Pre-Arrest Right of Accused

  • Right against legally unwarranted investigations: Art. 21 of the Constitution of India mandates that no person shall be deprived of his life or liberty except in accordance with procedure established by law. Invocation of criminal process against a person has the effect of making serious inroad on the right to liberty and property of a person. Therefore, as observed by Methew J. in Dayal Deorath Vs. The District Magistrate, Kamrup the history of the personal liberty is largely the history of insistence on observance of procedure and observance of procedure has been bastion against want on assault on personal liberty over the years. So, the accused has a right to insistence on procedure being followed by the police in the investigatory process.

    The first stage in the investigatory process is information regarding commission of an offence which an officer in charge of a police station is competent to investigate. Such information can be given by person or the police itself may have information regarding commission of such offence. An officer in charge of a police station is competent to investigate a congnizable offence without orders from a Magistrate. Therefore, on receipt of an information through a person or when police has the information of its own, first procedural requirement is recording of such information as FIR. At this stage the officer concerned cannot embark upon an inquiry as to whether the information laid by the informant is reliable and genuine or otherwise and cannot refuse to register a case on the ground that information is not reliable or credible. The condition which is a sine qua non for recording the FIR is that there must be an information and that information must disclose cognizable offence. When these two requirements of Section 154 of the Code are fulfilled the concerned police officer has no other option except to enter the substance thereof in the prescribed form, that is to say registered a case on the basis of such information. It is not within his domain to go into the question of credibility or reasonableness of information.

    The second stage in the investigatory process is of taking decision by the officer in charge of a police station whether to proceed to investigate or refuse to investigate the case. Here he has circumscribed discretion to take a decision either way. Sub-section (1) of Section 157 of the Code imposes a statutory duty on an officer in charge to proceed in person or depute one of his subordinate officer not below such rank as the state Government may prescribe in this behalf where, from the information received or otherwise, he has ‘reasons to suspect the commission of an offence which he is empowered under Section 156 of the Code of investigate. It is important to note that Section 157 (1) of the Code requires the police officer to have ‘reason to suspect’ only with regard to the ‘involvement of an accused in the crime’. Again, the concerned police officer has discretion not to enter in investigation: (i) when information as to the commission of the offence is given against any person by name and case is not of a serious nature; and (ii) if it appears to the officer in charge concerned that there is no sufficient grounds for entering on an investigation. But in case of his refusal to enter into an investigation in above two situations he is bound to notify this fact to the informant and the reasons for not entering into investigation under clause (b) of the proviso to Section 157 of the Code in addition to making a report of the reasons for not complying with the requirement of Section 157 (1) of the Code while forwarding the report to the Magistrate competent to take cognizance. From the above discussion it emerges that officer in charge of a police station must have ‘reasons to suspect’ the commission of a cognizable offence and which he is empowered to investigate Section 156 of the Code before he can enter into an investigation. This is a jurisdictional requirement for entering into an investigation. The Supreme Court while explaining the meaning of the expression ‘reason to suspect the commission of a cognizable offence’ observed that it means the sagacity of rationally inferring the commission of a cognizable offence based on the specific articulate facts mentioned in the First Information Report as well in the annexures, if any, enclosed and any attending circumstances which may not amount to proof. In other words, the meaning of the expression ‘reason to suspect’ has to be governed and dictated by the facts and circumstances of each case and at that stage the question of adequate proof of facts alleged in the FIR does not arise. But what should be the yard stick to infer existence of reasonable suspicion. In State of Gujarat Vs. Mohanlal J. Porwal Supreme Court explained that the circumstances have to be viewed from the experienced eye of the officer who is well equipped to interpret the suspicious circumstances and to form a reasonable belief in the light of the said circumstances.

    In a criminal investigation the police officer investigating the case should not proceed with pre-conceived idea of guilt of the accused person dicted with commission of an offence and subject him to any harrassment and victimisation. In order to ascertain whether there are sufficient reasons to enter in investigation he may make a preliminary inquiry. Such a preliminary inquiry, in the absence of any prohibition in the Code, express or implied before registering an offence and making a full scale investigation into it is open to police officer to make. Similar view has again been taken by the Supreme Court in subsequent decision.

