt or excite disaffection against the government or promote enmity between religious groups. In offences like these, the line between exuberant policing and a reasonable belief that the arrested person engaged in criminalised conduct can be hazy. Therefore, it is unclear what parameters can be employed by the judicial magistrate in deciding whether to remand the accused person to further custody for investigating the acts of the accused.
An arrest based on such an error would unconstitutionally curtail not only the arrested person’s freedom to engage in speech and conduct, but also her liberty against arbitrary arrest. Further queering the pitch is the requirement on the police to apply judgments of the Supreme Court modifying definitions of offences to bring them in line with the Constitution. For instance, the definition of sedition was read down in Kedarnath Singh v. Bihar (1962) to encompass only speech or conduct that can “incite violence” or “involves the intention or tendency to create disorder”. Thus, an officer examining a sedition FIR needs to accurately understand and apply Kedarnath Singh , before taking cognisance of the offence. The Court restated this requirement in September 2016, in Common Cause v. Union . The question is whether such an essentially mixed question of fact and law can be left to the police force, an essentially executive authority trained to undertake investigative decisions.
Non-cognisable offences
On the other hand, a non-cognisable offence would need officers to approach a court for a warrant before they can arrest a suspect. Why some offences can lead to arrests only upon judicial intervention for issuance of warrant is unclear. One rationale proposed by some courts is that grave and serious offences are cognisable. However, the Malimath Committee noted in 2003 that many serious offences like public servants disobeying the law to cause injury to any person; bribery during election; buying or disposing of any person as a slave; cheating; mischief; forgery; making or using documents resembling currency notes; and criminal intimidation were non-cognisable.
Contradicting the gravity-of-offence rationale is the 177th Law Commission Report which states that cognisable offences are those that require immediate arrest. However, lawyer and scholar Abhinav Sekhri notes that Part B of the Schedule comprising cognisable offences in the Code of Criminal Procedure (CrPC) carries several offences that do not necessitate immediate arrest, such as making unauthorised constructions, repairs and modifications to one’s house under a Maharashtra town planning law. This raises questions about the rationale behind selectively requiring judicial scrutiny of some arrests, while permitting full police-discretion over other arrests.
The CrPC was written in 1973. Ever since, multiple judgments of the apex court such as Joginder Kumar (1994), DK Basu (1997) as well as Law Commission Reports (154th, 177th) critiqued the wide powers of arrest for cognisable offences. This led to the 2009 amendment which restricted the power to arrest, to persons against whom “a reasonable complaint” or “reasonable suspicion” exists, or “credible information” is received, of having “committed a cognisable offence.” Even so, the CrPC neither deters arbitrary arrests, nor comprises incentives for carrying out arrests consistent with the individual liberty and autonomy of individuals. What then happens to the right to privacy and autonomy of a person who is arrested on a charge that does not meet the tests laid down by the Court — such as in Kedarnath Singh or, worse, on a charge that is proved to be empty?
A code that does not compel the police to constantly be accountable to individual liberty and the Constitution is merely a police procedure manual. After Puttaswamy ’s emphatic recognition of the right to privacy as autonomy, inherent in individual dignity, it is imperative that we rethink the powers to arrest for cognisable offences against the state and against public tranquility. For the CrPC to truly realise criminal justice, we might even profitably reimagine the very concept of a cognisable offence as we presently know it.
Malavika Prasad is a lawyer and doctoral fellow at the Nalsar University of Law
Published - October 03, 2019 12:15 am IST
