Stop routine arrests: SC to high courts, DGPs

SC directed all HCs, DGPs to issue instructions to stop arresting people in cases where alleged offences carry a maximum punishment of up to seven years.

Stressing on the values of personal liberty and its centrality, the Supreme Court on Monday directed all high courts and director generals of police (DGPs) of states and Union territories to immediately issue instructions to stop arresting people routinely in cases where alleged offences carry a maximum punishment of up to seven years in jail.

The bench, in its order, borrowed from some of the old judgment of the Supreme Court, holding that merely because an arrest can be made because it is lawful does not mandate that arrest must be made. (PTI)

Lamenting rampant violations of the apex court’s 2014 judgment that asked police not to mechanically arrest people, the court ordered the directions issued in its previous judgment will be modelled as notifications and guidelines to be circulated by all high courts and DGPs to district court judges and police authorities.

A bench of justices S Ravindra Bhat and Aravind Kumar cited the Supreme Court judgment in Arnesh Kumar vs State of Bihar, laying down that investigating agencies must refrain from arresting the accused for offences entailing punishment of up to seven years in jail without explicitly specifying the need to do so. A trial court shall not approve the detention unless satisfied by the reasons cited by police, the 2014 judgment had said.

India has a large number of people languishing in prisons, waiting for investigation or trial to be concluded. According to the data compiled by the National Crime Records Bureau (NCRB) for 2021, out of 5.54 lakh prisoners, 4.27 lakh of them were under trial prisoners. Their share has increased to 77% by the end of 2021 from 66% by the end of 2012.

Deciding on a case of bail by a man charged with dowry harassment offences, the bench on Monday pointed out that the top court has in a long line of cases highlighted the values of personal liberty in the context of applying discretion to grant bail. Ordinarily bail ought to be granted, said the court, adding that in serious cases involving alleged offences carrying long sentences or other special offences, the court should be circumspect and careful in exercising discretion.

“The paramount considerations in cases where bail or anticipatory bail is claimed are the nature and gravity of the offence, the propensity or ability of the accused to influence evidence during investigation or interfere with the trial process by threatening or otherwise trying to influence the witnesses; the likelihood of the accused to flee from justice and other such considerations. During the trial, the court is always in control of the proceedings, and it is open for it to impose any condition which it deems necessary to ensure the accused’s presence and participation in the trial. The court must, in every case, be guided by these overarching principles,” it noted.

The bench, in its order, borrowed from some of the old judgment of the Supreme Court, holding that merely because an arrest can be made because it is lawful does not mandate that arrest must be made. These decisions, it said, provide useful and valuable guides with respect to the powers of police, the discretion and duties of the court in several kinds of cases, including those relating to the matrimonial offences such as section 498A (dowry harassment) of the Indian Penal Code, and other cases.

Noting that the Jharkhand high court in the present case had failed to follow the dictum of the Arnesh Kumar judgment when it refused the bail to the petitioner, the bench granted bail to the petitioner, adding that it must also direct all the courts seized of such proceedings to strictly follow the law laid down in the 2014 judgment.

“High court shall frame the above directions in the form of notifications and guidelines to be followed by the sessions courts and all other and criminal courts dealing with various offences. Likewise, DGPs in all states shall ensure that strict instructions in terms of the above directions are issued. Both the high courts and the DGPs of all states shall ensure that such guidelines and directives/departmental circulars are issued for guidance of all lower courts and police authorities in each state within eight weeks from today,” it directed. The bench further asked all high courts and state governments to submit their affidavits of compliance within 10 weeks.

Last November, the Supreme Court had called upon the Union government to consider framing a new law to facilitate the grant of bail and usher in objectivity in the criminal justice system to ward off unnecessary arrests, especially in cases where the maximum punishment under the alleged offence is up to seven years in jail.

Dealing with a matter where an accused was sought to be arrested after completion of the probe although he was not taken into custody during the investigation, a bench led by justice Sanjay Kishan Kaul had said India should never become a “police state” where investigating agencies act like vestiges of the colonial era.

Issuing a slew of directions for the investigating agencies and the subordinate courts on arrests and grant of bail, the bench underlined that the persons accused with the same offence should never be treated differently, either by the same court or by different courts, and that even an exercise of judicial discretion cannot justify any violation of equality before the law.

The court, in its November judgment, rued that jails in the country are flooded with under trial prisoners since a large number of arrests are made by police as a matter of routine and then the courts end up dealing with the bail applications in a “negative sense”. This bench, at the time, had also issued a slew of directions for the investigating agencies and the subordinate courts on arrests and grant of bail.

Both these Supreme Court orders envisage revamping the criminal jurisprudence in the country at a time when various arrests and long pendency of bail applications have raised serious questions over the objectivity and efficacy of the judicial approach to such matters. The redressal, however, may eventually lie in changing the mindset of the investigating agencies and judges of the trial courts.