ARREST: Rights and Safeguards of an Arrestee under the Constitution of India and The Criminal Procedure Code,1973

Arrest in common parlance signifies the restraint of a person. The word “Arrest” has been derived from the French word arrêt meaning “to stop or stay”.

Black’s Law Dictionary (7^th Edition, 1999) defines“Arrest” as ‘1. A seizure or forcible restraint; 2. The taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge.

It also defines “Lawful Arrest” as “The taking of a person into legal custody either under a valid warrant or on probable cause that the person has committed a crime.”

 

CATEGORIES OF ARREST:

1. Arrest made in execution of a warrant issued by a Magistrate;

2. Arrest made without a warrant in accordance to the provisions laid down under the Criminal Procedure Code, 1973.

 

WHO CAN ARREST? :

Arrest may be made by:

1. A police officer – A police officer shall ordinarily make an arrest is pursuance of a warrant issued by a Court under the provisions enumerated under chapter VI B of The Code of Criminal procedure, 1973. However, a police officer may also arrest a person without an order issued by a magistrate or without a warrant under various circumstances and categories of cases incorporated under Section 41 of the Criminal Procedure Code, 1973.

2. A private person – A private person may arrest any person who in his presence commits a non-bailable and cognizable offence or any proclaimed offender. The provision and procedure has been enumerated under Section 43 of the Criminal Procedure Code, 1973.

3. A Magistrate – A magistrate may himself arrest or order any person to arrest an offender who has committed any offence in the presence of a Magistrate, Executive or Judicial, within his local jurisdiction. The provision and procedure has been enumerated under Section 44 of the Criminal Procedure Code, 1973.

 

 

POWER TO ARREST WITHOUT WARRANT AND OBSERVATIONS OF THE APEX COURT IN ITS REGARD:

Section 41 of the Criminal Procedure Code,1973 (referred hereinafter as “Cr.P.C.”) confers powers on any police officer to arrest a person without an order from a Magistrate and without a warrant under various circumstances enumerated in the said provision therein. Despite such powers being bestowed on a police officer, the police officer ought to exercise his powers diligently and righteously.

In the leading case of Joginder Kumar V. State of U.P[1] the Apex Court considered the dynamics of misuse of police power of arrest and opined: “No arrest can be made because it is lawful for the police officer to do so. The existence of the power to do is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. .............. No arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person his liberty is a serious matter.......”

The Supreme Court in the case of Arnesh Kumar V. State of Bihar[2] observed as: “The law mandates the police officer to state the facts and record the reasons in writing which led him to come to the conclusion covered by any of the provisions in Section 41(b), while making such arrest. The law further requires the police officers to record the reasons in writing for not making such arrest.”

 

NOTICE OF APPEARANCE:

Section 41A of the Cr.P.C. provides that where an arrest is not required under the provisions of Section 41 (1), the police officer shall issue a notice of appearance to the person accused of committing an offence to appear before such police officer.

It has been further observed in the case of Arnesh Kumar as“........ In all cases where the arrest of a person is not required under Section 41(1) Cr.P.C., the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded the police officer is of the opinion that the arrest is necessary. At this stage also the condition precedent for arrest as envisaged under Section 41 Cr.P.C. has to be complied with and shall be subject to scrutiny by the Magistrate.”

 

 

RIGHTS AND SAFEGUARDS OF AN ARRESTEE:

        Right to consult a lawyer:

Any person who has been arrested has the right to consult a lawyer and to be defended by a legal practitioner of his choice. This right is enshrined in Article 22 (1) of the Constitution of India and Section 41D of the Code of Criminal Procedure, 1973. The Supreme Court has observed that the accused person has a right, upon request to have someone informed and to consult privately with a lawyer. These rights are inherent in Articles 21 and 22 of the Constitution and require to be recognised and scrupulously protected thereof. [Joginder Kumar V. State of Uttar Pradesh.]

   Right to be informed of the grounds of arrest:

Section 50 (1) of the Cr.P.C. provides that any person who is arrested without a warrant has every right to be informed by such person arresting him the full particulars of the offence for which he is arrested or any other ground for making such arrest. Furthermore, Article 22 (1) of the Constitution is in the nature of a directive tothe arresting authority to disclose the grounds of arrest immediately to the arrestee.

