ARREST LAWS IN INDIA

INTRODUCTION:

The act of “taking or keeping of a person in custody by a legal authority, esp. in response to a criminal charge is termed as an arrest.”[1] The apex court defining arrest has said that it is the act of being taken into custody to be formally charged with a crime.[2] The Indian constitution has guaranteed every citizen the right to life and personal liberty.[3] Undoubtedly, this is one of the most important rights which has been guaranteed to individuals. The scope of ‘life’ and ‘personal liberty under this article has only been evolving over time, however, the basic idea is that ‘life’ doesn’t merely end at breathing. It includes living life with human decency and dignity, and now also includes access to the internet.[4]

The term ‘personal liberty also has been interpreted by the Courts and its scope has only been widening with time. Before the Maneka Gandhi judgement[5], the scope of personal liberty was much narrower than it is now. In its judgement, the court opined that personal liberty covered a variety of rights and must be interpreted to its widest amplitude. Moreover, the citizens are also guaranteed safeguards against arbitrary arrest and detention.[6] Similarly, Article 20 of the constitution protects the citizens against convictions of offences. One might argue that arrest of a person infringes a citizen’s fundamental rights guaranteed by the Constitution, however, one must remember that these rights are subject to certain reasonable restrictions.

Justice Chandramauli Kumar Prasad and Justice Pinaki Chandra Ghose have rightly pointed out that “arrest brings humiliation, curtails freedom and casts scars forever. Arrests are largely been considered as a tool for harassment, oppression and surely has not been considered a friend of the public. They have also emphasized that power of arrest is one of the lucrative source of police corruption.[7]”

The laws relating to arrest under the Code of Criminal Procedure have been made in accordance with the Indian Constitution to ensure that there is no scope for any arbitrary or false incarnation of any person. It is known to all that power corrupts and absolute power corrupts absolutely. These laws hence also prevent the misuse of power by the authorities and also falls in place with the general criminal law presumption of “innocent until proven guilty.”

PROVISIONS RELATING TO ARREST UNDER CR.P.C

The fifth chapter of the Code of Criminal Procedure, 1973, gives the provisions for arrest of a person. It can be made two ways:

• Arrest made following a warrant issued by Magistrate.
• Arrest made without such a warrant, but which is made in accordance with some, legal provision validating such arrest.
• ARREST WITH A WARRANT:

A magistrate with competent jurisdiction, in cases where necessary, may issue a warrant of arrest in both cognizable and non-cognizable cases. These warrants can be issued in both summon and warrant cases. Wherein the magistrate thinks that a summon would not be obeyed or that the person might abscond, he can issue a warrant for his arrest. Chapter VI (B) of the Code deals with warrant of arrest.

• ARREST WITHOUT A WARRANT:

Section 41 of the code says that a police officer may arrest a person without a warrant, who in his presence commits a cognizable offence, or a person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, punishable with imprisonment of 7 or more years.

Police officer also has been given the power to –

1. arrest proclaimed offender under this code,
2. person with whom found any stolen property,
3. person who obstructs officer while in the execution of his duty,
4. deserter from any arms force,
5. a person committed any act outside India, would have been punishable as an offence in India, on breach of any rule made for bail.

Section 42 states that, when any person, in presence of the officer, commits a non-cognizable offence and on-demand of such officer refuses to give his name and residence or if he gives a name or residence for which police officer has a reason to believe is false, police officer may arrest such person in order to ascertain his name or residence. However, when true name and address has been ascertained, he shall be released on a bond, with or without sureties, to appear before a magistrate if so required.

Moreover, if that person is foreigner, the bond shall be secured by a surety or sureties who are residing in India. Provided that, if the true name and residence of the person is not ascertained within twenty-four hours of arrest or if he fails to execute the bond, or, if so required, to furnish sufficient sureties, he shall be brought before a nearest magistrate having jurisdiction without delay.

According to section 43, any private person can make an arrest of a person who in his presence has committed a non-bailable, cognizable offence or is a proclaimed offender. The person must then without necessary delay take the accused to the nearest police station.

