Pratheek Maddhi Reddy
Article 21 of the Indian constitution says, “No person shall be deprived of life or personal liberty except according to procedure established by law”. ‘Liberty’, succinctly, in its absolute sense, is the faculty of willing and the power to do what has been willed, without being influenced by any other source from within or from without.
To break when necessary and justified this liberty that we citizens in the modern legal systems hold so dear, with history brimmed with instances of revolution and war in attempting to attain it, the “procedure established by law” in Article 21, is the weapon. Pertinent currently, this procedure is – ARREST.
The word ‘arrest’ derives from a French word “arreter”, meaning to ‘stop’ or ‘stay’ and signifies a restraint of a person2. It is deprivation of a person of his liberty by a legal authority and such deprivation has to be total.
This paper would like to briefly analyse different provisions regarding arrest and then critically explicate the rights of the arrested in the Indian context.
The following are the provisions for affecting arrest.
1. S. 46 of CrPC (hereby referred to as the ‘code’) lays down the rudimentary procedure for arrest. An arrest can be affected only by touching the body of the person unless such person submits to the custody3 (e.g. confessing voluntarily4). S. 49 states that a person arrested shall not be subjected to more restraint than is necessary to prevent his escape.
S. 46(4) lays down the arrest law for women. No woman, save in exceptional circumstances with writing the reasons by the officer, shall be arrested after sunset and before sunrise. With the amount of crime by police in the country, this is an essential provision for safety of women.
2. Under S. 47, an occupier of a house is in a legal duty to afford the police reasonable facility to search. If the police face an obstruction in such search, they are entitled to use force to eradicate the obstruction (though certain restrictions are placed on this power in case of a Pardanashin woman residing).
3. Under S. 48, a police officer, for arresting any person without warrant, is authorized to pursue such person in any part of India. This power has also been emphasized in S. 22 of the Police code, 1861. In case of arrest with warrant, S. 77 comes into play. But, in either case, the special procedure in Ss. 78 or 81 need to be respected.
4. S. 60 authorizes the police to pursue and arrest a person who, in lawful custody, escapes or is rescued and as usual subject to Ss. 46 (arrest how made) and 49 (no unnecessary restraint).
5. In furtherance to S. 47, under S. 51, the police can search a person arrested without production of bail. The Police Act, 1861 mandates such search to be made in presence of independent and respectable witnesses and all the incriminating articles found be produced before the court under S. 102 of the code. If such a search is of a woman, the police shall maintain strict decency.
6. S. 53 of the code authorizes the police to conduct the medical examination of the arrested when it becomes necessary for investigation. As to the question that whether this section violates the constitutional privilege against self-incrimination, the law commission referred to the case of Kathi Kalu Oghad v State of Bombay5 which held that finger prints and hand writing samples do not by themselves go against Art. 23 of the Indian Constitution because they have to complemented by some other similar evidence that the police possess for possible conviction to occur.
S. 4 of Identification of the Prisoners Act, 1920 too empowers the police to take bodily measurements of the arrested person. An amendment to the code in 2005 spawned the new section of 53A for special procedure for examination of person accused of rape by medical practitioner.
7. S. 59 talks about discharge of person apprehended states that no person arrested by a police officer shall be discharged except on his own bond, or on bail, or under a special order of a magistrate.
In case of deviation from such rules by the police, punishment shall accrue under sections 224, 225 and 225B of the Indian Penal Code.
RIGHTS OF THE ARRESTED
Arrest probably is the most effective method for securing the attendance of the accused at his/her trial and also as a preventive or precautionary measure in respect of a person intending to commit a cognizable offence, or a habitual offender. It is a necessary requirement for efficiently and diligently dealing, in the interests of general public, with the problem of crime and criminals6.
But such concerns do not give, as Delhi HC pointed out, discretion to investigative agency to arrest in whim, fancy or in wholly arbitrary exercise of discretion. Because the accused’s liberty and society’s claims conflict, there is requirement of due reasonability and credibility in arrests made.
