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Arrest
1. Meaning and Purpose
Arrest means apprehension of a person by leg
deprivation of his liberty. For instance, when a police officer ap
a pick-pocket he is arresting the pick-pocket; but when a dace
hends a person with a view to extract ransom, the dacoit 1s not arres!
that person but wrongfully confining him. Secondly, every compulsi
physical restraint is not arrest but when the restraint is total and ¢
uion of liberty is complete, that would amount to arrest.
Arrest of a person might be necessary under the following circur
al authority result!
stances:
(1) For securing attendance of an_accused at tria —When a per
is to be tried on the charge of some crime. his attendance «'
time of trial becomes necessary. If his attendance is not lik
to be ensured by issuing a notice or summons to him. prooao.y
his arrest and detention is the only effective method of »
his presence at the tial,!
revenive or precautionary measure. —If there is imm:
of the commission ol a serious crime (cognizad
dang
fence), arrest of the person intending to commit such a ct
2 bs
: d may become necessary as a preventive measure.” There m
Mi other circumstances where it is necessary as a precautionary
measure to arrest a habitual offender or an ex-convict. a
person found under suspicious circumstances.
(3) For obtaining correct name and address.—Where a person. on
being asked by a police officer, refuses to give his name and
address. then under certain circumstances, would be proper on
the part of the police to arrest such a person with a view lo
ascertain his correct name and addres: St 42)
(4) For removing obstruction to police. —W hoever obstructs a police
Officer in the execution of his duty would be and should be hable
(2)
1. See S. 204 read with S$. 87: also see clauses (a) and (c) of S 41(1) and S. 43
2 SeeS.15! Sail
3. See S. 41(2) in respect of persons specified in S. 110: see also S. 41 KAY - 2
4. See clauses (b) and (d) of S. 41(1); see also S. 41(2) in respect of persons specitied 19
S. 109.
5. See S. 42.L
nares on Criminal Procedure
to be arrested then and th
e by such
ods.
caped trom lawlul custody should be
<— police.”
1
AIDE
2. Decision to arrest
“A person wh
oeA Person who fas
Arrested forthwith by tne
We now know the circumstances in which “arrest of
essential or at least desirable, The determination a, at Ol @ Person is
such circumstances and the consequent decision to
fairly having due regard to the liberty of the indivi
or the society. Ideally a judicial officer is best suited to decide
with a fair measure of reasonableness. impartiality
Therefore. basically it is for a magistrate to make an
information generally obtained from the police of ti
the magistrate makes a decision to arr
aS 1 the existence of
attest should be made
‘dual and the interests
uch issues,
and detachment
1 t he would issue a warrant of
arvest. A warrant of arrest is a written order signed. se.
J ‘aled and issued by
4 magistrate and addressed to a police officer or some other person
specially named and commanding him to artest the body of the (aceused,
person named in it
Jt would also be seen that there might be circumstances where prompt
and immediate arrest is needed and
there is no time to approach a
magistrate and obtain a warrant from him. For instance, in a case where
serious crime has been perpetrated by a dangerous pe
son and there is
cxery chance of the person absconding unless immediately arrested, it
‘sould be certainly unwise to insist on the arrest being made only after
optaining a warrant from a magistrate. There may be occasions where
preventive action may be necessary in order to avert the danger of sudden
cak of crime, and immediate arrest of the trouble-maker may be an
Mportant step in such preventive action. In those cases, often the arrest-
vecision will have to be made by a person other than a judicial magistrate.
Ip such cases it is the investigating agency which has discretion to effect
urests. In exercising its discretion it may sometimes arrest some individ-
us whereas their co-accused are not arrested and detained. In such a
case the Delhi High Court opined that in a country governed by rule of
aw the discretion of the investigating agency does not mean whim, fancy
o¢ Wholly arbitrary exercis
of discretion®. In all cases where arrests are
de by the investigating agency, however, the Code contemplates a
judicial scrutiny soon after such arrest. According to the Code, every
6. See S. 41(1Xe).
7. Ibid.
8. See Binoy Jacob v. CBI, 1993 Cri LI 1293 (Del HC).
Sheet :
4 Police atticer*
essential for the elective discharge of police yet” This isp, | (1) @ )
§) For retaking a person escaped from cus ;
oct
ace
posse stellen aoe ne sa
ee
3)
P
y
v
'yi Ce?
RSF.