 Right to be informed about the right to bail:

Any person, who is arrested without a warrant and is accused of a non-bailable offence, has every right to be informed by such person arresting him that he entitled to be released on bail and also of the sureties to be arranged on his behalf for such bail. Such right has been envisaged under Section 50(2) of the Cr.P.C.

 Right of the arrested person to inform a friend, relative or any other person nominated by him regarding the details of his arrest:

The police officer or any person making an arrest of a person is obligated under the law to inform any of his friends, relatives or any person nominated by such arrestee disclosing details of his arrest. Such right has been enumerated under Section 50 A of the Cr.P.C. It shall be the duty of the Magistrate before whom such arrested person is produced to satisfy himself that the requirements of Section 50 A have been duly complied with.

 Accused persons not to be detained for more that 24 hours without the authority of law:

Any person arrested under the provisions of law should be produced before a magistrate having jurisdiction of the case or before the officer in-charge of a police station without any unnecessary delay. (Section 56 of the Cr. P.C)

An arrested person shall not be detained in custody for a period beyond 24 hours from the time of his arrest unless a special order has been issued by a Magistrate under Section 167 of Cr.P.C. for permitting the detention of an arrestee exceeding 24 hours. The said provision is incorporated in Article 22(2) of Constitution of India and Sections 57 & 76 of the Cr.P.C.

The Supreme Court has strongly urged in Khatri V. State of Bihar[3], that the Constitutional requirement to produce an arrested person before a judicial Magistrate within 24 hours of his arrest must be strictly and scrupulously observed.

However, the protections enumerated in Article 22 of the Constitution are subject to certain exceptions under Article 22 (3) of the Constitution of India. The aforesaid protections are not available to the following classes of people:

(i)            Enemy aliens

(ii)           To person arrested or detained under a law providing for preventive detention.

 

                 Right to be examined by a medical officer:

An arrestee has the right to be examined by a medical officer in service of the Government or registered medical practitioner for any injuries or marks of violence that may have been inflicted upon him and a copy of the report shall be furnished to the arrestee or the person nominated by such arrestee by the concerned medical officer after due examination of such person.

 

In case the arrested person is a female the examination of the body shall be made only  by or under the supervision of a female medical officer and in case the female medical officer is not available then by a female registered medical practitioner. This right has been enumerated under Section 54 of the Cr.P.C.

    Right to health and safety:

An arrestee shall have every right to reasonable health care and safety to be provided to him by the person having the custody of such arrestee. Such right has been inserted under Section 55A of the Cr.P.C.

  Special provision in regards to arrest of a woman:

Section 46(4) enumerates a provision in the case of arrest of a woman. It provides that no woman shall be arrested after sunset and before sunrise, and only in exceptional circumstances such arrest can be made where the woman police officer shall by making a written report, obtain the permission of the Judicial Magistrate of first class within whose local jurisdiction the offence is committed or the arrest is to be made.

           Privilege against self-incrimination:

Any person accused of an offence shall not be compelled to be a witness against himself as embodied in Article 20(3) of the Constitution of India. This privilege extends to any person accused of an offence and prohibits all kinds of compulsion to make him a witness against himself.

  

OBSERVATIONS MADE BY THE SUPREME COURT OF INDIA:

The Supreme Court in a catena of judgements has made certain observations for the protection and safeguard of the arrested accused persons keeping in view the torture and custodial abuse and oppression meted out to such persons.

·           Separate lock ups for female accused:  

In Sheela Barse V. State of Maharshtra[4] it has been held by the Apex Court that female suspects should not be kept in the same lock-ups in which male accused are detained. For this, four or five lock ups should be set up in reasonably good localities exclusively for female suspects and those lock ups should be guarded by female constables. Interrogation of females should be carried out only in the presence of female police officers/constables.

 

·           Free legal aid:

State is constitutionally bound to provide free legal aid not only at the stage of trial but also when they are first produced before the magistrate or remanded from time to time. Such right cannot be denied on the ground of financial constraints or administrative inability or that the accused did not ask for it. Magistrates and Sessions Judges must inform the accused of such right, Khatri (II) V. State of Bihar[5].

