Top court says that Indiscriminate arrests create impression of cops rule

The Apex Court today urged the Centre to border a law to restrain investigating agencies from arresting the accused unnecessarily saying that indiscriminate arrests reflect a colonial mindset and build the impression of a "police state".

A bench of Justices Sanjay Kishan Kaul and M M Sundresh also appealed to the Centre to border a replacement law to streamline the method of granting bail, saying there's a "pressing need" for it and ruled that the regular bail application of an accused had to be decided normally within period of time and anticipatory bail within six weeks. It directed all states and Union territories to confirm strict compliance of Section 41 and 41A of the CrPC on the method to be adopted before arresting people. 

"Jails in India are flooded with undertrial prisoners. The statistics placed before us would indicate that quite 2/3rds of the inmates of the prisons constitute undertrial prisoners. Of this category of prisoners, the bulk might not even be required to be arrested despite registration of a cognisable offence, being charged with offences punishable for seven years or less. they're not only poor and illiterate but also would come with women. Thus, there's a culture of offence being inherited by many of them. As observed by this court, it certainly exhibits the mindset, a vestige of colonial India, on the a part of the investigating agency, notwithstanding the actual fact that arrest may be a draconian measure leading to curtailment of liberty, and thus to be used sparingly. in an exceedingly democracy, there can never be a sway that it's a tyranny as both are conceptually opposite to every other," said Justice Sundresh, who penned the judgment for the bench.

The bench said the principle that "bail is that the rule and jail is that the exception" is that the touchstone of Article 21 (Right to Life and Liberty) of the Constitution which has been repeatedly held by the apex court and presumption of innocence may be a universal principle.

"Even for a cognisable offence, arrest isn't mandatory as are often seen from the mandate of this provision. If the officer is satisfied that an individual has committed a cognisable offence, punishable with imprisonment for a term which can be but seven years, or which can touch the said period, with or without fine, an arrest could only follow when he's satisfied that there's a reason to believe or suspect that the said person has committed an offence, and there's a necessity for arrest. Such necessity is drawn to forestall the committing of any longer offence, for a correct investigation, and to stop him/her from either disappearing or tampering with the evidence. She/he may be arrested to forestall such person from making any inducement, threat or promise to a person so on dissuade her/him from disclosing said facts either to the court or to the officer," it said. 

The court said a officer is duty-bound to record the explanations for arrest in writing and both the weather of "reason to believe" and "satisfaction qua an arrest" are mandated and accordingly to be recorded by him. The bench lamented that provisions and therefore the apex court's earlier order weren't being followed by agencies.

"We also expect the courts to return down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41A. We express our hope that the investigating agencies would confine mind the law laid down in Arnesh Kumar (Supra) case, the discretion to be exercised on the touchstone of presumption of innocence, and also the safeguards provided under Section 41, since an arrest isn't mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance," it said.