As per Locke’s social contract theory, he proposed that every human has three basic rights namely, right to life, liberty and own property and these rights are inherited to every human being, which cannot be snatched away by anyone except for the procedures established by law. Even the Indian Constitution has sanctified this right to life and liberty under Article 21 but many a times this right is misused by the public officials who are vested with the power to detain people for any offence committed by the accused person.
Every citizen of the nation is entitled to some of the fundamental rights such as right to live, right to religion, right to freedom etc and these rights are completely fair for all without any prejudice in the spirit of common brotherhood and conscience to keep the people united. However, these fundamental rights can be suspended for a while in certain conditions like in case of emergency or when the person is detained or arrested for an alleged crime or offence. It should be noted that even an arrested person has certain rights which can be exercised by him/her to ensure that justice is being served equally.
The power to arrest is granted to the policemen through the Criminal Procedure Code, 1973. But there are many instances where it has been discussed that these powers were being exploited and there has been abuse of personal liberty of people through the rights vest in the police of “protection of public”. The irony in this case is that the force who has been deployed to protect the masses is actually hampering the rights of the masses by arresting them for invalid reasons.
It was recorded in the case of R.P Kapur v. State of Punjab that the main objective of a police officer should be to unravel the truth of the case, whereas the officers are busy running behind the extorted money, good arrest statistics, service rewards or even personal vendetta to satisfy their unhealthy greed but this kind of attitude of police officers has led to tarnishing of the reputation of Force which further leads to diminishing level of trust among the people for the police.
Under Criminal Procedure Code, 1973 the police can exercise their arrest power without a warrant (section 41 of the said Act), arresting person who fails to identify themselves, or even search a particular premises which the police believes that the offender must have entered, seize personal property such as weapons. Thus, there are many reasons available for the policemen to arrest a person and there is wide array of discretion given to the police officers through Cr.P.C as the language used in the Code is general and vague sometimes such as words like “reasonable” and “credible suspicion” are used which are very subjective in context and differs from person to person’s perspective while making such arrests.
Kinds of Arrest
The arrest of a person or accused can be initiated by any officer of the Police Department, the Magistrate or a private person or an ordinary citizen under the legal provision which allows such arrest. The Criminal Procedure Code applies to all except for the members of the Armed Forces, so no detention of Armed Forces is permitted within this law by the police officer except only if the consent has been granted by the government of India. There are some of the offences where the police might not even need a warrant to arrest a person, such as in case of cognizable offences where the crime committed is of grave nature, warrant is not required to detain a person but in case of non-cognizable offence a police officer should have a warrant to arrest the alleged person.
There are majorly two kinds of arrest listed in the Criminal Procedure Code, 1973, but there are certain other conditions provided under which even an ordinary man can make an arrest or arrest can also be made in case the person is not revealing his identity. The two main modes of arrest are as follows-
- Arrest with a Warrant issued by the Magistrate
- Arrest made without a warrant but there is a legitimate provision stating that detention is permitted or necessary
1. Arrest without Warrant (section 41)
Section 41 of the Cr.P.C has given the different types of cases in which the Police Department is authorized to make an arrest without a warrant and order issued from the Judicial Magistrate. They are as follows-
- A person who is involved in any sort of cognizable offence or against whom a reasonable complaint has been filed or any specific credible information has been received by the police department or there is even reasonable suspicion surrounding the particular person related to a cognizable offence.
- A person who has been proclaimed as an offender either as per the provision of the Code or by the order passed by the State government.
- The person is in possession of an item without having any lawful reason to possess it, the burden of proof will lie on such a person to prove his innocence.
- The person is in possession of anything which is suspected to be stolen property and the person maybe linked to the specific offence if the stolen property is found in his possession
- A person who obstructs the functioning of the police officer while he is executing his duties or who has escaped or tries to escape from lawful custody.
- The person is suspected to be deserter of the Armed Forces of the Union
- The person who is involved in or against whom a reasonable complaint is made or there is reasonable suspicion exists that the person is involved in the act or credible information is received against the person that any act committed at any country or outside the country which is seen as a punishable offence for which, he is under any law liable to be arrested or apprehended in the legal custody of India.