It further states that if the police officer has reason to believe that the arrested person comes under the provision of section 41, the police officer shall re-arrest him. And if the person has committed a non-cognizable offence, the police officer shall follow section 42 of the code, but he shall be released if there is no reason to believe that he has committed any offence.

Section 44 says that when an offence is committed in the presence of a magistrate, whether executive or judicial, within his local jurisdiction, he may arrest or order any person to arrest the offender.

SOME OTHER PROVISIONS RELATING TO ARREST UNDER THE CODE:

The code in section 60 says that if a person in lawful custody escapes or is rescued, the police officer from whose custody he escaped or recused may immediately pursue and arrest him in any place in India.

Section 129 (2) of Cr.P.C states that any officer in charge of a Police Station or in the absence of such officer-in-charge, any officer who is not below the rank of a Sub-Inspector, while dispersing any unlawful assembly if situation arises, may proceed to arrest and confine the persons who form part of the unlawful assembly in order to disperse such assembly or that they may be punished according to law.

Section 151 Cr.P.C says that any person/persons designing to commit any cognizable offence can be prevented by the arrest.

Section 300 (3) Cr.P.C. states that when a person is convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he has been convicted, he may afterwards be tried for such last-mentioned offence, if the consequences had not happened, or were not known to the court to have happened, at the time when he was convicted.

Section 432 (3) Cr.P.C. says that if any condition on which a sentence has been suspended or remitted is, not fulfilled, the appropriate government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may if at large, be arrested by any Police officer without warrant.

POWERS TO ARREST UNDER THE POLICE ACT, 1861 :

The act states that it shall be lawful for any Police officer to take into custody, without a warrant, any person who within his view commit offences (under section 34 of the Police Act 1861) like obstruction, inconvenience, annoyance, risk, danger or damage of the residents or passengers on roads, etc.

PROCEDURE OF MAKING AN ARREST:

Section 46 of the Cr.P.C. talks about how arrests are to be made. Clause (1) of this section states that in making an arrest the police shall actually touch or confine the body of the person who is to be arrested. In the case of a female accused, she shall not be touched unless the officer is a female. However, in exceptional situations, contrary to what is mentioned can be done.

Section 46 (2) give a police officer to use a reasonable amount of force when the person being arrested forcibly resists or makes an attempt to evade arrest. Though an officer is allowed to use force, the next clause, i.e., section 46(3) does not give any officer making an arrest the right to cause the death of a person who is accused in petty offences.

Section 46(4) lays down certain restrictions on the time frame of when women can be arrested. According to this section, no women can be arrested after sunset or before sunrise. However, a female officer, after making a written report and obtaining prior permission from a Magistrate of competent jurisdiction may make an arrest before sunrise or after sunset, only in exceptional cases.

CASE LAWS:

The Hon’ble Apex Court issued numerous pointers that are to be observed at the time of making arrest, detention or interrogation adhering to Article 21 and Article 22(1)[8] in the case of D.K. Basu v. State of West Bengal[9]. The court also opined that if these procedures or guidelines are not followed, the official making the arrest shall be liable for punishment for the contempt of court. The guidelines were as follows:

1. The officer carrying out the arrest or interrogation must have clear identification tags with their name and designation.
2. An arrest memo should me made at the time of arrest.
3. The arrestee is entitled to have a friend or relative or any other person who is known to him that he has been detained or arrested at any particular place,
4. The place, time and venue of custody must be notified by the police officers and if the relatives or friends live outside the town, the legal aid organization of the district and the police with jurisdiction in that area shall inform the concerned persons withing 8 to 12 hours of the arrest.
5. Arrestee must be aware of his right to inform someone of his arrest.
6. Entry should be made in an register at the place of detention. It shall have the name of person in custody, and the details of the person who has been informed of such arrest or detention and details of the police officer making an arrest.
7. Arrestee should be examined by a medical practitioner and every major and minor injury on his body has to be recorded. The inspection memo has to be signed by arrestee and the concerned officer and a copy of the same is to be provided to the arrestee.
8. A medical examination must be conducted on the arrestee every 48 hours.
9. A copy of all documents, including the arrest memo must be sent to the Magistrate of competent jurisdiction.
10. The arrestee should be permitted to meet his lawyer during interrogation, but not throughout the whole process.
11. A police control room should be established at a district and state headquarters. These control rooms shall be given the information about the arrest and place of custody of the arrestee, within 12 hours of the arrest.

