The worrisome discourse on the use, abuse and misuse of arrests under Section 54 of the Criminal Procedure code, primarily a procedural legislation for facilitating investigation and trial of criminal cases, continues to attract public attention. A pragmatic appreciation of the subject would perhaps require a description of the actual phrasing of the connected piece of legislation. The relevant part of Section 54 as it appears in the statute book is as under:
54. (1) Any police-officer may, without an order from a Magistrate and without a warrant, arrest: first, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned; secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; thirdly, any person who has been proclaimed as an offender either under this Code or by order of the State Government; fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; fifthly; any person who obstructs a police-officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody.
One can see that the above Section gives wide powers to the police and ought to be rigorously construed. The object of the code is to give the widest powers to the police in cognizable cases, and the only limitation is the necessary requirement of the reasonability and credibility to prevent the misuse of powers.
The words “may arrest” show that the power of arrest is discretionary. A police officer is not always bound to arrest people for cognizable offenses. This Section gives wide powers to a police officer to make an arrest without an order from the magistrate and without warrant only in certain circumstances limited by the provisions contained in this Section, and thus, it is necessary to be cautious and circumspect in exercising such powers.
What is a reasonable complaint or suspicion must depend upon the circumstances of each particular case, but it must at least be founded on some definite facts tending to throw suspicion on the person arrested, and not merely on a vague surmise or information. Still less have the police any power to arrest people, as they sometimes appear to do, merely on the chance of something being thereafter proved against them.
The words 'credible' and 'reasonable' must have reference to the mind of the person receiving the information, and such information must afford sufficient materials for the exercise of an independent judgment at the time of making the arrest.
The existence of tangible legal evidence within the cognizance of the police officer is crucial and he must judge whether the evidence is sufficient to establish reasonableness and credibility of the charge, information or suspicion.
The legislature has made it plain that it is not enough if a police officer just receives a complaint of a cognizable offence; he should go into it and should have grounds for determining that it is reasonable. Again it is not enough for him to get information; he should see whether it is credible information. He can't just have a suspicion; it should be founded on some definite fact other than the officer's own personal feelings, before the police officer can lawfully arrest a person under Section 54.
From a literal reading of the law, one may not be able to make much of an issue, but the real problem lies in the application of the law on ground. There is no denying that both law enforcement personnel and the lower judiciary have failed to control or lessen the ill effects of indiscriminate action under Section 54.
So far as police officers are concerned, the register for enquiry under Section 54 maintained at police stations has not been properly supervised. Every enquiry of arrest under Section 54 needs to be disposed of within fifteen days and if no specific case is made by then, the arrestee has to be discharged. This has not been ensured. The majority of such arrests lead to no case being made against the arrested persons. However, for unlawful arrest or damage in terms of liberty or honour, no police officer is charged.
As far as the subordinate judiciary is concerned, the provision of bail for arrests under Section 54 is considered mandatory, unless the subject has been shown as 'unidentified'. Arrest under Section 54 for prosecution under preventive detention cannot be entertained. Preventive detention requires specific evidence.
This writer is of the considered view that if superior police officers and members of subordinate judiciary apply their mind, assert their authority and decide to act proactively, the abuse and misuse of Section 54 of the Criminal Procedure Code can be substantially controlled to the relief of hapless citizens.
The writer is a columnist of The Daily Star.