Arrest means, placing of a person in custody or under restraint, usually for the purpose of necessitous obedience to the law. In other words we can say that arrest is the deprivation of a person of his liberty by legal authority or at least by apparent legal authority. For instance, when a police officer apprehends a pick-pocket he is arresting the pick-pocket; but when a dacoit apprehends a person with a view to extract ransom, the dacoit is not arresting that person but wrongfully confining that person. Secondly, every compulsion or physical restraint is not arrest but when the restraint is total and deprivation of liberty is complete, that would amount to arrest. If a person suppresses or overpowers the voluntary action of another and detains him in a particular place or compels him to go in a specific direction, he is said to imprison that other person. If such detention or imprisonment is in pursuance of any legal authority or apparent legal authority, it would amount to arrest. Preventing a person from making his movement and from moving according to his will amount to arrest of such person. If the arrest occurs in the course of criminal procedure, the purpose of the restraint is to hold the person for answer to a criminal charge or to prevent him from committing an offense. In civil proceedings, the purpose is to hold the person to a demand made against him.
In a free society like ours, law is quite jealous of the personal liberty of every individual and does not tolerate the detention of any person without legal sanction. The right of personal liberty is a basic human right recognised by the General assembly of the United Nation in the Universal Declaration of Human Right. This has also been prominently included in the convention on Civil and Political Rights to which India is now a party. Our Constitution recognises it as a Fundamental Right Article 21 provides:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
Further the Procedure contemplative by this article must be “right”, just and fair” and not arbitrary, fanciful or oppressive; otherwise it would be no received at all and the requirement of Article 21 would not be satisfied.
Thus the personal liberty being the cornerstone of our social structure and the legal provisions relating to arrests have special significance and importance. By keeping all these thing in mind which is mentioned above, I have tried to discuss the important points in this paper like a) how the arrest are made, b)what rights are given to the arrested person for facilitating his offence and c) what are the legal consequences of non-compliance of these rules relating to the abovesaid matter.
Arrest how made under CrPC
It is under the section 46 of the code which states the mode of with or without warrant. In order to make an arrest the police officer /other person making the same, is bound to actually touch or confine the body of the person who is supposed to be arrested until unless there is a submission to custody by words or action.
It is to be noted here that in cases when the police arrests a person in execution of an arrest warrant issued by a magistrate, there shall be no handcuffing of the person to be arrested until unless the magistrate has ordered to do so. In cases where a woman is to be arrested, her submission to custody shall be presumed on an oral intimation of arrest unless the circumstances indicate the contrary, or unless there is female police officer, the male officer making the arrest shall not touch the woman who is to be arrested. It is when person to be arrested forcibly resists the endeavour to be arrested, or attempts in any manner to evade the arrest, then the police officer or other person affecting the arrest may use all means necessary to give effect to the arrest.
The code however under any circumstance does not give right to cause death of a person who is not accused of any offence which is punishable with death or with imprisonment for life. No women shall be arrested after sunset and before sunrise except under exceptions and where such exceptional circumstances exist, it is the duty of the woman police officer to make a written report, and obtain the prior permission of the Judicial Magistrate of the first class with competent jurisdiction of the offence for which such arrest is to be made.
Rights of arrested person
The benefit of the presumption of innocence of the accused till the time he is actually found guilty at the ending of a trial substantiated with evidence, is one of the basic tenets of our legal system. It is a characteristic of our democratic society that even the rights of the accused are deemed to be sacrosanct, and even though he is charged with an offence however that does not render him as a non-person. Our statute is quite careful towards anyone’s “personal liberty” and hence doesn’t permit the detention of any person without proper legal sanction. Hence, the accused has been provided with certain rights under the law and the general rationale behind these rights is that the government has conferred enormous resources for the prosecution of individuals’, and therefore accused are entitled to some protection from misuse of those powers by the government.