2
4" arren
0 the
OHO Anestod without a warrant 1s juired 10 be produced before 1
I sa weihin Sa ure of his arrest.‘The police is repored
fy such @ case
e within 24 4 ap
egal t quite 0
egal requirement qu ‘in Stived by 8
Hucticoal magi
We have: 1 Flesurtinnge tht
the Kerala High Court riled that whenever a complaint but has
Mawistrate that a porson has heen arrested within his jurisdiction a ty
Not been produced hetore him within 24 hours or a complaint is MACE
ion beyond
Him that a person iy being detained within his jurisdict
hours of his atvest he cun and should call upon the police off
40 stale, Whether the allegations are true, and if so, on wl
whose custody he is being so held,
ih IF the officer denies the arrest the magistrate can make an inquiry and
8 appropriate orders.” Further detention shall be illegal untess permitted
by & competent judicial magistrate,!?
Thuy it would be seen that the Code contemplates two types of arrests:
(a) arrest made in pursuance of a warrant issued by a magistrate; and (b)
aitrest made without such a warrant but made in accordance with some
legal provision permitting such an arrest.
ficer concerned
hat and under
3.
Arrest with a warrant
We have earlier seen the distinction between cognizable and non-cog-
hizable offences.!' Where a person has been concerned in a non-cogniz-
able offence, he cannot, except in a few cases to be considered later, be
arrested without a warrant. The Code however does not expressly em-
Power a magistrate to issue a warrant of arrest before taking cognizance
of any such offence, much less does it mention the circumstances in which
such a warrant can be issued, In the absence of any restrictive provision,
it may perhaps be theoretically possible for a magistrate to issue a warrant
of arrest in case of a cognizable or non-cognizable offence even before
taking cognizance of the offence: in practice a warrant for arrest is hardly
ever issued prior to taking cognizance of the offence.
TA warrant for arrest may be issued by a magistrate after taking
cognizance of any offence, whether ‘cognizable’ or “non-cogniz-
able’.'?/Here the distinction between a summons case and a warrant cas
9. Pounwinv Sid of Police, 1993 Cri LJ 2183 (Ker HC). See Sections 56 and 57 CrPC and
‘Att, 22(2) of the Constitution, See also Joginder Singh v, State of U.P...(1994) 4 SCC
260 supra n. 72 and Ashak Hussain Allah Detha alias Siddique v. Asstt, Collector of
Customs, 1990 Cri LJ 2201 (Bom HC) wherein the High Court observed that the arrest
commences with the restraint placed on the liberty of the accused and not with the me
Of arrest recorded by the arresting officer.
10. See Ss. $7 and 167
11. See Lecture 1, para 5, Firstly:
12. See $s, 204 and 87,i eee .
:
ad Lectures on Criminal Procedure (Lect. 4
is refevant.!” If the case in which the cognizance has been taken is a :
1d to the accused person in the
summons case, a summons shall be iss
and if the case is a warrant case,
first instance for his attendance in cou!
4 warrant for the arrest of the accused may normally be issued for causing
the accused to be brought before the court.!4 The Code however gives
discretion to the magistrate to depart from this general rule if the cireurn-
Siances so demand in a particular case.!5 For instance, if, at any time, the
magistrate has reason to believe that the accused has absconded or would
not obey the summons, he may issue a warrant for his afrest.
In practice, however, the magistrate has hardly any occasion tlissue
2 Warrant of arrest if he has taken cognizance of a cognizable offence on
“Police report, because, the police report is submitted to the magistrate
duct the Police has completed the investigation into the offence: and
Curing the investigation the police has power to arrest without warrant a
Petson involved in the commission of a cognizable offence.}6 Further the
Police is under a legal duty to apprehend every person whom it is legally
authorised to apprehend.'? These provisions lead to the arrest and pro-
duction of the accused before the court during investigation and therefore
there would be no occasion in practice for issuing a warrant after taking
Cognizance of any offence can be taken by a magistrate not only
jon a police report but also (i) upon receiving a complaint, of (ii) upon
information received from any person other than a police officer. or (iif)
upon the knowledge of the magistrate himsclf.'* Tn such cases -ge-where
the cognizance has been taken ‘on a Police report in respect of a non-cog-
nizable offence, the magistrate may issue a warrant for arrest in accord-
ance with the above-mentioned rules.