As long ago as 1215, the Magna Carta stated: “No free man shall be captured, imprisoned or diseased or outlawed or exiled… except by the lawful judgment by his peers or by law of the land.7”
The following are the rights of the arrested (restrictions imposed on police powers to arrest) as envisaged by the code:
a) Right to know the grounds of arrest: Under S. 50(1) of the code, the person arrested needs to be informed forthwith the reason for his arrest in language understandable by him8. If a subordinate officer is arresting, he will have to also show the order for such arrest from the senior officer. This right’s importance is better depicted in the fact that even constitution under Art. 22(1) confers it and in case of inconsistency with it, the arrest becomes illegal9.
In the old code, such a right didn’t exist in case of arrest with warrant. Since it doesn’t stand the test of constitutionality (Art. 22), the code had been amended adding the appropriate clause granting this right.
There is a slight inconsistency in the code: in case of arrest without warrant by a magistrate, then the arrest falls under S. 44 and not under sections that talk of this particular right (Ss. 50, 55 or 75)10. But in practice, since Article 22(1) mentions this right anyway, there exists no dispute.
This right helps the person to move the appropriate court for bail, make a writ petition for Habeas Corpus or make proper arrangements for defence and consult a legal practitioner more meaningfully.
Further, D. K. Basu v State of West Bengal11 guides that the police personnel should bear accurate and clear identification and his/her particulars be recorded in a register.
b) Right not to be detained for more than 24 hours without judicial scrutiny: Under S 57 of the code, a person shall not be detained for more than 24 hours12 without producing before a Magistrate. As explained by the SC in the case of Punjab v Aijab Singh13, this right which, like the previous one, is also mentioned in Art. 22(1) of the constitution governs only arrests without warrants, for those with warrants, S76 applies (shall be discussed subsequently).
In the code of 1898, under S. 151 (arrest to prevent the commission of cognizable offence) this time period has not been mentioned and it led to serious controversy. Resolving this, the code was amended adding the 24 hour time period into the section.
The main reason behind this right is, as stated by National Police Commission, wrongful use of arrest powers is one of the chief sources of corruption in the police. 60% of arrests made are unjustified14. It is a magistrate, known to be fair and impartial who is eligible to decide the fate of the arrested, not the police.
The right is for (i) preventing arrest for extracting confessions or to compel people to give information, (ii) to prevent use of police stations as prisons, and (iii) for immediate recourse to judicial officer. As said by the SC in Sharifbai v Abdul Razak15, if the police do not produce the person in 24 hours before a magistrate, it amounts to wrongful confinement.
c) Right to be examined by a medical practitioner: While S. 53 allows the police to conduct medical examination on the body of the arrested, S. 54 gives such person the right to demand the same. It is the duty of the police to inform the arrested person of this right16. The provision in 54 that in case of examination of a woman, it be done only under supervision of a female officer is now included in 53 too.
This right is crucial in aiding the arrested person build evidence that could help him in the court.
Regarding medical examinations, the SC has laid down guidelines that the arrestee should be subjected to medical examination every 48 hours during his detention17.
d) Right to consult a legal practitioner: An arrested person, not just under 303 of the code but also Art. 22(1) of the constitution has the right to consult a legal practitioner of his choice. The case of Nandini Satpathy v Dani18 has stated that a person has this right not only after arrest is made but before too, during interrogation, making its use more meaningful.
A part of this right, under 304 of the code and Art 21, when such person is an indigent, he/she is entitled to free legal aid by the state so as to ensure fair trial. Further, in a country where 80% of the population is indigent, it is hardly “fair, just and reasonable” to let the well off enjoy the benefit of a counsel and deny it to the poor. The right is also mentioned in Directive Principles of State Policy, Art. 39A.. To this end, central government constituted NALSA as the apex body regarding legal services available under the code. But, there is no express process mentioned in the relevant sections to classify someone as indigent.
e) Right to be taken before magistrate without delay: S. 56 of the code grants this right to be taken before a magistrate without delay and the person not to be confined anywhere else than the police station before such taking. Though Ss. 330 and 331 of IPC punish the police if harm or grievous hurt is caused by them to extort confession, allegations of custodial deaths have been increasing and there is a lack of proper machinery to tackle them and in such light this right and the following, regarding bail, are of utmost importance. The International Commission of Jurists state the arrestee’s right to be produced without delay as most basic of the procedures to be followed19.
