An example of how bad a situation can be when the ‘facilities’ provided for exceptions are made a regular process is the ‘urgent arrest warrant’. Before arresting an accused for any investigation, the police must obtain permission from the court.

However, if there is solid evidence that the offender is absconding or if there is a possibility of destroying evidence, the police can take them under control by issuing an ‘urgent arrest warrant’. However, statistics show that the police are interested in taking anyone into custody without the court’s permission even in normal circumstances.

Kantipur’s analysis of the arrest process of 788 accused in 490 cases registered in the government attorney’s offices of Kathmandu, Lalitpur and Bhaktapur in the month of Falgun has found that 80 percent of the arrests were made without the court’s permission. That is, four out of every five accused in the valley have been detained without the court’s prior approval. The situation in other districts is almost the same. Therefore, there is a need to take a definite position on this issue.

Section 9(6) of the Criminal Procedure Code, 2074 BS gives the police the power to issue an urgent arrest warrant. But this is an exceptional situation. Basically, permission for arrest must be obtained from the court. The sole purpose of doing this is to protect citizens from arbitrary arrest by the state. There is a history of making such a law. Because, before Bhadra 1, 2075 BS, the police would directly arrest the accused and take them to the court to extend the time limit for investigation after 24 hours.

In doing so, the police's action was criticized from the perspective of human rights violation, saying that a large number of people who did not need to be arrested were also arrested. To prevent this, the Code of Procedure, which came into effect from that date, made it mandatory to obtain permission from the court before arresting. However, since the accused could flee or destroy evidence, the provision for urgent arrest warrants was kept open. However, looking at the nationwide statistics, it appears that the police have arrested more than 70 percent of the people without a prior court order.

The most worrying aspect of the statistics is about the arrest of minors. Kantipur's analysis shows that for every 100 minors taken into custody, the police first obtain permission from the court for only two. This trend has also revealed some class and ethnic aspects. The fact that urgent arrest warrants were used for 90 percent of Dalit accused, 87 percent of Tharus, 81 percent of Janajati, and 72 percent of Khas-Arya has shown this. Such data suggests that such arrests are not just a procedural coincidence but a structural bias.

Further study is needed on this. However, it is clear that the indiscriminate use of urgent arrest warrants has violated the very essence of the law, and that too by the police. Since the police are accustomed to this process, they also arrested former Prime Minister KP Sharma Oli and former Home Minister Ramesh Lekhak from their residences in Bhaktapur on the morning of March 26 with urgent warrants.

Both were released on March 26 only after the Supreme Court ordered them to be kept out of custody and the investigation to continue. Even when they were in power in the past, they themselves have certainly suffered the consequences of not alerting the police to this and not stopping the abuse of exceptions. This context can be instructive for the future.

It is also seen that financial crime suspects who have large amounts of money in their bank accounts, have established foreign contacts, and have the ability to destroy digital evidence or who are accused of sexual crimes and human trafficking who may threaten the victim are being arrested with regular court warrants, and those accused of indecent behavior, marijuana consumption, and mobile phone theft are being arrested with urgent warrants.

This raises the question of on what basis the police decide who to arrest immediately with an urgent warrant and who to wait for the court's order. Therefore, it is imperative to exercise restraint in the practice of urgent arrest warrants, whether by further improving the law or by training the police. It seems that they should also practice a system of being properly accountable for the reasons for adopting this process. Alternatively, if the court itself starts refusing to arrest and bring people under urgent warrants except in cases specified in the law, this trend can be expected to improve.

As society has come to understand that being arrested is the same as being convicted and punished, the government has also started taking an interest in this work. The details of a person are often made public as soon as they are arrested. This has raised questions about the protection of a person's privacy. On the other hand, the practice of issuing an arrest warrant as soon as a complaint is registered means that a person may be arrested and unnecessarily remain in detention for a few days even if the complaint is false. In such a situation, the person may have to suffer the harassment of detention and lose his reputation.

Therefore, the practice of 'waiting and listening' should be ended, and the practice of prioritizing investigation and arresting only in extremely necessary cases should be adopted. The power and capability of the police cannot be realized by arresting a person who is unlikely to flee or destroy evidence, but rather, a thorough investigation and strong prosecution can ensure its success.

The Attorney General's Office had clarified two years ago, 'There should be a legal provision requiring the accused to be given notice to appear before issuing a warrant.' In India, too, in 2013, the Supreme Court there, in a ruling on a case, had directed that a law be made to give the person the opportunity to appear himself. After that, the Indian law was amended as per the Supreme Court's directive.