Government Law Policy

Undue Process

"It is an unfortunate reality of contemporary India that “due process” is often ignored and material irregularities are condoned."
By Nikhil Borwankar

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Taking cognisance of the gravity of the issues raised in a Public Interest Litigation, the Delhi High Court issued notice to the Lieutenant Governor, the Police Commissioner and, on its own motion, to the Registrar General of the High Court yesterday. The petitioner has sought to highlight the gap between the spirit of the law as determined by the Supreme Court in its judgment in the Arnesh Kumar vs. State of Bihar routine [(2014) 8 SCC 273], and the lackadaisical implementation of its directions by Police.

The Supreme Court, recognizing that, “arrest brings humiliation, curtails freedom and casts scars forever,” observed that the 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. The need for caution in exercising the drastic power of arrest has been emphasised time and again by Courts but has not yielded the desired result.” The SC further observed that, “the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.”

Based on these observations, the SC noted that, “Another provision i.e. Section 41-A of the Code of Criminal Procedure (CrPC), aimed to avoid unnecessary arrest or threat of arrest looming large on accused, requires to be vitalised.” The said provision was inserted by Parliament through an amendment in 2009, to place an additional check on the power of arrest without warrant that is vested in the Police through Section 41 of the CrPC. The SC then opined, “We are of the opinion that if the provisions of Section 41 of CrPC, which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed, and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce.” The Court stated that, “Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily, and Magistrates do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction: All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the Indian Penal Code (IPC) is registered, but to satisfy themselves about the necessity for arrest under the parameters laid down above, flowing from Section 41 of the CrPC.” The SC also added that “the directions aforesaid shall not only apply to the cases under Section 498-A of the IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years, or which may extend to seven years; whether with or without fine.”

Thus, the Supreme Court concluded with the directions that in cases where the offence alleged is punishable by imprisonment of seven years or less, the police shall first issue a notice under section 41-A CrPC to be served on the accused to join the investigation. In the event that the accused fails to join the investigation despite service of the 41-A notice, the police may exercise its power to arrest. Thus, the police can no longer arbitrarily wield its power of arrest to harass the accused. This was a landmark judgment for advocates of the doctrine of “due process”.

It is an unfortunate reality of contemporary India that “due process” is often ignored and material irregularities are condoned. Accused persons or witnesses are simply telephoned to join investigations. However, no record of the attendance of such persons is maintained at the police station, and no receipt of his having attended is supplied to him. When the accused applies for anticipatory bail, the Investigating Officer (IO) falsely states in Court that the accused is not joining the investigations, likely leading to denial of bail. Furthermore, when an accused lodges a complaint against the IO for misleading the Court and suppression of the fact of his joining the investigations, the inquiry into the allegations is frequently conducted by the same IO against whom he had made the allegations.


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Related: Pune Police Harass Women, Assault Reporter by Vidushi Kala

Such a situation arises primarily because no guidelines exist for the issuance and service of notices under Section 41-A of the CrPC by the police, nor any standardised, impartial method to record and positively confirm the presence of the accused during investigations. Presently, Investigating Officers are not mandated to produce any proof of service of notices under Section 41-A, and lower courts simply proceed on the word of the IO to determine whether or not the accused has joined the investigations. Such a practice is in violation of the directions of the Supreme Court, as well as the CrPC. Even documents produced by an accused that may prove his innocence are rarely taken on record by an IO during investigation.

This practice is particularly pernicious in light of the observations of the Supreme Court in its judgment in the case of State of Madhya Pradesh vs. Sheetla Sahai [(2009) 8 SCC 617], wherein the Court observed that, “It is true that at this stage (of framing of charges) even a defence of an accused cannot be considered. But, we are unable to persuade ourselves to agree with the submission of Mr. Tulsi that where the entire materials collected during investigation have been placed before the court as part of the charge-sheet, the court at the time of framing of the charge could only look to those materials whereupon the prosecution intended to rely upon, and ignore the others which are in favour of the accused. The question as to whether the court should proceed on the basis as to whether the materials brought on record, even if given face value and taken to be correct in their entirety, disclose commission of an offence or not, must be determined having regard to the entirety of materials brought on record by the prosecution and not on a part of it.” If the IO refuses to include documents submitted by an accused in the materials collected during investigation, these observations would be meaningless. In such a situation, the accused has no option but to suffer through trial and patiently await his turn to lead defence evidence, thereby also wasting tax-payer money and valuable time of the Court. At the time of publishing this, no guidelines exist that determine the procedure for taking on record the documents tendered by any person during investigation.

A classic example of this is an ongoing trial in a CBI case, in which the final report and charge-sheet were filed by the CBI in 1984. However, charges were only framed 24 years later in 2008, and the stage of defence evidence – the penultimate stage – has only arrived in June 2017. It is the contention of the accused that at the stage of filing the charge-sheet in 1984, the CBI suppressed information that was vital to the case. Consequently, the accused has had to wait for 33 years for the first opportunity to introduce documents and witnesses in his favour.

Furthermore, the practice of marking a complaint against an officer to the same officer for inquiry violates the fundamental principle of law, “nemo judex in causa sua non potest,” meaning no one should be a judge in his own cause. Evidently, no guidelines exist as to the marking of complaints against Investigating Officers, despite the Supreme Courts judgment in Prakash Singh vs. Union of India [(2006) 3 SCC (Cri) 417], wherein the Court directed the establishment of a Police Complaints Commission to look into such allegations.

These issues, among others, were raised by the petitioner in the Public Interest Litigation. The Hon’ble Chief Justice of Delhi High Court has sought the Registrar General’s comments, and also the suggestions of the petitioner in framing new guidelines to address these lacunae in India’s own version of “due process.”


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The author, Nikhil Borwankar, is an Advocate in the Supreme Court and Delhi High Court. He is a notified member of the CBI prosecution team in the 2G Scam trials. His work focuses on criminal and civil litigation, particularly trials and appeals.

Tweet at Nikhil: @nikhilborwankar



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One comment

  1. Police are the mai baap who can take enforceable fundamental rights for granted. unfortunately when Constitutional Courts refuse to intervene that’s when the maai baap become more confident. No heart no soul, that’s how bad things are.

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