Tuesday, January 20, 2009

Power of arrest in India massively modified

In India, there are very few things most people dread higher than a sudden arrest by a police officer. And instances of policemen hauling away people to jail happen often enough (if you read newspapers, you will find enough stories of people being arrested and led to jail for being accused of various crimes). These powers of the police, typically without restraints or responsibility, have led to rampant misuse. The power of arrest is also used as a way to force people to take certain actions - so, for example, if they want to arrest a criminal, the police has in many cases arrested family members in order to force the accused to surrender; another case is the dowry and women laws, where the threat of police action forces settlements (and is in many cases used by women when they want to get settlements in their favor or harass their family members).
So, now there is a recent amendment to the law governing the power of police to arrest for crime where there is a sentence below 7 years (this includes a number of crimes such as outraging a women's modesty, the 498A, robbery, kidnapping, assaulting the President, and all offences where the applicable punishment is less than 7 years). What does this amendment actually do ? It prevents the police in normal cases from arresting the accused unless the crime was committed in front of a police officer, or if the police believe that the accused being out of prison could affect investigations. In all other cases, the accused will be presented with a notice to be present, and only if the person does not present himself / herself, then the arrest will happen:

Seven years or less is the maximum penalty for a host of offences, including attempt to commit culpable homicide, robbery, attempt to suicide, kidnapping, voluntarily causing grievous hurt, cheating, outraging a woman's modesty and death caused by negligence. The radical change in the CrPC has, however, drawn flak from a number of Bar associations across the country. Lawyers -- who also observed strike in various courts after the bill was passed in Parliament -- argue that the amendment (in Section 41) doing away with mandatory arrest provisions would remove fear from the minds of criminals who would misuse the provisions under the garb of personal liberty.
The law further says that a police officer arresting a person will have to bear his identification badge or tag. Besides, a memorandum of arrest shall be prepared, witnessed and countersigned. The person arrested shall be told that he has the right to inform a relative or friend.

Overall, this would be a good thing. It will remove the current ability of the police, when corrupt, to harass innocents. However, it is true that those who are powerful or wilful offenders will gain to some extent. And a resourceful police force can still utilize some of the discretionary authority they have under this amended law to decide whether a person should be immediately arrested or not.

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posted by Ashish Agarwal @ 10:21 AM