Excerpts from Law Commission report on Law of Arrest

Following excerpts are highlighted from the Law commission report on law of arrest.

The report is currently available at:

https://lawcommissionofindia.nic.in/reports/177rptp2.pdf

2.1 The particulars furnished by various States referred to in Part One disclose the following broad features – (We are also offering our comments with respect to each feature):

1. The number of “preventive arrests” is unusually large. Preventive arrests evidently means arrests made under sections 107 to 110 and 151 CrPC and under local Police enactments containing similar provisions. While the break-up between arrests made under section 151 and sections 107 to 110 is not given, we have to recognize that there is a qualitative difference between them.

2. The percentage of arrests in bailable offences is unusually large ranging from 30% to more than 80%. The material furnished does not show in how many cases of arrest in bailable offences, the accused were immediately released on bail by the Police and in how many cases, they were detained in custody and if detained, for how long. Figures of accused in bailable cases, who remained in custody/bail for their inability to furnish the bail, are also not furnished. Only the State of A.P. refers to this aspect without, of course, furnishing the number of accused so remaining in jails.

3. The percentage of undertrial prisoners in jails is unusually large. The reasons for this may be the delays in concluding the trials in criminal courts, the rigidity of the present law of bail and in some cases, the inability of the accused to furnish bail. In this connection, a fact which has been brought to our notice by a retired DGP relates to the casualness with which the rights of the prisoners are being dealt with by the jail authorities as well as the criminal courts. The Supreme Court directed in two cases ‘Common Cause, A Registered Society’ v. UOI ((1996) 4 SCC 33) and ‘Common Cause, A Registered Society’ v. UOI (1996 (6) SCC 775) that undertrial prisoners whose cases have been pending beyond a particular period should be enlarged on bail or on personal bond. These directions applied not only to cases pending on the dates of those orders but were also effective prospectively. As and when the case of a particular prisoner fell within one or the other direction given in those cases, he has to be released. For this purpose, both the criminal courts and the jail authorities should be vigilant and cooperate with each other. They must constantly monitor the facts of each undertrial prisoner. But this is not being done either because jail authorities do not furnish full and relevant particulars or because the court also does not look into these matters. This may be an additional contributing factor.

4. Many of the undertrial prisoners who were granted bail are unable to avail of the said facility because of their inability to furnish sureties or to comply with the conditions for release. This is a phenomenon which is digging the Indian jails since long number of years in spite of a number of judgments of the Supreme Court.

5. The number of arrests for petty offences is substantial, if not more than the arrests made for serious offences. This is a serious problem which calls for our attention. It is probably this factor which made the Police Commissions to observe that a large number of arrests are unnecessary. 

6. While there is no clarity about the percentage of convictions in the particulars furnished by various States, it is clear beyond doubt that the percentage of conviction is very low in many of the States. This is a very grave problem in our country. In some States like U.P., no trial is allowed to take place until one or more important witnesses are won over. Until then, constant adjournments are asked for and the situation is such that the Presiding Officers are not able to do anything to rectify this situation. A murder trial hardly proceeds to trial on the date it is posted. 

7. The said material fully bears out the statement made in the Third Report of the National Police Commission to the fact that of the arrests made, 60% were either unnecessary or unjustified and that such unjustified Police action accounted for 43.2% of the expenditure of the jails (referred to in Joginder Kumar v. State of U.P.). And those are 20-year old figures. Position today cannot be better, if not worse.

I will only offer a single suggestion in this related to Pt 3 above:

There's a need to digitize all the records and put them for public access. Anyone should be able to see how many people are lodged in any jail, under what sections and other details related to the case like date since arrest, any parole/bail and subsequent arrest, progress of case - how many dates conducted, details of rejection of bail etc. Any private information may be hidden. There's a lot of power in transparency and is the only way to clean the dark and rotten system.