Detailed provisions have been made in Sections 70-73 in respect of
form and contents of a warrant for arrest." Form 2 in the Second Schedule
indicates the form in which such a warrant may be issued. Provisions
have been made in Sections 74-81 in respect of the mode of the execution
of a warrant for arrest. Sections 37 and 38 deal with the duty and power
of a private citizen to assist in the execution of a warrant for arrest. For
a general understanding of these matters the sections mentioned above
may be looked into.
13, See Lecture |, para 5, Thirdly.
14. See S. 204,
15. See S. 87.
16. See S. 41
17. See S. 23 of the Police Act, 1861.
18. See S. 190.
it Sanjay Suri
19. Warrant for detention should specify age of the person to be detained. See
v. Dethi Admn., 1988 Supp SCC 160 : 1988 SCC (Cri) 348 : 1988 Cri LJ 70S.
cognizance of a cognizable offence on a police report. ,
K ’PREIS HERS Weng? OMT TTB 0 op rer cast
© & Petr offen ir Aap: apelin Ma Hin,
Ca Woy Peston Troe lho bmi an nani
a) Arg, agri Bicte rriay cette 7 1c iaTD lirartart
3} Arrest 25
{ 4 Arrest without # warrant
: We have allready seen the necessity of making arrest without a warra
under emergent circumstances. Powers to arrest without warrant ax
mainly and widely conferred on the police: but in some circumstanc
these are conferred on others also.
(A) A police officer may arrest without a warrant—
(1) any person actually concerned or reasonably suspected (0
concemed in a cognizable offence:
(2) any person who, in the presence of such an officer. ha
committed or has been accused of committing a non-cogni~
le otience and refuses to give his true name or residence
In such @ case the arrest is to be made for the purpose 0
ascertaining the name or residence; and after such ascertain
ment the arrested person is to be released on his executine
2 Sond (with or without sureties) to appear before a may)
trate if so required. If such ascertainment or execution «
bond could not be had within 24 hours from the time o!
J arrest. the arrested person shall be forwarded to the nearest
pol magistrate having jurisdiction;2!
TY, (3) any person concemed or reasonably suspected to be con
. cerned in any act committed at a place outside India which
it committed in India would be punishable as an offence for
which he would be liable to be apprehended or detained in
custody in India:?
(4) any person for whose arrest any requisition is received trom
another police officer competent to arrest that person without
a warrant:
(5) any person reasonably suspected of being a deserter from
any of the Armed Forces of the Union;”+
(6) any person found in possesson of any implement of house-
breaking without any lawful excuse:
(7) any person found in possession of property reasonably sus
pected to be stolen. and who may be reasonably suspected o!
having committed an offence with reference to such property
20. See S. 4111 Ka
21 See $. 42.
22. SeeS 411 xg).
23 SeeS sitnny
24. See S. 41h
25. See S411 Kb
26. SeeS 41 1Kd)Lectures on Criminal Procedure
28 (Leet.
2 (8) any person obstructing a pohee officer in the discharge of
his duties:
(9) any person who ha
(10) any released convict
under Section 356(5):
(11) any person designing £0 Commit a cognizable offence which
cannot be prevented (except) by the arrest of such a persons
(B) In addition. a police officer in charge of a police station may as
4 preventive measure arrest without warrant any-peron belonging ie one
or more of the caiegories of Persons specified(in Section 109 or Section
€.g. persons taking precautions to conctal their presence with a
(Siew to committing a cognizable offence: habitual robbers, here,
breakers. thieves. etc. and persons habitually induleing in the commen
of cenain social and economic offences.
‘An unusual situation created by the unlawful arrest of a magistrate
by the potice has made the Supreme Court™ issue the following guidelines
to be followed by the State Govts. and the High Courts while effecting
the arrest of a subordinate judicial officer:—
scaped from lawful Custody :2*
Mittin 4 breach ¢
any rule made
(a) If a judicial officer is to be arrested for some offence, it should
be done under intimation to the District Judge or the High Coun
as the case may be.
(6) If the facts and circumstances necessitate the immediate arrest.
of a judicial officer of the subordinate Judiciary, a technical or
formal arrest may be effected.
(c) The fact of such arrest should be immediately communicated to
the District and Sessions Judge of the concemed District and the
Chief Justice of the High Court.
(d) The judicial officer so arrested shall not be taken to a police
Station, without the prior order or directions of the District and
Sessions Judge of the concerned district, if available.
