In light of three recent Supreme Court judgements which held that immediate arrest of the accused is not mandatory in all cases, the Director General of Police (Maharashtra) has issued a standing order instructing all state police personnel to exercise restraint and observe presumption of innocence before making an arrest. The order clearly states that failure to comply will attract disciplinary action as well as contempt of court charges.
The standing order, signed by DGP Rajnish Seth, Maharashtra Police, was issued on July 20 and is based mainly on the SC judgement passed in the Arnesh Kumar Vs State of Bihar case, which stated that arrests should be an exception in cases where the punishment is of seven years of imprisonment or less.
While the judgement was passed in connection with cases of harassment of wives for dowry, the SC had stated that the same rule applies to all cases punishable with seven years or less of imprisonment.
Since then, there have been two more judgements by the SC and one by the Delhi High Court reiterating the fact that there should be no undue haste on part of the police to arrest the accused in such cases.
Seth, in the Order, has reminded all police personnel that arrests in such cases should only be made after seeking due approval from a judicial magistrate. Further, the magistrate is also bound to peruse the facts of the case and decide accordingly.
"The consequence of non-compliance shall certainly inure to the benefit of the person suspected of the offence. Resultantly, while considering the application for enlargement on bail, courts will have to satisfy themselves on due compliance of this provision. Any non-compliance would entitle the accused to a grant of bail," the Order reads.
The Order also remind the police personnel of the rights of the accused or the suspect, and states that a notice under provisions of the Code of Criminal Procedure (CrPC) be issued to the accused, both while arresting or when deciding to not arrest but call the accused for inquiries.
Further, the accused has the right to seek an acknowledgement of his or her cooperation from the concerned police station or unit, but at the same time, the conditions laid down in the notices will also be equally binding on the accused, the Order states.
Seth has further instructed senior officers, like Assistant Commissioner of Police, Deputy Commissioners of Police, and Commissioners of Police to closely supervise this procedure personally."It may be appreciated that the investigating officers are liable to disciplinary action or to contempt of court for non compliance of the guidelines and supervisory officers can also be held liable," the Order states.