Last week, a Professor from India's top academic institution contacted  me for some advice.  This is what he narrated to me: His brother, who mostly stays abroad, was experiencing marital discord.  There were several attempts to reconcile over the five years of marriage, but these were unsuccessful.  One fine morning, there was a knock on the door of the Professor and he found a posse of police officers from the city where the estranged wife was residing, accompanied by an officer from the local police station.  The Professor was arrested and taken to the other city for being produced before a court for seeking police remand.  It turned out that his brother's wife filed a criminal case under section 498A against his brother, but had also cited the in-laws in the complaint.  The local police, taking no chances, promptly arrested the FIR-named accused persons, from wherever they were.  According to the Professor, the FIR was a carefully drafted one with the help of an advocate and included completely fabricated material to support the allegations of mental torture and demand of money from the girl's family.  Not only did the Professor himself have to undergo the pain of an unjustified arrest, his 70-year old mother had to frantically seek anticipatory bail.  The Professor had to spend over a month to handle this crisis, resulting in considerable inconvenience to the Institute and his students.

Now, the so-called misuse of this section has been a matter of debate for quite some time now.  There are websites dedicated to this topic and there are some counter-views.  I am not going into that debate at all.  What I would like to refer to is the lack of clear guidelines and oversight on the power to arrest.  Often, the police investigator, on account of the prevailing practice or under pressure from his supervisors/media/society, proceeds to arrest all FIR-named accused persons as the first step of investigation without collecting any evidence to substantiate or refute the allegations contained in the FIR.  When one speaks to the field officers, they say that any delay or informed discretion shown invites severe criticism from a range of interest groups and no one in the police hierarchy is willing to take the heat. 

To me, investigation is a fact-finding exercise, in which arrest and custodial interrogation are necessary in a small percentage of the cases and other cases can be handled with professional investigative techniques.  From a tactical point of view too, the investigator also gets busy in the procedural matters of effecting the arrest, producing the accused before the magistrate, seeking his remand, getting his medical examination done and transporting him from place to place, resulting in further delay in establishing the truth, not to mention unfair and traumatic arrests, such as in the instant case. 

My suggestions in this regard, therefore, are as follows.

1. The police organisations should lay down a detailed step-by-step standard operating procedure which will guide the investigator about evaluating the need for arrest.  There should be a conscious attempt to promote a culture of respect for truth, rather than expediency.  All arrests in criminal investigations should be justified internally through self-speaking documentation and cleared at a sufficiently high level.  In CBI, this is done at the level of the Inspector General of Police.  In local police, this could be at the level of the DCP/SP.
2. The supervisory officers at all levels should show more moral courage in being objective and backing their junior team members.
3. The separation of investigation as a function distinct from maintenance from law and order will promote specialisation and professionalism, resulting in less frequent miscarriage of justice.  The impending police reforms in the country have great significance in this regard.

Many people in the society justify instant arrests on the ground that due to the abysmally low conviction rates, sometimes the detention during investigation is the only punishment the offender undergoes.  However, this militates against the principle that a person is presumed to be innocent till proven guilty by the due process of law.  The reform in the criminal justice system, which will remove such injustice, is thus the most pressing priority before society and the policy makers.  The civil society needs to get involved in the process urgently.