(e) Immediate facilities shall be Provided to the judicial officer, for
communication with his family members, legal advisers and
Judicial officers. including the District and Sessions Judge.
27. See S. 41(1 Xe)
28. Ibid.
29. See S. 411A).
30. See S. 151.
a See S. 41(2); see also $s. 109 and 110
2. Se Delhi Judicial Service Assn. Tis Hazari Court v. State of Gujarat, 1991) 4 SCCme SR.
n
Arrest :
No statement Of a judicial officer who is under arrest be recorded
ny medical test
gal adviser of the
ricer concerned oF anther judicial officer of equal OF
F funk, if available
(2) There should be no handcuffing of a judicial officer. If aerial
violent resistance to arrest is offered or there 1s imminend tor
to effect physical arrest in order to avert danger to life sated.
the person resisting arrest may be overpowered and et aid
In such case, immediate report shall be made to the Dis i the
Ps Sessions Judge condemned and also to the Chief Justice of
High Coun. ae
The Court has added that these are pot exhaustive and that if the
arrest and handcuffing are found to be unjustified the police officer would
be guilty of misconduct and personally liable for compensation or da
ages as may be summarily determined by the High Court.
(C) Any private person may arrest without a warrant” — F
1, (1) any person committing a non-bailable and cognizable of-
a fence in his presence; or
(2) any proclaimed offender.
Such a private person arresting another shall, without delay, make
‘over the arrested person to a police officer or if necessary take the arrested
person in custody to the nearest police station. The police officer may
then re-arrest the person so handed over to him, if any of the above-men-
tioned provisions for arrest without a warrant by a police officer is
applicable; and if no such provision is applicable, he shall at once release
that person.
(D) Any magistrate may arrest without a warrant—
| “ (J) any person committing any offence within the local jurisdic-
¥
tion of, and in the presence of, such magistrate;>> or
(2) any person within his local jurisdiction for whose arrest he
4 4% is competent to issue a warrant2°
& Mae the above rules contained in (A), (B), (C) and (D), a member
of the Armed Forces shall not be arrested for anything done or purported to
be done by him in the discharge of his official duties except after obtaining
the consent of the Government controlling the concemed Armed Force37
33. See S. 4311)
34, See sub-seciions (2) and (3) of S. 43.
35. See 441)
36. SeeS. 44(2), \
37. Sees. 45
«
e
e@
«
«
«
(
(
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-
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=> . “a
¢ Aer bier, Ah) Plo ty
28 Lectuhey on Criminal Procedure bec 4
S. Arrest howmade ( es Se og sire oh
Whether the arrest to be made is wit Ot OF without a warrant, A 7 tathee
it ts necessary. thal in making such an arrest the police officer or other See ime
person making the same actually touches or confines the body of the © *@ape
person to be arrested unless there be a submission to custody by word or
action. An oral declaration of arrest without actual contact or submission
to custody will not amount to arrest.
The importance of the precise arrest-procedure becomes ob»
while determining the question as to whether at a particular time a :
was under arrest or not. 7
The Code gives the following powers for effecting an arrest— 46
(1) Bower to use force—{fhe person making an arrest may u
Means necessary to make the arrest if the person to be arre:
resists the endeavour to arrest him or attempts to evade
ratte the power to use necessary force for making |
an arrest shall not extend to causing the death of a person who
is not accused of an offence punishable with death or
imprisonment for life.‘ lt may also be noted that the
arrested is not to be subjected to more restraint than is necess
to prevent his escape.‘! J
Time and again the Supreme Court has been emphasising th:
for exercising caution in subjecting the arrested person to handc
Since the police has been. allegedly handcuffing arrested persons indis-
criminately. in spite of the courts’ warnings, the Supreme Court has
ordered thus: ke we
“In all the cases where a person arrested by police is produced 9 :
before the magistrate and remand—judicial or non judicial—
by the magistrate the person concerned shall not be handcutted
special orders in this respect are obtained from the Magistrate
time of the grant of the remand.
When the police arrests a person in execution of a warrant of tute
arrest obtained from a Magistrate the person so arrested shall not be Ig
handcuffed unless the police has also obtained orders from the Magis-
trate for the handcuffing of the person to be so arrested.
Where a person is arrested by the police without warrant the
police officer concerned may if he is satisfied. on the basis of the
38. See S. 46(1). Also see observations in Roshan Beewt v. Jt. Sey t Govt. of LN. 1984
Cri LJ 134 (FB) (Mad).
