Restraint on Discretionary Power of Arrest Possessed by Police

Prachi Kumari, Student, Law School, BHU, Varanasi

Demo_arrest,_handcuffedHonourable Supreme Court in recent judgment of Arnesh Kumar V State of Bihar and Ors. (({Criminal Appeal No.-1217 0f 2014 and Special Leave Petition(CRL.) No.-9127 of 2013 (Supreme Court, 02/07/2014)})), expressed its view that police has not come out of its colonial image despite six decades of independence; it is largely considered as a tool of harassment, oppression and surely not considered a friend of public.

Therefore, the apex court restrained police from mechanically arresting the husband and his relatives on mere lodging of a complaint under section-498A of the Indian Penal Code, 1860. Now, the Police are required to satisfy the necessity for arrest under the parameters provided under Section 41 of the Code of Criminal Procedure, 1973.

Although, Section 41 of the Code of Criminal Procedure, 1973 contains element of discretion for a Police officer making arrest by incorporating the words ‘reason to believe’ or ‘satisfaction’ etc., mechanical arrest of persons against whom complaint is made, has been in practice in India. That is why, Chandramauli Kr. Prasad, J. moved to reiterate the relevance of section-41 of the Code of Criminal Procedure, 1973.

The abovementioned view of Supreme Court shows that police has earned negative fame only and discretionary power of arrest possessed by the police has often been misused or abused.

The recent judgment is an effort to prevent the abuse and misuse of power of arrest possessed by police. The guidelines given in this case read with guidelines given in previous cases like Joginder Kumar V State of U.P. ((AIR 1994 SC 1349)),Smt. Nandini Satpaty V P.L. Dani ((AIR 1978 SC))and D.K. Basu v. State of West Bengal ((AIR 1997 SC 610))may emerge as a tool of controlling police discretion, because it specifies what an officer must do and must not do in certain situations. It also specifies where an officer must properly exercise discretion.

However, I am of the view that discretionary power of police should not be restrained. Since it is not possible to cover every situation; police may fall in while discharging duty, in a rule book, there must be element of discretion in the powers given to police.

Common tendency of every society is to blame police for every wrong. While blaming the entire police community, why do we forget that police have done some great job for the country as well and have sacrificed their lives for our safety, be it terrorist attack on parliament or terrorist attack in Mumbai. They are the soft target groups for Naxalists or any other anti-social group. They are receiving low salary for hard work. They have to act like puppet in the hands of some influential political leaders, but their voice is not raised at national level since police service is under control of state Governments.

At this juncture, if police is left with no discretion, their condition would be more pathetic. Besides this, we will get robots in the place of human beings. This profession is already losing its charm; restraint on discretionary powers would forbid talented and skilled persons from joining this profession. Undoubtedly, some restrictions are required to prevent arbitrary use of power, but restrictions on discretionary power of arrest possessed by police should be imposed with care and other facilities should also be given to police. Restrictions are not the way to improve the colonial image of police.