There always remains a need to have a balance between the interests of the society and that liberty of the individual. How to achieve this balance is the basic dilemma that is faced while there is implementation of the criminal law. This is required to be followed at every stage of the implementation of the process. These safeguards are provided not only required to be under the Constitution but also under the various procedural laws.
There will be an attempt in this paper to find whether there is such protection provided under various laws. One of the processes that imposes a major threat to the liberty of the individual is that of arrest. This is very much required in various cases for the protection of the larger interests of the society; at the same time, the same law of arrest can be misused by the police for the numerous crimes that may be committed behind the bars of the police station, one of them being the police atrocities.
This may be a gateway crime. As it will be explained in detail, whether the decision as to arrest has to be taken by the Police Officer or the Judicial Magistrate depends upon whether the offence is cognisable or non-cognisable as classified under the first schedule of Cr. P. C. Personal liberty is fundamental guarantee; social security is fundamental social need. These two needs to be balanced. How can the probable misuse by the police force be restricted? Are the existing provisions sufficient?
Scope, object, rights of the arrestee, consequences of illegal arrest and judicial activism, these would be analysed in this project. Arrest of a person leads to curtailment of his or her liberty. But sometimes an arrest of a person may be necessary in the interest of society at large. So one needs to strike a balance between individual's liberty and societal interest. Arrest is a very serious issue as it has the effect of curtailing an individual's liberty. Therefore the power to arrest has to be exercised with care and circumspection.
To make sure that the power to arrest is not arbitrary exercised by the police officer Article 22 of the constitution of India and chapter V of criminal procedure code provides direction for safeguards against arbitrary arrest. But the question to be answered here is whether these provisions fulfil the purpose they are enacted for? The Supreme Court has been very vigilant with regard the issue of arrest because if in a democracy a person is not secured against arbitrary curtailment of one's liberty then the very purpose of democracy is shattered. The Supreme Court has recognized certain right, which are fundamental to the person arrested1.
For example the right to be informed of the ground for arrest, right to be informed of right to bail, right to be produced before a magistrate without delay, right not to be detained for more than 24 hours without judicial scrutiny, right to consult a legal practitioner, right of an arrested indigent person to free legal aid and to be informed about it. It leads to an irresistible conclusion that the power to arrest a person accused of a cognizable offence is not unfettered and registration of a cognizable offence ipso facto does not necessitate arrest.
The question of arrest would not arise until the police officer has reasons to suspect commission of an offence. Normally the Court should not interfere with the process of investigation or the power of the police officer to arrest a person accused of a cognizable offence offences except in rare of the rarest cases and on proof of the fact that the police has not acted reasonably and honestly the court can inquire into the matter. Despite all these safeguards there are innumerable cases of police atrocities.
Torture is regarded by the police officer as normal practice to check information regarding crime to extract confession. Police officer who is supposed to be protectors of the civil liberties of citizens themselves violate precious rights of citizens2. It is committed under the shield of uniform, and the authority in the four walls of the police station at lock up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern.
3 There has been increasing domain of the police in India, from Social, Political, Games, Religion and the same. The justification that is always forwarded is that of the social justice, but these delicate issues can be determined by the bodies like that of tribunal, Courts and the same. The increasing policing are never questioned until the matters reach the Court. All this reflects on one need and that is of increasing regulations over the use of the power by the police.