39. See S. 46(2)
40. See S. 46(3)
41, See S. 49.Pile 1 RTH
29
: “ Arrest
3) handeuff
s necessary to
Evidlines piven by us in para above, thai i necessary Jo andi!
such a person, he may do so tll the ti sgistrate, Further
aD Pogues “7 mash © borsony he hin production before the Magistrate, Further
ther Fee BART | se of fetters thereafter can naly be under the orders
the OMRYOEE Fs aicendly indicated by u Sa cites
ae i (2) Power te search a place.-An occupier of a hous under §
on. : legal duty to afford to the police, and to any person acti
« warrant of arrest, all the facilities to search the house tor the
Purpose of making arrests. If such facilities are denied or :
structions are put in the search, the police officer (or other persor
executing a warrant) shall have power to use force for
entry into the house for search and also for the Purpose
hiberating himself in case he is detained in the house. The
Powers are subject to reasonable restrictions if the part o! th
house to be searched is in occupation of any pardanashir
7 <— woman.* om
cE 3) Power —fr police officer may, for the purpose ot
ae arresting without warrant any person whom he is authorised 1g.
TA a arent trae a person into any place in India,‘ >
ie SecF7B Incase the arrest is to be made under a warrapf, Section 77
=< of the Code makes it clear that the warrant may Boexceuted
any place in India. However, when a warrant of arrest is to he
. executed outside the local jurisdiction of the court issuing it. 1
special procedure as prescribed in Sections 78-81, will have t
L be followed,
$e wat? 44), Power to obtain assistance —A police officer can reasonably ask
any Person to assist him in the taking of or preventing the escane
FOF any other person whom he (the Officer) is authorised tw
one y Pp
7 arrest.“ The person asked to assist is under a legal obligation to
nj » give assistance eee failure on his part is punish
: able under Sectj6n 187, LPC
watt
. ,
| {5) Power to require subordisare officer to arrest—Any ofticer in
Jetta
V
charge of a police station, or any police officer making an
investigation under Chapter XII of the Code, can require any
subordinate officer to arrest without a warrant (other than in his
Presence) anYeperson who may lawfully be arrested witho: a
warrant. and shall deliver to the officer So required an order in
H. See S. 4
45. See $37rearrest escapee I person in Lowiyh
cacapes of is rescued, ihe racy eaten ew Wony fe
rescued may immed MISue and arrest him in
wea ‘dia, The person making such a re-arrecs inal tere,
Mime powers and duties as Mentioned above sn sub-paragraph
and (2) in respect of using force for arrest, and of seach vy
place ote” fut Go
Sec? 2 After-arrest procedures
: Scanch of arrested person.—Whenever a person who is arrested -
Shnot legally be admitted to bail, ot is unabie to furmsh bait
the police officer making the arrest (or to whom the arrested
person is made over after arrest by a private person) may search
such a person. and place in safe custody all articies. other than
Lee necessary wearing apparel, found upon him. A receipt showing
te the articles so seized shall be given.to such a person.fThe police's. =
FO siture to take out a recovery re irregularity—was how- —
1: :
sole £7 ever held not vitiating the wial.® Where the arrested person is 2% 4
whet €
Power 10
(re
990 woman the search shall be made by another woman with strict
ae et to decency.*? A
2) Seizure of offensive weapons —The police officer or other person ¢ A 5%
ct SI making any arrest may take from the person arrested any offens- >
= ive weapons which he has about his person. and shall deliver all
weapons so taken to the court or officer before which or whom
the arrested person is to be produced.*”
(3) Medical examination of accused —If the offence with which the
arrested person is charged is of such a nature and is alleged to
have been committed under such circumstances that the evidence
as to the commission of the offence would be afforded by the
medical examination of such an arrested person, then, at the
instance of a police officer not below the rank of a sub-inspector,
such examination could be made by a registered medical practi-
Uoner in order to ascertain the facts that might afford such
evidence. For the purposes of such medical examination such
force as is reasonably necessary could also be used. If the person
é 6. See S.55, ’
47. See S. 60,
48 s, 3
= eect ¥. State, 1990 Cri LJ 858 (All HC).
