From times immemorial, it has been accepted that the enforcement of the law for the maintenance of peace and tranquility in the society has to be entrusted upon certain individuals or agencies. This was considered as a prerequisite to the survival of a society because without such determined agencies to enforce the law, the society would be in a complete chaos with every person having unrestricted authority to do what he wants. This point was also illustrated by H.L.A. Hart [2] where he staged a primitive society with rules of obligation preventing violence, theft and deception. While such rule apparently existed, he himself pointed out the defect of the same model as determining when such rule has been broken. He called the absence of an authority to enforce punishments, or sanctions on people who break the rule a bigger defect, and one which had the ability to disturb the entire society.
The situation today is no different than it was in Hart's imaginary primitive society. Today we have a number of law enforcing agencies. However the efficiency and effectiveness of these agencies depend largely on assistance and cooperation of the society, i.e. the public at large. The Criminal Law in almost all countries has provisions for ensuring the assistance of public to the law enforcing agencies. While a few countries make this assistance a legal obligation on the public in certain circumstances, others offer the individuals incentives in some form to convince them to assist the agencies.
In the course of this paper, we will briefly discuss some international provisions in this regard and then move on to the Indian perspective, i.e. the Code of Criminal Procedure.
International Provisions
The criminal procedure laws across the world have accepted and identified the need to emphasize on the importance of public assistance and support to the enforcing authorities to maintain order and peace in the society.
While most criminal jurisdictions accept the same, they have different methods to draft the same in their codes. While the mode of enforcing the same is different, in some cases even the degree of public assistance required is different. We here will deal with a few national jurisdictions across the world to bring out this difference.
The French Republic has put a legal obligation on its citizens to take action to prevent any felony, misdemeanor against the bodily integrity of a person. The Criminal Procedure Code of the French Republic, Article 223-6 reads "Anyone who, being able without risk to himself or to third parties to prevent by immediate action a felony or a misdemeanor against the bodily integrity of a person, willfully abstains from doing so, is punished by five years' imprisonment and a fine of € 75,000." [3] This means that the citizens are under a legal obligation to prevent any crime which they can without endangering themselves, and are punished on the failure to do the same as per the Article mentioned above. The interpretations of the same have been held that it is natural that under the section the most important mode of preventing any crime as mentioned in the section is to assist the police authorities by informing them and helping them when required. [4]
The Criminal Code of the Republic of Albania is slightly different from the rest of the world in its provisions. In addition to the general obligation on the citizens to indicate the authorities of the committing of any crime, the citizens also take part in the dispensing of justice to the offenders under the criminal law of the country. This is done by conducting a "Social Enquiry" under Chapter 13 of the Code. "The purpose of such inquiry is to obtain information concerning the personality, social circumstances and future prospects of the person charged for use in deciding the case." [5] The information so acquired by the authorities is used in determining the kind of sentence or punishment that is afforded to the accused.
The United States of America (USA hereinafter) on the other hand does not cast a legal obligation on individuals to assist the police or the other law enforcement authorities in curbing crime. On the other hand, the USA rewards citizens who inform the authorities of certain crimes committed in the society. Under the U.S. Code, Title 18, titled Crimes and Criminal Procedure Code, under § 3071, marginal note- Information for which rewards authorized [6] lays down certain offences for which, on informing the authorities about, the citizens are rewarded by the Attorney General on his discretion any amount of money.
Without delving any further, the author would now like to look into the Indian context, which he deals with in the next chapter.
Indian Perspective
The Indian Penal Code, 1872 ("IPC" hereinafter) lists out the various criminal offences in India, while the Code of Criminal Procedure 1973("CrPC" hereinafter) lays down the procedure for proceeding in a criminal trial. The CrPC is an exhaustive code dealing with the procedure to be followed in every stage of a criminal trial.
While dealing with the duties and powers of the enforcing agencies, being the police authorities, the magistrates, the public prosecutors, etc., the code also lists a few duties cast on the public in regards to criminal procedure. The author will now deal with them.
CrPC lists certain obligations on citizens to assist the police and magistrates in certain circumstances. The relevant provision was first inserted in the Code of Criminal Procedure, 1898. Section 42 of the Code of 1898 read:
Every person is bound to assist a Magistrate or Police Officer reasonably demanding his aid, whether within or without the presidency-towns:
In the taking or preventing the escape of any other person whom such Magistrate or Police Officer is authorized to arrest;
In the prevention or suppression of a breach of the peace, or in the taking or prevention of any injury attempted to be committed to any railway, canal, telegraph or public property.
The same provision has been drafted in the new code almost verbatim. The new section reads:
37. Public when to assist Magistrates and police.
Every person is bound to assist a Magistrate or police officer reasonably demanding his aid-
(a) In the taking or preventing the escape of any other person whom such Magistrate or police officer is authorizes to arrest; or
(b) In the prevention or suppression of a breach of the peace; or
(c) In the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property.
The Section, i.e. section 37 casts an obligation on the individual to assist the magistrate or police in carrying out their duties under the Act. However the Code only casts an obligation, but does not seek a punishment for the contravention of the same. However the IPC lays down the punishment for the same; Section 182, which reads:
Section 187. Omission to assist public servant when bound by law to give assistance
Whoever, being bound by law to render or furnish assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both;
and if such assistance be demanded to him by a public servant legally competent to make such demand for the purposes of executing any process lawfully issued by a Court of Justice, or of preventing the commission of an offence, or of suppressing a riot, or affray, or of apprehending a person charged with or guilty of an offence, or of having escaped from lawful custody, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
Hence while S. 37 of CrPC lays down the general obligation, S. 187 of IPC makes it punishable hence making it a legal obligation carrying with it a punishment on the contravention of the same. The author wishes to deal with S. 37 of the CrPC in detail.