In the leading case of Kishore Singh Ravinder Dev vs. State of Rajasthan, it was said that in India the constitutional, evidentiary and procedural laws have made elaborate provisions in regard to protecting the rights of accused and with a view to protect his dignity as a human being and providing him benefits of a just, fair and impartial trail. However, in yet another case of Maneka Gandhi vs Union of India, it was held by the court that no matter what the procedure the state takes into action, the basic rule of it being carried out in a just, fair and reasonable way should be adhered to. Available rights are:
Right to remain silence: The ‘right to silence’ has its origin from common law principles. So in general sense the courts or tribunals should not conclude that the person is guilty of any conduct merely because he was not responding to questions which were raised by the police or by the court. Even the Justice Malimath Committee in its report opinioned that right to silence is a much needed concept in societies where anyone can arbitrarily be held guilty of any charge. Right to silence revolves around confession basically. Also since according to law of evidence, any statement or confession made to a police officer is not admissible in a court of law, it needs to be observed that in case the accused confesses infront of the magistrate then such confession should be voluntary. Article 20(3) of Constitution of India guarantees every person the right against self-incrimination, and it has been stated under this article that no person, who has been accused of an offence, shall be compelled to act as a witness against himself. This same rule has been reiterated by a decision of Supreme Court in the case of Nandini Sathpathy v. P.L. Dani and it was held by the court in this case that no one can forcible extract any statement from the accused and no matter what, the accused has the sole right of being silent during the course of investigation and interrogation.
It was held by the Supreme Court again in the year 2010 that narco-analysis, brain mapping and lie detector test are in violation of Article 20(3) of the Constitution of India and that by administration of these tests, forcible intrusion into a person’s mind is being conducted which further nullifies the validity and legitimacy of this right.
Right to Know The Grounds of Arrest: According to Section 50(1) of CrPC., an accused who is being arrested by any police officer, without any warrant, has the right to know the full particulars of offence for which he is being arrested, and so it’s the undeniable duty of the police officer to inform the accused of the particulars.
Under section 55 of CrPC, it is the right of the accused to know in case of being arrested, the written order against him, specifying the offence or other cause for which the arrest is being made. The arrest will be illegal in case of non-compliance of this provision.
In case when the person is being arrested under a warrant, then according to Section 75 of CrPC, any person who is executing such warrant must notify the person who is being arrested, the content of such warrant, or show the warrant if required. If under any circumstance the substance of the warrant is not notified, the arrest would be unlawful.
The constitution of India recognises this as fundamental right also. Under Article 22(2) of the constitution it has been said that person who is arrested shall not be detained in custody without being informed as soon as possible of the grounds for which such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.
The rules regarding this were upheld in the cases of Joginder Kumar vs. State of U.P. and D.K. Basu vs. State of West Bengal, that it is mandatory under Section 50-A on the part of the police officer to not only inform the friend or relative of the arrested person about his arrest etc. but also to make an entry about the same in the register maintained by the police. It is the duty of the magistrate to satisfy himself about the compliance of the police in this regard.
Informing regarding the right to be released on bail: It is to be seen that any person who is to be arrested without a warrant and who is accused of bailable offence that he be informed by the police officer about his right regarding to be released on bail by payment of the surety amount.
Right of an arrested person to be taken before magistrate without delay: It is the duty of the authorised person making an arrest that the arrested person be bought before a judicial officer without any unnecessary delay, no matter how the arrest is made with or without warrant. Along with this provision it has to be seen that the arrested person should be taken and confined in a police station only and no other place. The same has been stated in section 56 and 76 of CrPC.
Section 56 of CrPC. states that the person who is arrested is required to be taken before a magistrate or officer in charge of police station. Also in cases where the police officer makes an arrest without warrant, then in such case the arrested person shall be taken to the magistrate with competent jurisdiction or before the in charge of police station without any delay.
Section 76 of CrPC states that the arrested person needs to be bought before the court without any unnecessary delay. In accordance with the provisions of section 71 in regard with the police officer or other person executing a warrant of arrest, they shall without unnecessary delay and due to security purposes bring the person arrested before the Court before which he is required by law to produce such person. It has also been mentioned in the provision of Section 76 that in any case that such delay shall not exceed 24 hours. In the process of calculating the time period of 24 hours, the time necessary for the journey is to be excluded. The reason behind creating this right is to eliminate the possibility of police officials from extracting confessions or compelling a person to give information.
In case of failure of production of an arrested person before a magistrate within 24 hours of the arrest, the police officials shall be held guilty of wrongful detention.
Rights at Trial:
Right to A Fair Trial: Right to equality has been granted under article 14 of the constitution. It has been provided under the Code of Criminal Procedure that for a trial to be fair, it must be an open court trial. In order to prevent secret designing and obtaining of convictions this provision has been designed. The trial can be held in camera as well in certain exceptional conditions.
Right to a speedy trial: Regardless of this right not being mentioned in the constitution, the SC in the Hussainara Khatoon case has made it mandatory that the investigation in the trial must be conducted “as expeditiously as possible.” In cases, where the maximum punishment to be imposed is 2 years, once the accused is arrested, it is important that the investigation for the trial gets completed within the period of six months or is stopped after order from magistrate has been received, unless the Magistrate receives and accepts, with his reasons in writing, that there is cause to extend the investigation.
