Drafters should consider a probable cause standard of arrest, which allows police to arrest and detain an offender if they determine that there is probable cause that a crime has occurred even if they did not witness the offence. (See: Minnesota 518B.01 subdv. 14(d)(2)(e) and law of South Carolina, Sec. 16-25-70 (A))
See: Law Enforcement Reform Efforts, StopVAW, The Advocates for Human Rights.
Laws should not allow for anticipatory bail in dowry-related and domestic violence cases involving high-level injuries or lethality or in dowry deaths.
Example: In Samunder Singh v. State of Rajasthan, AIR 1987 SC 737, the Supreme Court of India ruled that anticipatory bail, which allows a suspect to seek bail in anticipation of an arrest for the commission of a non-bailable offense, was improperly granted to the defendant in the case of a dowry death. The judge stated that the High Court improperly granted anticipatory bail when would likely give rise to prejudice by its nature and timing. In this case, concerning the unnatural death of a woman in her father-in-law’s home, the Court stated “the High Court should not have exercised its jurisdiction to release the accused on anticipatory bail in disregard of the magnitude and seriousness of the matter.”
CASE STUDY: Article 41 of India’s Code of Criminal Procedure authorizes a police officer to make a warrantless arrest of anyone “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.” These include offenses concerning physical and mental cruelty to woman by husband and in-laws (Article 498A), criminal breach of trust for entrustment of dominion, for misappropriation of personal property by husband or in-laws (Articles 405), dowry death (Article 304B), abetment of suicide (Article 306), and attempted murder (Article 307). But note that offenses committed under the
Dowry Prohibition Act are non-cognizable and require a Magistrate order for arrest. In M.C. Abraham v. State of Maharashtra (2003) 2 SCC 649: 2003(1) RCR (Criminal) 453 (SC), the Court held that discretion to arrest should be exercised cautiously in a cognizable offense, with regard to the nature of the crime and type of person accused; the court lacks authority to order police to arrest when an investigating officer decides not to make an arrest, and; rejection of anticipatory bail does not constitute a reason for immediate arrest.
Laws should focus grounds for arrest on probable cause and on creating simple and comprehensive arrest authority to facilitate decisive intervention in arrest decisions and diminish the influence of discretionary factors. For example, in cases involving simple or minor injuries, "probable cause" arrest policies allow police officers to make arrests based on the presence of evidence (such as damaged property, visible injuries, or a frightened woman) that would lead to the conclusion that an assault had occurred. Creating broad authority, such as a presumptive arrest, would authorize arrest of perpetrators of violence unless there are “clear and compelling reasons” not to arrest. (See: Family Violence: A Model State Code, Advisory Committee of the Conrad N. Hilton Foundation Model Code Project of the Family Violence Project, 1994, Section 205(A), Commentary)