In another landmark judgment by the apex court in Arnesh Kumar v. State of Bihar[10], the court rightly held that no arrest must be made on the grounds that the offence which has allegedly been committed is non-bailable and cognizable. They further ascertained that the arrest should not be casual and based on mere allegation, rather should be preceded by initial investigations by the officer to assess the genuineness of the complaint made. Moreover, if the arrest is made under section 41 of the Cr.P.C. , the officer shall furnish the materials and reasons which necessitated the arrest and the detention of the accused shall only be authorized after the Magistrate is satisfied with the report submitted.

In the case of Roshan Beevi v. Joint Secretary to Government of Tamil Nadu[11]laid down the essential elements for an arrest as:

1. There must be an intent to make an arrest under legal authority
2. There must be seizure or detention of a person
3. The person must be in the lawful custody of the arresting person
4. The arrest must include the act of actual confining of the person and not mere oral declaration of arrest

The courts have been working in order to ensure that no person is being harassed while in police custody and none of his fundamental rights is being infringed. The courts have made sure that the state could no longer escape the liability in public law and have compelled them to compensation when they’ve committed a gross violation of one’s fundamental rights as well as the basic human rights.[12]

In Sheela Barse v. State of Maharashtra[13], the court took a look at the matter brought by a journalist and issued guidelines for the protection of female prisoners in jails. The guidelines issued were as:

1. There should be separate lockups for female prisoners and they must be guarded by female police officers only.
2. Interrogation of the female prisoners should only be done in the presence of female officers only.
3. The person should be informed about the grounds of her arrest and the provisions of bail.
4. It is mandatory that a female suspect is to be checked by a female police officer only (section 160 (1) Cr.P.C.)
5. Women prisoners cannot be arrest before sunrise and after sunset.

CONCLUSION:

Notwithstanding the safeguards provided by the Constitution, Cr.P.C., and the judicial precedents, the fact that the power of arrest is wrongfully and illegally exercised all over the country. The provisions of arrest were made to detain the criminals and to keep society safe, and not to use it as a tool for one’s personal benefit. The National Police Commission in its Third Report referring to the quality of arrest suggested that nearly 60% of the arrests made were either unnecessary or unjustified, and the numbers have only seen a surge since then.[14] Arrest should not be made merely because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing and the justification for its exercise is another. It is necessary for the Police Officer to justify the reason for arrest. The courts in cases relating to arrest and detention have been a guardian for all the accused and convicts since the beginning of time, and it is necessary that courts keep a check that the powers which have been conferred on the officers are not being used for illegal or wrongful purposes.

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[1] The Black’s Law Dictionary, 8^th Edn.

[2] R.R. Chari v. State of Uttar Pradesh

[3] Article 21, The Constitution of India, 1950

[4] Faheema Shirin v State of Kerala, WP (C) No. 19716 Of 2019 (L)

[5] Maneka Gandhi v Union of India, 1978 SCR (2) 621

[6] Article 22, The Constitution of India, 1950

[7] Vijay Pal Dalmia, Law & Rights Before Arrest & After Arrest in India (Monday, 14^th Feb. 2020) <https://www.mondaq.com/india/crime/893728/law-rights-before-arrest-after-arrest-in-india>

[8] The Constitution of India, 1950

[9] D.K. Basu v. State of West Bengal, AIR 1997 SC 610

[10] Arnesh Kumar v. the State of Bihar (2014) 8 SCC 273

[11] Roshan Beevi v. Joint Secretary to Government of Tamil Nadu (1983 Mad LW (Cri) 196)

[12] Nilabati Behara v. State of Orissa (AIR 1993 SC 1960)

[13] Sheela Barse v. State of Maharashtra (AIR 1983 SC 378)

[14] Law Commission of India, https://lawcommissionofindia.nic.in/reports/177rptp2.pdf