Right to Consult A Legal Practitioner: It is the right of every arrested person to consult a legal practitioner of his own choice. This has also been enshrined as a fundamental right in Article 22(1) of the Constitution of India, which is undeniable in all cases. Section 50(3) of the CrPC also states that the person against whom proceedings are initiated has a right to be defended by a pleader of his choice. This right begins as soon as the person is arrested.
Rights of Free Legal Aid: The Supreme Court in the case of in Khatri v. the State of Bihar held that the state is under a constitutional obligation as is implicit in article 21 of the constitution as well to provide free legal aid to an indigent accused person. It is important to note the fact that this right starts at the time of trial and continues till the accused is produced the first time before the magistrate and also when remanded from time to time. The Supreme Court has emphasised the importance of this right by stating that that failure on the part of the state to inform the accused of this right will vitiate the whole process of trial. Therefore, it is a binding duty imposed on all magistrates and courts to inform the indigent accused of his right to get free legal aid. The apex court has taken a step further in Suk Das v. Union Territory of Arunachal Pradesh, wherein it has laid down that this constitutional right cannot be denied if the accused failed to apply for it.
Right To Be Examined By A Medical Practitioner: Section 54 of CrPC enumerates this right and it states that examination of arrested person by medical practitioner at the request of the arrested person. When an arrested person, whether on a charge or otherwise alleges at the time when he is produced before a Magistrate or at any time for which he is detained in custody that the examination of his body will afford evidence which will lead to disproving the commission of offence by him or which will establish the committing of offence by any other person against his body, the Magistrate shall, direct the examination of the body of such person by a registered medical practitioner.
Consequence of non-compliance with the provision relating to arrest
A trial will not be void simply because the provisions relating to arrest have not been fully complied with. If the court has jurisdiction to try an offence any illegality or irregularity in arrest will not oust the jurisdiction of the court to try the offence. The question whether the police officer making the arrest was acting within or beyond his power in effecting the arrest, does not affect the question whether the accused person was guilty or not guilty of the offence with which he is charged. Though the illegality or irregularity in making and arrest would not vitiate the trial of the arrested person, it would be quite material if such person is prosecuted on a charge of resistance to or escape from lawful custody.
If a private person attempts to make an illegal arrest the person against whom such attempt is made has every right to protect himself and to exercise his right of private defence in accordance with the provision contained in section 96 to 106 IPC. If the person making an illegal arrest is a police officer or a public servant then the right of private defence against such police officer a public servant will not be a wide as it is against a private person and would be subject to restriction content in section 99 IPC.
If a public servant having authority to make arrest knowingly exercise that authority in contravention of law and effects an illegal arrest hi can be prosecuted for an offence under section 220 IPC. Apart from this special provision any person who illegally another in punishable under section 342 IPC for wrongful confinement. If the arrest is illegal it is a sort of first in imprisonment and the person making such address exposed himself to a suit for damages in a civil court.
Conclusion and Opinion
As per my observation and research, what I make out that the CrPC, 1973 provides certain safeguards but till date the power of arrest given to the police is being misused. In common parlances it is believed that till today the police use authority in order to threaten arrested people and extort money from them. There have been reports that the police fail to inform the arrested people against the charges against them and do not provide them with adequate means of representation they should get. Thus it is very important to bring changes in Criminal Justice Administration so that the State knows that its primary duty is to seize and reform the wrongdoer and not just punish him. All of the proceedings go according to the Rule of Law which regulates functions of all organs of the State’s Machinery. It also includes people and agencies conducting prosecution and investigation cases. It is the first and foremost duty of the police to protect all individuals and their rights in society which also includes the arrested people. Thus, it is the duty of the police to also protect the rights of the accused and make sure that they are treated fairly according to the proceedings established by law and not harassed unnecessarily. The police should make sure that the person arrested is informed about his rights like grounds of arrest, if he / she is entitled to bail and produced before a magistrate within twenty four hours.
R.V.Kelkar’s, Criminal Procedure, 6th Ed. 2014 Estern Book Company.
P.S.A. Pillai's Criminal Law, 14th Ed. 2019 Lexis Nexis.
The Code Of Criminal Procedure,1973
The Indian Penal Code, 1860
The Constitution Of India,1950.
B.A.LL.B(Hons) 2018-23 Batch School of Law and Governance, Central University South Bihar, Gay