- Any person who was released convict and further commits any breach of rule, relating to the notification of the residence or change of or absence of the person from the given residence
- The person for whose arrest any request is made irrespective of whether it is written and oral has been received has been received by other officer provided that the oral request specifies the name of the accused person to be arrested and the crime for which the person is to be arrested is cognizable so that a warrant is not required for the officer to arrest the person on the issuance of the requisition.
- Arrest for refusal to give name and residence (section 42)
If there is an accused person who is alleged to have committed a non-cognizable offence doesn’t provide his name, residence or instead provides a name and residence that the police officer believes to be false, then the officer has the right to arrest the alleged person. However, the arrested person cannot be detained for period of more than 24 hours, in case his actual name and address cannot be determined or fails to execute a bond or furnish sufficient sureties and in the following case the person shall be presented before the Magistrate having relevant jurisdiction.
2. Arrest made by a private person (section 43)
Under section 43 of the Code, even a private person can conduct an arrest or cause to be arrested by any private person, who in his presence has committed a cognizable and non-bailable offence or is noted as proclaimed offender by the State government. This right to arrest finds its origin under the Common Law of England which was applied in the case of Ramaswamy Aiyar (1921) 44 Mad 913.
3. Arrest with a warrant issued by Magistrate (section 44)
Under section 44 clause (1) of the CrPC, the Magistrate has been vested with the power to arrest an individual who has committed an offence in the presence of the Magistrate and also commit him to judicial or police custody. Under Clause (2) of the section, the Magistrate has the power to arrest a person for which he is competent and has been authorised to issue a warrant for the same in the name of the particular Police officer. Whereas Section 45 secures the members of the Armed Forces from an arrest where they have committed an act while discharging their duties and the concerned person can be arrested only after getting a consent from the Central government.
Protection available against arrested persons
As we discussed above that the power to arrest, granted to the police officers is often exploited and many innocent people are also thrown behind the bars for years till their case reaches its final judgment. Thus, there is certain protection which an arrested person should be aware of and it is also the duty of the arresting officer to make sure that the arrested person is informed about his prison rights.
As per the consultation paper of Law Commission in 2001 it was noted that around 60% of the arrests were unnecessary and not needed and due to these unwanted arrests, it also led to increase in the jail expenditure and there was about 40% of the expenditure which was still due. In the case of Joginder Kumar v. State of UP, it was held that, the National Police Commission referred to the quality of arrests made in India and stated that it was one of the primary sources of corruption for the officers. Thus, increase in such wrongful practises brought amendment in 2009 in the Code and the amendment led to sweeping drop in the powers of police related to their arrests for offences which carry punishment of less than 7 years. Article 41(A to C) was protecting this amendment and several other changes which were pre-requisite to operate this amendment. There were many strict formalities installed to process theses offences. The grave offences were assault, kidnapping, cheating, forgery accusations and so on.
Even in the case of MC Abraham v. the State of Maharashtra, the Apex Court had observed and repeated the same that the arrests must be made very carefully and following the correct procedure. It was also stated that it is not necessary to make such arrests but in certain circumstances, the police can make the arrests if they are able to justify their reason to do so, is as the accused is likely to abscond or meddle with the witnesses or evidence.
Thus, the legal system of India follows the concept of “innocent till proven guilty” and any sort of unlawful arrest will be considered as a violation of the Article 21 of the Indian Constitution where it is explicitly mentioned that, “no person shall be denied his right to life and personal liberty except if procedure established by law” and even Article 22 talks about the rights of the arrested person, which should be fair and equal for all with on arbitrariness.
Rights of an Arrested Person –
There are many rights available to an arrested person which are as follows-
1. Right to know the grounds/ reason of arrest
- Under Article 22(1) of the Indian Constitution has stipulated that no police official can arrest a person without informing him about the grounds or reasons for which he/she is being arrested or detained.
- Section 50 of the CrPC, states that in case of arrest without a warrant it is the duty of the police official to inform the person regarding the offence/crime for which he is being arrested. This is primary duty of police officer from which he cannot refrain.
- Section 50A of the Code, makes it mandatory that the officer should inform any one of the relatives of the arrested person or even friends/neighbour who are known to the arrested person, if there are no relatives.
- Section 55 of CrPC states where the junior official is being authorised by the police official to make the arrest, the junior official should intimate the arrested person about the delegation along with the grounds of arrest and the offence committed.
- Section 75 further states that the police official who is executing the warrant must notify the arrested person regarding the warrant and even present it when asked for by the Magistrate or arrested person.
