Friday, November 28, 2014

Arrests, Bail, and the Criminal Procedure Code

A quick run--through basic Indian criminal procedure. The Criminal Procedure Code 1973 [Cr.P.C.] creates two parameters for understanding an offence: (i) whether it is cognizable/non-cognizable, and (ii) whether it is bailable/non-bailable. These are defined in Section 2. Bailable offences are those made bailable [Section 2(a)], cognizable offences are those where police can arrest without warrant [Section 2(c)]. Vice-versa in case of non-cognizable offences [Section 2(l)]. 

The First Schedule to the Cr.P.C. 1973 lays out whether offences are cognizable/non-cognizable and bailable/non-bailable [Found at the fag-end of the statute]. Every offence under the Indian Penal Code 1860 [IPC] is covered in Part A/Part I, whereas "Classification of Offences Against Other Laws" is the subject of Part B/Part II. The classification in Part B/II is obviously overridden where a special statute deems an offence to be either cognizable and/or non-bailable [see, Section 37(1)(a), NDPS Act 1988].

Searching for a Rationale
Now, it should be clear that this classification of offences is quite important. Powers of arrest are severely curtailed in respect of non-cognizable offences, where police require a warrant from the Magistrate. Similarly, the right of an individual to bail is severely limited in non-bailable offences, as can be seen from the stricter standard employed while deciding bail for these cases under Section 437, Cr.P.C. This prompts the question: how does the Legislature decide upon the classification

Look again at the Cr.P.C. with this question in mind. Those definitions will now appear particularly unhelpful. In fact,nothing in the Code provides any rationale behind how offences are classified in the manner that they are. The 41st Law Commission Report, which paved the way for the 1973 Code, again does not provide any explanation.  What about cases, you ask: little luck there as well. No Supreme Court decision has provided any logic behind the classification exercise yet. 

Everyone seems to Forget about Part B
I did come across High Court cases, and one may read Subbulakshmi v. State [(1993) 1 MWN (Cri) 268]. The Madras High Court believed the distinction between cognizable and non-cognizable offences was based on gravity of offences. Thus, serious offences like murder [Section 302 IPC] are cognizable, while others like "Making atmosphere noxious to health" [Section 278 IPC] are not. This, however, is squarely contradicted by the 177th Report on Law Relating to Arrests. The Commission spends nearly half a page (!) to give us the logic behind classifications:
  • The cognizable/non-cognizable distinction is not based on gravity of the crime or quantum of punishment, but upon the need to arrest the person immediately [Page 23, last paragraph onwards]
  • The bailable/non-bailable distinction is by and large based on the "gravity of the offence (which necessarily means the quantum of punishment prescribed thereof)" and the need to keep offenders in jail pending investigation [Page 24].
The Law Commission gave this explanation responding to claims that the classification is bogus [for instance, see, KG Balakrishnan, "Criminal Justice System-Growing Responsibility in Light of Contemporary Challenges" (2010) 7 SCC J-3]. I, for one, remain unconvinced. All the Law Commission achieved was explaining classification of IPC offences under Part A. The same logic cannot extend to Part B, for the very basis for classifying offences into cognizable/non-cognizable under Part B is the quantum of punishment! Have a look:
  • Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years are made cognizable and non-bailable;
  • Offences punishable with imprisonment for 3 years, and upwards but not more than 7 years are made cognizable and non-bailable;
  • Offences punishable with imprisonment for less than 3 years or with fine only are made non-cognizable and bailable.
Does this Matter? Yes, it does
Well, not everybody has forgotten Part B. Legislatures (state and central) have certainly kept in mind that offences punishable with 3 years are cognizable and non-bailable. This has led to a host of laws carrying offences with a maximum term of 3 years imprisonment. For instance, the following are cognizable and non-bailable offences, which means you can be arrested without warrant, and denied bail:
  • Making unauthorised constructions, repairs, modifications to your house. Section 43, Maharashtra Regional and Town Planning Act 1966;
  • Posting, inter alia, offensive [nobody knows what it means] messages online. Section 66-A Information Technology Act 2000;
  • Obstructing the doors of a closing Metro train. Section 67, Delhi Metro (Operation and Maintenance) Act 2002;
  • Disturbing a gathering while they sing the national anthem. Section 3, Prevention of Insults to National Honour Act 1971;
  • Failing to comply with any provisions of the Environment Protection Act, Rules or Govt. Orders [more than a 100]. Section 15, Environment Protection Act 1986;
  • Offences [including unconscious possession of drugs] under the NDPS Act, 1988.
Some of these are undoubtedly cases where intuitively the need for immediate arrest is apparent: e.g. NDPS Act. But, the same cannot be said for them all. Conferring powers of easy arrest also carries the possibility of easy misuse. This was highlighted in context of Section 498-A by the Supreme Court recently in Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273]. It also indicates the token regard for individual liberty held by the Legislature.

Some courts have tried innovative approaches to exclude offences punishable with a maximum of 3 years imprisonment from being cognizable and non-bailable [see, Subhash Chaudhary v. Deepak Jyala, 2005 Cr.L.J. 1034 (Bom HC)]. But that is not the solution. There is an urgent need to either provide some over-arching basis for the classification of offences, or perhaps delete Part B of Schedule I altogether.

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