2 D Sees. 591 Arrest
at
«woman the examination sh
Pz are istered lady medi
be made
to be I prac
dS. Se under the supervision of. m Fee
o', Uboner © viol
Fee Neh meen examination a eam LS 0 tt
of Aruele 2013) of the Constitution iemself
Shonciing the artes person to be # witness” against MEET
The examination is not restrictively confined to what is: cat
con the body’ itself; it may include testing of blood. spr,
semen, urine ete. depending upon the nature of the ease. IF We
process of examination is reasonable, then the discomfort. Fh
or hurt caused 10 the examinee in such examination is just
by the section.
“Though the examination is to be done at the instance of @
police officer not below the rank of sub-inspector. that does not
mean that other superior police officers or the court concernet
are debarred from exercising the power under Section 53 if suctt
pe examination, becomes necessary for doing justice in a erimin
case
Even if an accused person is released on bail he is still “a
person arrested on a charge of committing an offence’ as con-
templated by Section 53; moreover such a person while released
con bail is notionally in the custody of the court (throtigh the
¥ surety) and therefore his medical examination canbe carried out
in terms of Section 53.4
(4) Reports of arrests to be sent to District Magistrate—Every
AGE ilicer in charge of a police station is required to report to the
GeF°" District Magistrate the cases of all persons arrested without
warrant. within the limits of his station.*S
Person arrested not to be discharged except on bond or bail—A
44 feson who has been arrested by a police officer shall not be
we discharged except on his own bond or on bail or under the special
order of a magistrate.°®
7. Rights of arrested person
(1) Right to be informed of the grounds for arrest—In every case
of arrest with or without a warrant the person arresting shall e
communicate to the arrested person, without delay, the grounds
SI. See S. 53
52. Anil A, Lohande v. State of Maharashtra, 1981 Cri LJ 125 (Bom HC).
53. Ibid. at p. 130, 131
54. Ibid. at p. 137. Also see Thaniel Victor v. State of T.N.. 1991 Cri LJ 2416 (Mad HC).
55. See S. 58.
56. See S. 59,GLY CA .— oS
TL sch esi Mm feb aba
oh hfe Oe i
BES war to te ter as othe Baw 20 pony wi Mou?
Gees CeSxnsagyes on Hl Proce
for tin arest Thus i a precious ¢ ‘
and has been recognised by the Const
fundamental rights Timely information of the grounds of acrest :
serves the arrested persom in many ways. It ives hin an oppor
Tonty to-remove any mistake, misapprehension or misunder
Standing, i any. in the mind of the arresting authority: i 2ls0
Enables him to apply for bail, or for a writ of abeas corpus. OF
to make other expeditious arrangements for his defence
Right to be informed of right 10 bail—Kvery police officer
airesting without ant any person other than 3 person
accused of a non-bailable offence, is required to inform the >
person arrested that he is entitled 0 be released on bail and
he may arrange for sureties on his behalf.”
Right 10 be produced before a magistrate without delay.—In case
of every arrest, Whether the arrest has Been made with oF without
4 warrant, the person arresting is required, without unnecessary .
delay and subject to the provisions regarding bail, w produce the_g- See CSE)
arrested person before the magistrate or court having jurisdiction B Kee? FE
in the case.
Right _of not bei ing devined for more than 24 hours without
As 0
judicial scrut in case of every arrest, the person making the
uifest is required to. produce the arrested person without un. eat Ss?
necessary delay before the magistrate; and it has been categori- 3 Se |
cally provided that such a delay in no case shall exceed 24 hours
exclusive of the time necessary for the-journey from the place
oof arrest to the magistrate’s court! ffhe tendency of certain
officers authorised to arrest, to note oe Ofanest in such a Sthok os
manner that the accused's production before the magistrate was Al(ah Pe
well within 24 hours of the arrest came to be criticised by the V3
Bombay High Court, The Court ruled that the arrest commences Asst C7
‘ai with the restraint placed on the liberty of the accused and-not Cu
$22 Co Writh the time of arrest recorded by the arresting ier Fe ot o)
in at ‘at 2 > ~* ‘ight has also been incorporated in the Constitution as off of the
fundamental rights. This right has been created with a view (i)
57, See Ss. 50,55, 75 "
58. See Article 22(1) of the Constitution of India.
59. See S. 5012)
60. See Ss. 56 and 76
61. See S. 57, and proviso to S. 76.
62. See Ashak Hussain Allah Detha alias Siddique v. Asstt. Collector of Customs \P), 1990
Cri LJ 2201 (Bom HC) at 2208.
