Arrest of an Accused is not a must in every Cognisable Case


The issue that this article discusses is whether registration of a First
Information Report (FIR) against an accused needs to be followed by
his/her imminent arrest.

Nowadays, when an allegation of committing a cognizable offence comes up
against a person - particularly a celebrity - there will be a public
outcry for his/her arrest even though such an arrest is unwarranted in
accordance with criminal jurisprudence or its practice. Unnecessary
arrests and unjustified pre-trial detention pose grave threat to many
citizens accused of committing cognizable criminal offences.

The five member constitutional bench of the Supreme Court in
Lalithkumari case
categorically stated that the arrest of a person is not directly linked
to the registration of FIR. The verdict states both are entirely
different concepts operating under different parameters and if a police
officer misuses his power of arrest, he can be tried and punished under
Section 166 of the Indian Penal
. Therefore a police officer
should apply his mind independently while taking a decision on arresting
anyone. He should ignore the vociferous public outcry for arrest that
goes just against what is stated in the statue book. Arrest and
detention of the accused in custody is treated by people in general as a
procedural punishment for the accused.

Indian laws on arrest, pre-trial detention and charge framing are in
shambles or irreparable disorder. Those laws are of colonial origin. The
Law Commission of India in its 177^th^
, by
citing the statistics provided in the Third Report of the National
Police Commission, points out that sixty percent of the arrests were
unnecessary or unjustified. A major section of jail inmates were those
unnecessarily arrested. Due to procedural tangles some of them are
forced to languish in jail for long even without knowing the charge on
which they were arrested - as charge framing by the court takes place
pretty long after the arrest.

In a cognizable offence, the laws provide the police officer enough
legal authority to arrest an accused and put him in lock up. Lodging an
FIR - based on a credible information or reasonable suspicion founded on
some definite fact in regard to the commission of a cognisable offence -
is a must for arrest. But arrest is a discretionary power for the police
officer to excericse. That needs to be exercised only when sufficient
justification exists. However when an FIR is filed, the police usually
spring up into action and arrest the accused unless the arrest is put on
hold by political influence or by money in an unholy manner. The power
to arrest is a lucrative source of money for the police. An arrest
cannot be done without registering an FIR. In fact, a mere allegation
must end up in registering an FIR against the accused but not in his/her
arrest. A police officer is not bound to arrest an accused even if he
has committed a cognizable offence and an FIR is lodged. The Criminal
Procedure Code (CrPC) does not per se provide the police officer an
unqualified authority to arrest an accused. That means an accused has
committed a cognizable offence is not a reasonable ground for making an
arrest. In Arnesh Kumar V State of Bihar &
, the Supreme Court
said, “We believe that no arrest should be made only because the offence
is non-bailable and cognizable and therefore, lawful for the police
officers to do so”.

Arrest is in fact an encroachment on the freedom and liberty of the
person so arrested. It infringes his fundamental right granted by the
constitution which can be restricted only in a limited manner. Therefore
the power of arrest is to be exercised only with great caution and
suspicion but not on vague surmises. Investigation can proceed without
arrest if an FIR is registered. It is a problem that the power to arrest
is with the Police and the power to frame the charge rests with the
magistrate at a later stage, unlike as in the UK where both are done by
the police itself. Arrest is the formal taking of a person to lock up.
It is being done to prevent the accused from tampering evidence, induce
threat to the witnesses and keeping away from court proceedings when
required. These things can be solved by enforcing some conditions on the
accused. In arrest, the police officer is not expected to act in a
mechanical manner. Some tangible proof must exist about the commission
of an offence, when a police officer initiates arrest of an accused. Due
diligence must be exercised by the police officer when putting an
accused under arrest. In the UK the Police are to pay damages if their
exercise of power in regard to the arrest is wrong whereas in India the
CrPC encourages wrongful or false arrests. The police can remand an
accused in custody for 90 days without filing a charge report and the
court can keep him in jail almost indefinitely. In spite of all this
there is no restraint on police in India in regard to arrest.

The statutory provision that authorizes a police officer to arrest an
accused is Section 41 of the
. The term “may arrest
“used in the section denotes that the power of arrest is discretionary.
Arrest of a person can cause incalculable harm to his reputation which
he has built up over the years. Therefore, except in heinous offences
and in unnecessary circumstances, arrest must as far as be avoided.

Unduly long pre-trial detention occurs in many criminal cases. The
accused have to languish in jail for long. Some of them will be found
not guilty and set free at the end. Magistrates have a due role in such
a state of affairs. An accused, who has been arrested by Police, can be
detained in prison beyond 24 hours only with the authorisation of the
court. Therefore the Supreme Court in Arnesh Kumar V State of Bihar &
cautions the magistrates
that the power to authorize detention is a solemn function and needs to
be exercised with great care and caution. But many of the subordinate
court verdicts show that the courts do not exercise the function with
the seriousness it deserves. In many cases the detention is authorised
by the magistrate in a routine, casual and cavalier manner.

In short, when any piece of information disclosing the commission of a
cognizable offence reaches a police officer no discretion is left to him
except registering an FIR. But in the case of exercising the power of
arrest, the officer must apply his mind and decide whether the person
accused need to be arrested or not. Even if an FIR is lodged arrest is
not a prerequisite. In Lalithakumari
, the Supreme Court
unequivocally declared the parameters of registering an FIR removing
every trace of doubt. Similarly a verdict from the Supreme Court for
re-examining the laws relating to arrest is urgently needed. Unnecessary
arrests and pre-trial detention in many a case go against the
constitution and the rule of law itself.


[^1]: Gangothri, Achuthapuram, Mulagunnathukavu, Thrissur-680581, Email
:, Mob : 9496125452