2. Right to be produced before the Magistrate within the given timeframe
- Article 22(2) of the Constitution of India, orders the police official making the arrest to present the arrested body before the Magistrate within 24 hours of the arrest, and failing to do so will make the officer liable for wrongful detention.
- Section 55 of the Code mentions that if an arrest is made without a warrant then the person should be presented before the appropriate Magistrate with the right jurisdiction without making any further delay, depending upon the nature of offence and arrest.
- section 76 of the Code further states that the person should be presented within 24 hours of arrest to the Magistrate with its jurisdiction, but the 24-hour time limit shall exclude the time taken to reach from the place of arrest to the Magistrate Court. Basically, it would not include the travelling time.
3. Right to avail Bail
- Section 50(2) of the Code, provides that the arrested person has the right to be released on bail by signing a bond and making arrangement of certain amount as surety or the person should be informed about this right while the arrest is made without a warrant for a non-cognizable offence.
4. Right to just and fair trial
Every person has the right to fair and just trial and this right is mentioned in the fundamental rights of our Indian Constitution and many judicial precedents of High Court and Supreme Court since no specific legislation has talked about this in particular.
Article 14 of the Indian Constitution, has stated the concept of “equality before law” which means that all individuals are equally treated by law without any discrimination or prejudice. Thus, this makes it clear that everyone is entitled to a fair and just trial and even the principle of natural justice has to be kept in mind while hearing both the parties. Apart from these essentials, right to speedy trial was also a part of Article 21-right to life and liberty, where the arrested person has the right to ask for a speedy trial in the landmark judgment of Huissainara Khatoon v. Home Secretary, State of Bihar, it was held that a case should be disposed within the given time period and with utmost diligence and sincerity.
5. Right to consult a lawyer
- Article 22(1) of the Indian Constitution provides that every arrested person has the right to choose his own lawyer who would be defending him in the Court of law for the offence committed or not committed by him, due to which he has been arrested.
- Section 41D of the Code, 1973 permits the inmates to consult their lawyers during the investigation and interrogation process.
- Section 303 of the CrPC, 1973 allows the alleged person to choose his own defence lawyer who would be representing him, even if the proceedings against the accused have started in the Court.
6. Right to free legal aid
- Article 39A of the Constitution aims to provide free legal aid to all the people who are in need of legal services but cannot afford it. The same right was asserted in the case of Khatri .v Bihar, where the court observed that, “the State must provide free legal aid to the poverty-stricken accused person.” Thus, whenever the arrested person is first produced before the Magistrate, he/she is always asked whether they need free legal aid or would like to choose the lawyer of their choice.
Further, the right to free legal aid for the accused person cannot be refused on the grounds that he didn’t ask for it himself. One important point to be noted is that if the government fails to provide free legal aid against the poverty-stricken alleged individual, then the whole trial will stand void. This principle was definitely laid down in the case of Sukh Das v. State of Arunachal Pradesh where it was held that “right of poverty-stricken accused person cannot be refused, even if the accused fails to apply for the same.”
- Section 304 of the Code, entitles an alleged person a very substantial right where the accused person who is appearing before the Sessions Court, has to be appointed a government lawyer free of cost which would be at the expense of the State. In case the accused person doesn’t have the means to appoint a lawyer for himself then the Court shall appoint a representing lawyer for the alleged person.
7. Right to remain silent
This right has not been specifically mentioned under any of the Statutes but its authority comes of from the Criminal Procedure Code, 1973 as well as from the Evidence Act, 1882. The right to remain silent is basically related statement and confession that is to be made by the arrested person before the Court. Apart from that, it is the liability of the Magistrate to see and note that the statement and confession made by the accused was voluntarily or was due to any manipulation or use of force. Thus, no police official or authority has the authority to induce the accused person to speak anything regarding the offence in the court.
Article 20(2) of the Indian Constitution, reiterates that no person whether the alleged person or not can be compelled to be witness against himself, or self-incriminate himself before the court. This principle was asserted in the case of Nandini Satpathy v. P.L. Dani where it was noted that “No person can force any other person to list any statement or compel to answer any question to the accused person, as the accused person has the right to keep silent during his interrogation.”
