Erratic arrests by police and the Arnesh Kumar Judgement

A plea recently filed in the apex court sought stricter implementation of the Arnesh Kumar guidelines but the court stated that it lacked concrete facts

Erratic arrests by police and the Arnesh Kumar Judgement

Last week, the Supreme Court refused to entertain a petition seeking directions to ensure that police strictly follow and implement the guidelines laid out in Arnesh Kumar judgement. The petition also sought directions to all state governments to extend bail/parole of prisoners released during the pandemic and consider cases of premature release.

When the petition came up for consideration before a bench headed by CJI SA Bobde, the bench told Senior Advocate Colin Gonsalves appearing for the petitioner that the prayers were too broad and general and that the petition lacked concrete facts. The CJI said that if arrests were in violation of Arnesh Kumar judgement then contempt petition should be filed. The petition was accordingly withdrawn with liberty to file a fresh petition.

The petition states that the current overcrowding in prisons across the country are borne out of not just insufficient steps to release prisoners during the pandemic but also due to ‘over-arresting’ by police and reduced access to bail from courts. The petition pointed towards the figures of overcrowding of prisons in the Prison Statistics report of 2019 by the National Crime Records bureau (NCRB) with many states having occupancy of more than 150% such as Delhi (174.9%), Uttar Pradesh (167.9), Uttarakhand (159%), Meghalaya (157.4%), Madhya Pradesh (155.3%), Sikkim (153.8%), Maharashtra (152.7%) and Chhattisgarh (150.1%).

The research carried out by the Petitioner based on publicly available datasets on the official prison websites of Uttar Pradesh, Madhya Pradesh, Delhi, Rajasthan and Maharashtra shows the grim picture of the continued influx of prisoners during the pandemic which completely defeated the steps taken by the Supreme Court to decongest prisons.

The petition points towards some glaring data from prisons of Uttar Pradesh which houses 21.1% of the country’s prison population. While UP released 9,000 prisoners due to the pandemic (on emergency parole/furlough/interim bail) it added 17,000 undertrials raising overcrowding from 66% in February to 79% in September. Similarly, Madhya Pradesh released about 7,500 prisoners during the pandemic and by September added the same number of undertrials.

The petition then relied upon apex court’s judgement in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 whereby the court stated that arrest shall be made only when police have reason to believe and satisfied that there exists circumstances enshrined under section 41(1) of the Code of Criminal Procedure (CrPC). The judgment states that before making an arrest, the police should refer to the checklist under section 41(1)(b)(ii) of CrPC to see whether arrest is necessary and then furnish such a report to the Magistrate who will then authorise detention after recording satisfaction that arrest is necessary. Failure to comply with this should make the police officer liable to departmental action and contempt of court as well.

The checklist under section 41(1)(b)(ii) of CrPC reads as follows:

“41. When police may arrest without warrant. —

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:—

(ii) the police officer is satisfied that such arrest is necessary—

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:

[Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.]

Basically, in cases where offences invoked incite punishment of 7 years or less, this checklist needs to be looked at, since these would be less serious offences. Hence, the police would need to file a report before the Magistrate to get judicial custody to the satisfaction of the court that there is possibility that the accused will commit further offence, or he could tamper with evidence or induce witnesses or his presence before court cannot be ensured unless he is kept in custody.

The petition holds relevance in light of the indiscriminate arrests being made by the police in recent times. It is time to revive and revisit the Arnesh Kumar guidelines and states need to ensure that the above mentioned checklist is followed thoroughly to not only avoid overcrowding of prisons but also to safeguard right to life and dignity under Article 21.

The Arnesh Kumar judgment is often cited by courts while granting bail and upholding the principle of ‘bail is rule and jail is exception’. When stand-up comic Munawar Faruqui was arrested by police for a joke he never uttered, he had to wait over a month till the top court granted him bail, while some other members of his team continued to languish in jail. During his bail hearing, Justice Nariman noted that if those guidelines (of Arnesh Kumar judgement) were not followed, then “that would be enough” to ensure that Faruqui had to be set free.

Freelance journalist Mandeep Punia was arrested by Delhi Police while covering the farmers’ tractor rally on January 26, was granted bail by Magistrate court while observing that keeping him in custody will not serve any cogent purpose and relied upon ‘bail is rule and jail is exception’ principle.

Further, 21-year-old environmental activist Disha Ravi was picked up by Delhi police in plain clothes, from her Bengaluru residence and taken to Delhi in a rushed manner in the farmers protest ‘toolkit’ case, merely for editing a few lines in the document. She was taken away without a transit remand from the court and was further remanded to 5 days’ judicial custody by Magistrate court.

A young Dalit activist, Nodeep Kaur, was arrested by Haryana police from one of the tents at the farmers’ protests site along Delhi border, and owing to being denied bail by the Sessions court, continues to remain in custody.

With the number of indiscriminate arrests on the rise it would appear that the police need to be reminded of the guidelines under Arnesh Kumar judgement to ensure arrests are only made when they are necessary and not in trivial or less serious offences. The onus is also on the Magistrate court while remanding a person to judicial custody to check whether the arrest satisfies the checklist under section 41(1)(b)(ii) as per Supreme Court’s orders.


Toolkit case: Delhi Police issues warrant against activists Nikita Jacob and Shantanu

DCW questions why Disha Ravi was not provided with lawyer of her choice in court

Breaking: SC grants ad interim bail to comedian Munawar Faruqui

Journalist Mandeep Punia granted bail by Delhi Court

Nodeep Kaur’s ‘illegal confinement’: Punjab and Haryana HC take suo motu cognisance



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