6 min readMay 26, 2024 06:02 PM IST
First published on: May 26, 2024 at 06:02 PM IST
The Supreme Court declared that Prabir Purkayastha’s arrest by the police, judicial remand by the court of first instance and thereafter, the judgment of the High Court, confirming the arrest, were all “invalid”. The judgment is clear, written in simple language and asserts the fact that constitutional protection cannot be ignored in the process of detention.
The noteworthy aspect of the judgment is that it holds that the grounds of arrest must be supplied at the time of arrest or soon after but before the detainee is produced in the court of first instance. In financial crimes related to PMLA or those under the UAPA, there are many cases of prolonged pre-arrest investigations. During such investigations, if the police decide to arrest a person, they should have the grounds of arrest, and a copy of FIR ready to be delivered at the time of arrest. Why should the police officials act in haste, as they did in this case?
Secondly, in a city like New Delhi, the accused can be given a reasonable notice period before the person is to be produced before the court to seek authorisation for detaining the accused for more than 24 hours. The other issue relates to “communicating” the grounds of arrest in a language that an arrestee understands. For example, the police cannot take a plea that they had explained or orally translated the grounds of arrest. Hence, the Court takes the issue seriously that the purpose of “communication” is effective and purposeful to avoid infringement of this right guaranteed under Article 22(5) of the Constitution.
This was a case of irregularity during the arrest. Many such irregularities occur, depriving personal liberty and do not reach the highest court. Even if they do, it takes so much time to deal with the matter that the situation on the ground changes in the meantime. As a result, the focus on correcting the irregularity and passing corrective orders is lost and the changed legal scenario becomes a matter in the broader arguments.
In Purkayastha’s case, the Court has rightly applied the legal provision as it stands; without getting influenced by the fact that subsequently, the arrestee was supplied with the document and the chargesheet had been filed. As a general rule, matters of personal liberty, in the background of such alleged irregularity, should not be influenced by the changed legal scenario.
Detention of a citizen is among the most serious acts undertaken by the State. It takes away the right to personal liberty and can be a source of embarrassment vis a vis the family and society. The person so deprived must also face the wrath of police interrogation, and often end up in jail. In Arnesh Kumar (2014) the Supreme Court has categorically stated that “arrest brings humiliation, curtails freedom and casts scars forever”. It also said that the police’s power to arrest greatly contributes to its arrogance and also the failure of the magistracy to check it. In fact, it said that the power of arrest is also a source of police corruption. Multiple Law Commissions, Police Commissions and judgments have emphasised the need to maintain a balance between individual liberty and societal order while exercising the power of arrest.
In this background, when the police detain a person, the first duty of the court of first instance is to examine the basis of arrest, fairly ensure the compliance of constitutional and statutory safeguards available to the detainees, and possible misuse of police power in detaining the suspect. Sadly, the police frequently detain persons in haste and the courts of first instance, generally mechanically give remand without reflecting a sense that every detention is a constitutional law issue.
The Code of Criminal Procedure states that on reporting a serious offence, the police are bound to register an FIR. The Supreme Court, in Lalita Kumari (2014), stated that the registration of FIR is mandatory and no preliminary inquiry is permissible when a serious offence is reported. The police officer cannot avoid his duty of registering the offence if a cognisable offence is disclosed. The Court recorded that action must be taken against erring officers who do not register the FIR if information received by them discloses a cognisable offence.
We don’t realise the gravity of these violations because not even one in one thousand detainees challenge wrongful detention. Not all the cases against non-registration of FIRs reach the court. When they do, they must get attention in a strict sense rather than treating the police as a litigant participating in civil litigations.
India has been legislating “special” criminal laws. Purkayastha’s case falls under one of them. Now we have three Criminal Codes, which will soon become the law of the land. But the question remains as to whether the working culture of police, the use of its power to arrest individuals, undertaking investigation at an appropriate time considering the nature of the alleged offence, and their hostile behaviour with common citizens will change. I do not see it happening under the new set of laws.
Laws will not fix police accountability. The solution is to have a conversation and then implement an accountability mechanism.
The writer is advocate-on-record, Supreme Court of India
In Purkayastha’s case, the Court has rightly applied the legal provision as it stands; without getting influenced by the fact that subsequently, the arrestee was supplied with the document and the chargesheet had been filed. (File) 
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