    Another condition for a valid investigation is that the officer conducting the investigation must be competent to investigate the case. If he is not competent to investigate the offence, the investigation will bear the stamp of illegality , and if brought to the notice of the Court at the early state, the Court will have to consider the nature and extent of the violation and pass appropriate orders as may be called for to ractify the illegality and cure the defect in the investigation. The investigation will be illegal if (i) the FIR does not disclose any offence; (ii) does not disclose commission of a cognizable offence and investigation is being carried out without permission of the Magistrate; and (iii) where officer investigating an offence is not competent to investigate the case. If investigation is illegal accused has a right to seek appropriate remedy against such investigation.

  • Remedy against legally unwarranted investigation: In Bhajan Lal’s case17 Supreme Court made a detailed survey of the case law on the subject of inherent powers of the High Court to quash FIR and as illustrative cases, set out the circumstances under which the High Court can quash the FIR as under:
    • Where the allegations made in the FIR, taken on their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused.
    • Where the allegations in the FIR and other materials, if any, accompanying the FIR, do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.
    • Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence or make out a case against the accused.
    • Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.
    • Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
    • Where there is an express legal bar engrafted in any of the provisions of the Code of the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provisions in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
    • Where a criminal proceedings is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vegeance on the accused and with a view to spite him due to private and personal grudge.

    In these case, the High Court in exercise of its inherent powers or the writ jurisdiction can quash the FIR and accused has a right to such remedies.

  • Right against legally unwarranted arrest :
    • When arrest justified?: In America nature and character of arest and consequent search and seizure has far reaching effect on the admissibility of evidence so obtained. Therefore, in America, as observed from the decisions more emphasis is always laid by the lawyers to attack arrest and search and seizure. In India, because of difference in position of law as prevails regarding admissibility of evidence so obtained, seldom emphasis is laid on this aspects in cases argued before the Courts except where the offence alleged against the accused has necessitated the challenge of arrest itself in determination of necessary ingredients of such offence. In America an arrest without ‘a probable cause’ is illegal and so the consequent search and seizure. The doctrine of ‘probable cause’, thus is the pivotal in the criminal jurisprudence in united States of America. The Supreme Court of United States of America defined the ‘probable cause’ to arrest in Beck Vs. Ohio18 in the following words:

      ”Wherether at the moment the facts and circumstances within their knowledge and of which they had reasonable trust-worthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offence.”

      Again the import of term ‘probable cause’ to arrest has been the subject matter of decision in a number of cases where Supreme Court held that before arresting a person on a ‘probable cause’ police officer may not have evidence to satisfy himself about the guilt beyond reasonable doubt but definitely it is more than ‘mere suspicious’.19 This yard stick has been applied in varied facts and circumstances of cases arising out of personal knowledge of police officer or on the basis of information gathered from other sources.

      In India, arrest are governed by the statutory provisions contained in the Code. As already discussed, there are three stages leading to invocation of investigatory process: (i) receipt of information regarding commission of a cognizable offence; (ii) taking a decision whether to enter into investigation or not; (iii) ascertainment of facts as to who is offender and taking steps for his arrest. The first two aspects have already been discussed in the previous chapter. Third aspect is the subject matter of this chapter.

      After an officer in charge of a police station has decided to enter into investigation of an offence which he is empowered to investigate, he is to ascertain as to who is the probable offender whether he should be arrested. Arrests are of two kinds: (i) accusatorial arrest (where a person is sought to be arrested for commission of an offence punishable under the law); and (ii) preventive arrest (where the arrest is meant or authorised as a preventive measure for the prevention of cognizable offences).

      ‘Arrest’ can be defined as putting restraint on the liberty of a person by a police officer for any act or omission which constitutes an offence and under the circumstances in which law authorises a police officer to exercise such discretion to put restraint on such person. Existence of legally justifiable circumstances or requirement is a
      sine qua non for a legal arrest.

