NEW DELHI: The
Supreme Court on Monday urged the Centre to frame a law to restrain investigating agencies from arresting the accused unnecessarily saying that indiscriminate arrests reflect a colonial mindset and create the impression of a "police state".
A bench of Justices Sanjay Kishan Kaul and M M Sundresh also appealed to the Centre to frame a new law to streamline the process of granting bail, saying there is a "pressing need" for it and ruled that the regular bail application of an accused had to be decided normally within two weeks and anticipatory bail within six weeks.
It directed all states and Union territories to ensure strict compliance of Section 41 and 41A of the CrPC on the process to be adopted before arresting people.
"Jails in India are flooded with undertrial prisoners. The statistics placed before us would indicate that more than 2/3rds of the inmates of the prisons constitute undertrial prisoners. Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognisable offence, being charged with offences punishable for seven years or less. They are not only poor and illiterate but also would include women. Thus, there is 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 part of the investigating agency, notwithstanding the fact that arrest is a draconian measure resulting in curtailment of liberty, and thus to be used sparingly. In a democracy, there can never be an impression that it is a police state as both are conceptually opposite to each other," said Justice Sundresh, who penned the judgment for the bench.
The bench said the principle that "bail is the rule and jail is the exception" is 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 is a universal principle.
"Even for a cognisable offence, arrest is not mandatory as can be seen from the mandate of this provision. If the officer is satisfied that a person has committed a cognisable offence, punishable with imprisonment for a term which may be less than seven years, or which may extend to the said period, with or without fine, an arrest could only follow when he is satisfied that there is a reason to believe or suspect that the said person has committed an offence, and there is a necessity for arrest. Such necessity is drawn to prevent the committing of any further offence, for a proper investigation, and to prevent him/her from either disappearing or tampering with the evidence. S/he can also be arrested to prevent such person from making any inducement, threat or promise to any person so as to dissuade her/him from disclosing said facts either to the court or to the police officer," it said.
The court said a police officer is duty-bound to record the reasons for arrest in writing and both the elements of "reason to believe" and "satisfaction qua an arrest" are mandated and accordingly to be recorded by him. The bench lamented that provisions and the apex court's earlier order were not being followed by agencies.
"We also expect the courts to come 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 keep in mind the law laid down in Arnesh Kumar (Supra) case, the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance," it said.