S. 37 casts the legal obligation on "every person". Person is not defined under the CrPC, but it is understood to include both citizens and non- citizens within the jurisdiction of the CrPC. Further it is also understood to include "any company or Association or body of Persons, whether incorporated or not" as mentioned in the definition of person in IPC. [7]
Next as per the Section the magistrate or police officer must demand the aid of the person. So the obligation is cast on a person only when the officer or the magistrate demands the same from the person. Further the assistance the police officer or magistrate seeks to demand for must have some direct personal relation to the execution of his duty. [8] Any voluntary assistance on the part of the public will not be covered under this section, and hence is not punishable u/s 187 of the IPC.
The wording of the section only covers assistance by any person to the police officer or magistrate. This implies, and has been interpreted by the courts, that the obligation is only to assist, and not to play police. In one of the most important cases relating to the relevant section, being Emperor v. Hafiz [9] , the High Court was called to decide upon the requisites of the section (Section 42 then). In his judgment, Davis C.J. held that "every person is bound in certain cases to assist a Police Officer in the taking or preventing the escape of any person whom the Police officer is authorized to arrest, but the section contemplates that the Police Officer is himself present to make the arrest." [10] The judge went on to state that the police officer is not empowered to direct private persons to arrest any person for him. [11] In the same case, Haveliwala A.J.C, while concurring with the Chief Justice, held "What the section contemplates is that a Police Officer may reasonably demand the aid of any person in the taking or preventing the escape of any other person whom such police officer is authorized to arrest." [12]
The next and probably the most important requirement of the section is that the demand by the Police Officer or the Magistrate must be reasonable. As has been seen in almost every branch of law, there can be no one definition of "reasonable" and it varies from situation to situation. Similarly no one definition can be afforded to the term here and hence it must depend on the circumstances. In his judgment in the Hafiz Murid case [13] , Haveliwala A.J.C, emphasized ".. this means that the police officer himself should be present when effecting the arrest and if then reasonably requires the aid of any person, that person would not only be justified, but bound to assist such officer.." This judgment makes it clear that the requirement of the police officer or magistrate under this section for the aid of any person must be reasonable and not unreasonable. An important case on this point is the Bakshi Ram case [14] . Pearson, J. in his judgment held that the order given to a landholder by a magistrate to find a clue to a theft was not reasonable and hence would not be covered under this section. He said that the duty of the public is only to assist the Police or the magistrate and not go beyond that. In another important case, Emperor v. Jyoti Prasad [15] , it was held that an order of the police officer calling upon members of the public to join them in arresting a number of unknown persons, whose whereabouts were not know is illegal, and the refusal on the part of the public to such assistance is justified. A police officer demanding a chowkidaar to block a certain path so that the accused cannot escape from that route is held to be reasonably demanded assistance and was upheld by the court. [16]
The basic requirement is that the assistance demanded must be reasonable, and it has been held the order of any police officer or magistrate to call upon any person to perform any duty, for which he is paid, will not fall under this section. [17] This view was reiterated by Sinha, J. in Amarendra Nath v. State of Bihar [18] where he held that an order by a police officer to any person to do something which he was duty-bound to do, and for which he was paid would be illegal and would not fall under this section.
The term "reasonable" assistance has been interpreted to include assistance in the search of a place u/s 100 [19] of the CrPC [20] and also assistance in removing an arrested person who refused to move. [21] Further only the personal assistance can be demanded of persons by the police officer or the magistrate, and not a contingent of men. [22] Such demand of the police officer in the case was held to be unreasonable, and hence held illegal.
For there to be a legal obligation on the part of the person from whom the assistance is demanded, certain conditions must be fulfilled. Firstly, the police or magistrate demanding such aid must be legally competent to carry out the function for which the aid is sought. [23] Next the officer must be present at the place where the aid for the arrest is sought. [24] Finally, the person who provides the aid on the demand of the police must not use more force or commit injury more than what is required for such aid. [25]
Finally it must be mentioned that u/s 187 of the IPC, the refusal, or "intentional omission" to aid the police or the magistrate, is an offence is punishable with an imprisonment of a period not exceeding one month, or fine of rupees two hundred, which might extend to six month, or rupees five hundred in cases where the office or the magistrate, reasonably demanding their assistance is legally empowered to do so.
Conclusion
While it is clear that the purpose of S. 37 of the CrPC and of the other similar provisions across the world is to try and ensure that the public do not refuse assistance to the police, the punishment or the fine accorded in the IPC, S. 187 seems too inadequate and insufficient. This is brought into focus more prominently when compared with those in the other jurisdictions. As has been noted above [26] , the French Republic has imposed a maximum punishment of five years and a punishment of € 75000. This when compared to the one month (or six months) and Rs. 200 (or Rs 500) seems more justified because any person may refuse to assist the police considering the inadequate punishment he might be afforded, while the same in France is much higher, making it less likely that the demand for assistance in France will be refused, or omitted. This having being said, it must be amended and the punishment and the fine both must be increased substantially to convince people to provide assistance more willingly.