8. Right to be examined by a doctor
Section 54 of the Code, provides that if an arrested person has contended that medical examination of his body would lead to particular detail which would stand as evidence for the accused and dismiss the accusation that the offence was committed by him or there is some detail which might lead to evidence towards the commission of the offence by some other person against the accused person.
In such case, the court has the discretion to order for a medical examination of the accused person on his request but it should be noted by the Court that the request made by the accused person is genuine and not done merely to delay or defeat justice.
9. Additional rights available to the arrested person
- Section 55A of CrPC states that reasonable health care and safety of the arrested person is the sole responsibility of the police official who has the custody of the person and made the arrest. This section was added to ensure the safety of the arrested person from any cruel and inhuman treatment of the person.
- Another revolutionary effort was made to establish the principle of natural justice by enacting Section 358 of the CrPC where the arrested person is provided with compensation when he is arrested unreasonably.
- Section 49 of the Code, states that the police official must not restrain or arrest a person without a legal arrest.
In the landmark case of DK Basu v. State of West Bengal and Ors. focuses on the rights of the arrested person and also gives out a guide for the policemen to act in a certain way, and not arrest/ detain anyone unlawfully. In case the police officer fails to discharge his duties appropriately, then it will amount to contempt of court and also for departmental inquiry. Such a dispute can be initiated in any of High Court that has the jurisdiction to try the case.
Even though, several efforts are being made by Indian Judiciary and Parliament to protect and safeguard the interest of the accused person from unnecessary torture and violent acts by the police are still very common. Thus, to overcome this case of custodial violence the Supreme Court has circulated 9 significant guidelines to safeguard the alleged persons from police atrocities and this also led to numerous amendments of sections of CrPC which are as follows-
- Section 41B of the Code, where police official who is authorised to conduct the investigation/ arrest must supply clear, visible and valid badge where the name and designation of the police official should be clearly mentioned
- Apart from this, the police official making the arrest must also prepare a case memo having the entire details of the arrest like the date and time, and the same document shall also have the signature of atleast 1 family member or the respectable person from the same locality of the accused. Even the arrested person is required to countersign the cash memo.
- Every arrested person is entitled to have atleast1 friend or relative or any other known person of the accused by his side while the arrest is being made. It is the duty of police to inform the friend/relative immediately when the person is detained or put under custody.
- Appropriate entry must be made in the diary which should be maintained by the police and the entry shall have all the information regarding the arrest of person and whatever other details of the person is necessary to furnish the facts of the arrest.
- The official diary where the entry is made should include the name and additional particular of the police official too under whose custody the person is arrested. Besides, even a medical examination has to be conducted after the request of the arrested person to put a record that any minor or major injuries are suffered by the arrested person. The inspection memo has to be signed by both the police official as well as the arrested person.
- Apart from that all the copies of the documentation, must be sent to the Magistrate for his recording which shall also include the arrest memo.
- Every arrest made by the Police Official must be informed in the District and State headquarters within 12 hours of the arrest and it also has to be displayed in the conspicuous board.
Case Laws –
- In the case of Yoginder Singh v. State of Punjab it was noted by the Court that while executing the Article 21 and Article 22(1), it is domineering that-
- The arrested person has the right to inform his friend, relative or any other person in his interest about his arrest
- It is duty of the police official to inform the all the rights to the arrested person to the person who is being detained.
- The entry of the arrest made, shall have the complete details must be maintained in an official diary which shall include all the necessary details of the person arrested along with the name of his friend/ relative who was informed about the arrest.
- In the landmark judgment of Prem Shukla v. Delhi Administration, the court held that “the prisoners/arrested person have the right to not be handcuffed in shackless unless and until there is some strange circumstances which arise during the arrest or when he is in custody.” Thus, it is not necessary to handcuff the arrested person unless it is extremely required.
Mode of Arrest
Section 46 of the Code, talks about the mode of arrest or how the arrest is made, whether it is with or without warrant. While making an arrest, the police officer or authority of power should touch or confine the body of the accused person but only after the submission is made by the accused regarding the custody via words or action has taken place.
When an officer of the police department arrests an individual with a warrant which is obtained from the Magistrate, the person being detained/ arrested should not be handcuffed unless the respective officer has received orders to do so from the Magistrate itself. The officer or individual making the arrest can use all the possible efforts and means which are required to complete the stated arrest in case the alleged person is resisting or tries to evade the situation or abscond from his own place.