    • What is illegal detention?: Art. 21 of the Constitution guarantees a right against deprivation of life or liberty except in accordance with the procedure established by law. Any arrest or detention which is not sanctioned by the law would be illegal. As discussed in the previous chapter, law authorises a police officer to arrest a person on the existence of certain circumstances and his subsequent detention for a specified period is sanctioned by Section 50 of the Code. Therefore, it follows that if the arrest is not legal, the detention is consequence thereof cannot be legal, Secondly, even though a person may be lawfully arrested but his subsequent detention may become illegal merely because he has not been dealt with in accordance with the provisions of the law. For example, if the person arrested has been kept by the police beyond 24 hours of his arrest, though the person’s arrest will be legal yet the subsequent detention wihout remand may be illegal and infringe his fundamental rights under Art. 20, 21 and 22 of the Constitution.20
    • Remedies against illegal arrest and detention: There are two remedies open to a person under illegal detention: (i) ordinary statutory remedy; (ii) extraordinary constitutional remedy. So far as illegal detention is concerned, a person complaining of illegal detention is concerned, a person complaining of illegal detention can invoke the jurisdiction of District Magistrate, Sub-Divisional Magistrate or the Magistrate First Class. Such Magistrate, if convicted that any person is so confined under the circumstances that the confinement amounts to an offence, he can issue search warrants authorising any person to search for the person so confined and if found, is required to be produced before such Magistrate who may make such orders as the circumstances of the case warrant.21 Detention of a person without lawful justification amounts to wrongful confinement. Therefore, the Magistrate will be competent of issue search warrants for the search of a person who has been confined by the police under the circumstances which constitute illegal confinement. However, the Magistrate, probably has no jurisdiction to pass any orders in case where the arrest is illegal. First reason is that according to scheme of the Code investigational function has been exclusively reserved for the police and exercise of Magistrate powers on the material supplied on behalf of person allegedly confined in consequence of arrest, may amount to interference with investigational process. Secondly, because of the limited role assigned to the magistrancy under the Code in the investigatory process, it is hardly in a position to decide mixed question of aw and fact at the initial stage. Therefore, in such cases this remedy is hardly efficacious.

      The secondly remedy, which is more effective and efficacious, is writ of habeas corpus. Arrest and detention without any legal justification is an infringement of the fundamental right of a person under art. 21 of the Constitution. Under Art. 32, the Supreme Court and under Art. 226, the Court is competent to issue writs in the nature of habeas corpus or pass any appropriate order or direction suited to the circumstances of the case. In Bhim Singh’s case22 the petitioner was illegally arrested with intention to prevent him from attending the Session of the Legislative Assembly and to cover up the story was booked under Section 153 of the Ranbir Penal Code, Supreme Court held the arrest as malacious and released the petitioner. Similarly, on the facts on which the driver of the truck was arrested on supposed violation of Andhra Pradesh Schedule Commodites (Licence and Distribution) Order, 1972, which made out no offence, Andhra Pradesh High Court23 released the driver from custody in exercise of its powers under Art. 226 of the Constitution. In case of illegal detention, in Kamla Devi Chatopadhayay’s case24 Supreme Court ordered release of a number of person who has been lodged at Ludhiana and Amritsar jaisl without any charges against them.

      From the above discussion it emerges that legal remedies have been provided under the Code and the Constitution for restoration of liberty of a person. Statutory remedy is provided under Section 97of the Code under which Magistrate can issue search warrants for search of person illegally confined. Writ jurisdiction of the High Court and the Supreme Court is extraordinary remedy which can also be resorted to in appropriate cases of illegal confinement.

      • AIR 1974 SC 183.
      • S. 156 (1) of the Code.
      • State of Haryana Vs. Bhajan Lal, AIR 1992 SC 604.
      • Ibid.
      • Proviso, S. 157 (1) of the Code.
      • S. 157 (2) of the Code.
      • Supra note 3.
      • Ibid.
      • AIR 1987 SC 1321.
      • Sirajuddin Vs. State of Madras, AIR 1971 SC 520
      • State of Uttar Pradesh Vs. Bhagwant Kishore Joshi, AIR 1964 SC 221.
      • H.N. Rishbud Vs. State of Delhi, AIR 1955 SC 196. See also Inder Singh Vs. State of Delhi, AIR 1955 SC.
      • Supra note 3.
      • Hazari Lal Gupta vs. Rameshwar Prasad, AIR 1972 SC 484.
      • (1964) 379 US 89, 91, 13 L Ed. 2D 142, 85 S Ct 223.
      • 19 Mallory Vs United States (1957) 354 US 449, L L Ed 2d 1479, 77 S Ct 1356, Henry Vs. United States (1959) 361 US 98, 101 41 Ed 2d 134, 80 S Ct 168; Wong Sun Vs. United States (1963) 371, 479, 9L Ed 2d 441, 83 S Ct 407.
      • Bhim Singh Vs. State of J and K, AIR 1986 SC 494.
      • Section 97 of the Code.
      • Supra note 34.
      • Supra note 32.
      • Supra note 35