 

·           Fair trial:

“The principles of rule of law and due process are closely linked with human rights protection……………. each one has a in built right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses or the cause which is being tried is eliminated.” [Zahira Habibulla Sheikh vs. State of Gujrat[6]]

 

·           Speedy trial:

In our constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by the Apex Court in Maneka Gandhi Vs. UOI[7]. "If a person is deprived of his liberty under a procedure which is not reasonable, fair or just, such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Procedure prescribed by law for depriving personal liberty cannot be "reasonable, fair, or just" unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as "reasonable, fair, or just" and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life & liberty enshrined in Article 21." [Hussainara Khatoon & Ors(I) Vs. Home Secretary, State Of Bihar[8]]  

 

·           Police Atrocities:

Custodial violence, torture, rape, death in police custody/lock-up infringes Article 21 as well as basic human rights and strikes a blow at rule of law. Torture involves not only physical suffering but also mental agony. It is naked violation of human dignity and destructive of human personality. Interrogation though essential must be on scientific principles. Third-degree methods are totally impermissible, D.K. Basu V. State of W.B.[9]

 

·           Rights of Under trial Prisoners:

In Prem Shankar V. Delhi Administration[10], the Apex Court observed that “to be consistent with Articles 14 & 19 handcuffs must be the last refuge as there are other ways for ensuring security. No prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort.”

 

·           Rights of Detenu:

The right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for securing release from preventive detention or filing a writ petition or prosecuting any claim or proceeding, civil or criminal, is also included in the right to live with human dignity and is part of personal liberty and a prison regulation may, therefore, regulate the right of a detenu to have interview with a legal adviser in a manner which is reasonable, fair and just; but it cannot prescribe an arbitrary or unreasonable procedure for regulating such an interview and if it does so, it would be violative of Articles 14 and 21, Francis Coralie Mullin V. Administrator, Union Territory of India.[11]

 

·           Constitutional rights:

In Sunil Batra V. Delhi Administration[12], a constitutional Bench of the Supreme Court has held that ‘the convicts are not wholly denuded of their fundamental rights……Prisoners are entitled to all constitutional rights unless their liberty has been constitutionally curtailed.”

The Apex Court has time and again emphasized on factors like regulating a check on the abuse of police power, transparency of action and accountability of police inaction. The protection of an individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society. The Supreme Court in the leading case of D.K. Basu V. State of W.B. has observed that “Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but the law does not permit the use of third-degree methods or torture of accused in custody during interrogating and investigation with a view to solve the crime. End cannot justify the means. The interrogating and investigation into a crime should be in true sense purposeful to make the investigation effective. By torturing a person and using third-degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No society can permit it.”

SUPREME COURT’S GUIDELINES IN D.K. BASU V. STATE OF WEST BENGAL

The Supreme Court in this judgement had laid down specific guidelines for the arresting authorities stating that the following requirements are to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:

·      The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

 

·      That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a memo shall be attested by at least one witness who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

 

·      A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

 

·      The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

 

·      The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.

 

·      An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

 

·      The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

 

·      The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.

 

·      Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.

 

·      The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

 

·      A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

CONCLUSION:

The simplistic denouement of lawful arrest can hence be narrowed down to an act of striking the balance between rights, liberties and privileges of an individual, on the one hand, and duties, obligations and responsibilities conferred on the law enforcers on the other. On one side, it is the need of the society that crime should be repressed and collaterally, on the other side there remains the social obligation that law shall not be flouted by the insolence of office. It is imperative to strike the balance betwixt opposing interests. To sum up in the words of Lewis Mayers, ‘To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft.’  

 

 

 

 

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[1] (1994) 4 SCC 260

[2](2014) 8 SCC 273

[3](1981) 1 SCC 635

[4](1983) 2 SCC 96

[5](1981) 1 SCC 627

[6](2006) 3 SCC 374

[7] (1978) 1 SCC 248

[8] (1980) 1 SCC 81

[9](1997) 1 SCC 416

[10](1980) 3 SCC 526

[11](1981) 1 SCC 608

[12](1978) 4 SCC 494