f) Information regarding right to be released on bail: Under S. 50(2), if arrested for an offence not non-bailable, such person is to be informed of his right to bail. As observed in Joginder kumar v State20, “arrest and detention in police lock up can cause incalculable harm to the reputation and self-esteem of a person. This right regarding bail upholds the principle, “innocence until proven guilty21” in the most practicable way so that a person is deprived of life and liberty only by a ‘reasonable, just and fair’ procedure established by law22 (Art. 21).
g) Right to compensation when unlawfully arrested: Art. 9(5) of International Covenant on Civil and Political Rights, 1966, to which India ratified, mandates compensation for anyone arrested or detained unlawfully. In the case of Nilabati Behera v State of Orissa23, deciding on these lines, the court comments that the purpose of law is not only to civilize public power but also to assure people of a legal system that protects their interests and preserves their rights.
Consequences of non-compliance: A trial is not vitiated on mere non-compliance with these provisions but the police in such case shall be punishable under S. 220 IPC.
This paper concludes with the note: while all these rights and duties exist, there still exists huge inconsistency in praxis as observed by law commission’s 177th report24. Bhagvati, J. in Khatri v State of Bihar25 in the SC comments, “…instances of the cruel and barbaric manner in which the administrators of law deal with persons arrested by them… what may aptly be described as a crime against the very essence of humanity” and Prof. Madhav Menon Committee in its recommendations to changes in criminal law statutes doesn’t hesitate in referring to the law enforcement as “the extortionist police”. While law on the paper is constantly bettered, the actuality still remains grim26.
1 Pratheek Maddhi Reddy, 3rd BBA LLB, Jindal Global Law School
2 Bellary Uma Devi, Arrest Detention, and Criminal Justice System: A Study in the Context of the Constitution of India, 2012
3 Supt. & Remebrancer of Legal Affairs v Kaloo Khan, (1948) 49 Cri LJ 22: AIR 1948 Cal 68.
4 Bharosa v Emperor, AIR 1941 Nag 86, 90
5 1961 AIR 1808, 1962 SCR (3) 10
6 Bellary Uma Devi, Arrest Detention, and Criminal Justice System: A Study in the Context of the Constitution of India, 2012
7 Black, Henry. A Law Dictionary, page 709 (West Publishing 1910).
8 Harikisan vs The State Of Maharashtra, (1962) 64 BOMLR 522
9 Satish Chandra Rai And Anr. vs Jodu Nandan Singh, (1899) ILR 26 Cal 743
10 R. V. Kelkar, R. V. Kelkar’s Criminal Procedure, 6th edition (2014), pg. 82
12 exclusive of the journey period
13 1953 AIR 10, 1953 SCR 254
14 Consultation Paper on Law Relating to Arrest, Law Commission of India, Part I Law Relating to Arrest, pg. 9
15 AIR 1961 Bom 42
16 Sheela Barse v State of Maharashtra, JT 1988 (3) 15
17 D. K. Basu v State of WB, AIR1997SC610
18 1978 AIR 1025, 1978 SCR (3) 608
19 Manish Mehrotra, POLICE CUSTODY AND BASIC INDIVIDUAL RIGHTS, [J.T.R.I. JOURNAL – Second Year, Issue – 4 & 5 – Year – March, 1996,
20 1994 AIR 1349, 1994 SCC (4) 260
21 Volume 1, Justice VS Malimath, Committee on Reforms of Criminal Justice System, March, 2003
22 Maneka Gandhi vs Union Of India, 1978 AIR 597, 1978 SCR (2) 621
23 1993 AIR 1960, 1993 SCR (2) 581
24 177th report; Law Commission of India, On Law Relating to Arrest, December 2001
25 1981 SCR (2) 408, 1981 SCC (1) 627
26 D. K. Basu v State of WB, AIR1997SC610;