When the officer has to make an arrest without a warrant, the officer may pursue the individual or accused person into any place in India as mentioned under Section 48 of the code. Even section 49 states that the arrested person shall not be subjected to any needless restraint or physical inconvenience unless it is absolutely required to do so to avoid the person from escaping the police custody.
Another thing which should be noted is that the police official cannot cause the death of the accused person while making attempts to arrest him, except for in cases where the accused is punishable for the offence with death sentence or life imprisonment or when the alleged person is making efforts to unnecessarily to resist his arrest by turning aggressive or hostile towards the police official and lastly where the accused person is escaping from the arrest.
Thus, from the abovementioned we have gained an overall view of the present condition of our laws with respect to the protection provided to prisoners/arrested person, what are the essential rights of an arrested person and why it is necessary to provide protection to these inmates or else the police officials will exploit their discretionary powers in the wrong manner as India is one of the top most countries facing the issue of illegal arrests as well as has increasing rate of custodial violence and deaths.
These problems show that how the people who are meant to safeguard the people are actually causing threat to for the same and undermining the essence of Article 21 of the Constitution along with all the relevant fundamental rights available for the arrested persons. It is the current need of the hour, to bring better implementation of our existing laws and guidelines as framed and suggest by the Legislative and Judiciary to curb this increasing rate of injustice to the arrested persons. Apart from this, an enormous change has to be brought in the education provided to the police force too and an organized system needs to be introduced where the officers are made accountable for their concerned arrests, and last but not the least, a method to tackle the corrupt practises is the one of the crucial amendments which India is currently in need of.
Frequently Asked Questions –
- Whether a private person make an arrest?
As per CrPC, even an ordinary person can arrest an individual. The private person may arrest the or cause for other person to be arrested who has committed a non-bailable and cognizable offence or is a proclaimed offender, then in such case the private person can arrest the offender or cause to be the arrest of the offender by the police officer and in absence of police officer, the person can take the arrested person to the nearest police station and hand him over to the officer.
- When can a police officer arrest you?
As per section 151 of the CrPC, it empowers the police officer to make an arrest without the specific orders from a Magistrate and even without a warrant. In cases, where there is reasonable doubt that the person is designing to commit an offence which is cognizable in nature and the commission of the offence cannot be prevented unless the person is detained, then the police officer can make an arrest without a warrant.
- How long can a person detain a person without a warrant?
A person cannot be held in custody by the police for a period of more than 24 hours, as per Section 57 of the CrPC, it is stated that, “No police officer shall detain in custody a person arrested without a warrant for period longer, if all the circumstances of the case are reasonable than 24 hours excluding the time of journey from the place of arrest to the Magistrate’s Court.
- Difference between arrest and custody
Generally, these two terms are often used in the same sense, whereas they both have slight difference, as a person is usually put into a police or judicial custody only after the arrest is made, when the accused is presented before the Magistrate or the person has surrendered before the Magistrate. In every arrest, it is followed by a custody but it is not necessary that every custody of a person involves arresting of the person.
Thus, it should be noted that arrest is the mode to bring a person into custody whereas custody means restricting the movement of the person for a while, and it is not necessary that bringing a person into custody will necessarily amount to an arrest.
- Can a child be arrested?
Yes, a child can be arrested too by the police if the police has a reason to believe that the child has committed a crime, usually when police stations are having a Child Welfare Protection officer in each and every district and in case of juvenile crime, the arrests are made by Special Juvenile Police Unit normally but if the police suspects a child committing a crime and regular police officer arrests the child, then the child has to be taken under the care of Juvenile Police Unit or place him under designated Child Welfare Police Officer.
- What is anticipatory bail?
Anticipatory bail is one of the ways of issuing a direction by the Sessions Court or High Court, for releasing of a person on bail even before the person is arrested by the concerned police officer.
- What happens when the anticipatory bail is granted?
Once the anticipatory bail is granted by the Sessions or High Court, in the anticipation that the arrest is going to take place, then the person is free to go and won’t be arrested, if the anticipatory bail order is shown to the police officer. The person should honour the terms listed on the bail application and it is not necessary to go the police station, once the bail is granted, but the alleged person should coordinate with the investigation carried out by the police officers and also be diligently present in all the trials.
This article is authored by Rhea Banerjee, Pursuing B.A.LL.B from Indore Institute of Law.