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Arrest is not always a must, says Supreme Court


From UPSC perspective, the following things are important :

Prelims level: Not much

Mains level: Issues over arbitrary detention

The Supreme Court has held that merely because the law allows arrest does not mean the State can use the power indiscriminately to crush personal liberty.

What is an Arrest?

  • An arrest is a procedure in a criminal justice system.
  • It is the act of apprehending and taking a person into custody (legal protection or control), usually because the person has been suspected of or observed committing a crime.
  • After being taken into custody, the person can be questioned further and/or charged.

Distinction between arrest and detention

  • There exists a distinction between an investigatory stop or detention and an arrest.
  • The distinction tends to be whether or not the stop is “brief and cursory” in nature, and whether or not a reasonable individual would feel free to leave.

Article 21 of the Indian Constitution guarantees the protection of life and personal liberty to every individual and states that, “No person shall be deprived of his life and personal liberty except according to procedure established by law.”

Logic behind arresting

The Supreme Court has noted that:

  • The occasion to arrest an accused during investigation arises when the custodial investigation becomes necessary.
  • Or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond.
  • The court was emphatic that a distinction must be made between the existence of the power to arrest and the justification for the exercise of this power.

Sanctions for arrest as outlined by the Supreme Court

The Supreme Court clarified that:

(A) Avoiding arrests

  • Arrest isn’t a compulsion: Merely because an arrest can be made because it is lawful does not mandate that arrest must be made.
  • Justification for arrest: A distinction must be made between the existence of the power to arrest and the justification for the exercise of it, it noted.
  • Dignity of the undertrial: If an arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person.
  • Evidence protection: There should not be a compulsion on the officer to arrest the accused since many times there is no apprehension that an accused would abscond or tamper with evidence.

(B) Broad implications of Sec. 170 CrPC

  • Narrow interpretation: Section 170 of the Code of Criminal Procedure (CrPC) has been wrongly interpreted by the police and trial courts to make an arrest of the accused mandatory at the time of filing of the charge sheet.
  • Custody, not arrest: The word “custody” in Section 170 had been wrongly interpreted as ‘arrest’.The word ‘custody’ appearing in Section 170 does not contemplate either police or judicial custody.

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