63. See Anticle"22(2) of the Constitution of IndiaTn pp rmercrr itz py
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DD Oy 0A WAG Gen clay horoie dale OuTa
we ck WH
: IO ES eoretcd? Fey meciced
fee (F) Peg BO Mea sidooe 38
ation for the purpose of ©
( ommpalling people 1 give inf
ung
to prevent arrest and
confessions, oF as
1h; (if) to prevent police stations being used as though they
we of the y
sof arrest ;
1 ne aiford
© unsuitable
4 purpose for which they are uns
bani officer independent 0
0. This healthy prov
wore prisone
carly recourse (0 a judicta
Pee police 01 all questions of bail or disch
fae contained in Section 57 enables the magistrates to key
et ove the pole investigation and it necessary that she sm
should ly 1 enforce this reqtiirement and where ¥
= disobeyed, come down heavily upon the police.® The
ene that should be followed in such eases has been spelt « 7
oe Pr eAS OCD, ean Hich Court im Poovun® as discunsed in para 2 above Sect
$) Right to consult a legal practitioner fen the Consiiiu z
1 case Provisions of the Code recognise the right of evey
thout person to consult a legal practitioner of his choice.
rsa begins from the moment of arrest. The consultation w the
Wwyer may be in the presence of the poiice officer but not w "Fr
> the, CSE
te AC cane
© (6) Right of an arrested indigent person to free legal aid and +
informed about it— in I (II) x. State’ of Bihar”.
Supreme Court has held that the State is under a constitutions
ASE mandate (implicit in Amticle 21) to provide free legai aid
_—— S See FE « ‘ddigent accused person. and that this constitutional obligatior
provide legal aid does not anse only when the trial commences t
also when the accused is for the first time produced betcre the
magistrate as also when he is remanded fiom time to time. Howe
| fie ferse this constitutional right of an indigent accused to get tree lez
Mah Pete may prove to be illusory unless he is promptly and duly intc
about it by the Court when he is produced betore it. The S
Ase CalleaTe Court has therefore cast a duty on all magistrates and cou
7a — inform the indigent accused about his right to get free leva .
Ce
o> It has gone a step further in Suk Das y. Union Territory of Arunachal
Pradesh’, wherein it has been categorically laid down that this consi:
uonal nght cannot be denied if the accused failed to apply tor it. [i as
now clear that unless refused, failure to provide tree legal aid ¢
64 See Muscmmad Suleman v. King Emperor, 30 CWN 985, 987, (FB) (per Rankor
65. Khatri Hiv. State of Bhar, (1981) 1 SCC 627: 1981 SCC (Cri) 228, 233 33
L470
66. 1993 Cr LJ 2183 (Ker HC)
67. See §, 303 and Amticle 22/1) of the Constitution of India
68. Supra. 65
69. (1986) 2 SC@401 » 1986 SCC (Cri) 166 : 1986 Cri LJ 1084Ee
on Criminal Procedure
Lectures Weer
3
1, entailing setting lide of the: ,
would vitiate the
eee ned bya medical Practinoner—Ii any arrested
be examine came when he is produced before a magis-
during the period of his detention in custody,
sn of his body will afford evidence which will
ion by him of. any offence or which will
the commission by any other person of any offence
ablish the dy. then the magistrate, on the request of the
Hs con, is required to direct the examination of his body
arrested perver medical practitioner. However the magistrate need
by a eesuch a direction if he considers that the request for
rer mination has been made by the arrested person for the
examina vexation or delay or for defeating the ends of justice.’ ,
scoping to the Supreme Court, the arrested accused person must
Sad by the magistrate about his right to be medically examined
ix ermy of Section 54."
's) The need for having more transparency in the accused-police
© lations has been emphasised by the Supreme Court in Joginder
Singh v. State of U.
formulated ;-—
‘n arrested person being held in custody is entitled if-he so
OA per ing |
uests to have one friend, relative or other person who is
reqi Pe
known to him or likely to take an interest in his welfare,
told, as far as is practicable that he has been arrested and
where he is being detained.
(ii) The police officer shall inform the arrested person when he
is brought to the police station of this right.
(iii) An entry shall be required to be made in the diary as to who
was informed of the arrest. These protections from power
must be held to follow from Articles 21 and 22(1) and
enforced strictly.
The magistrate is oblig«
ed to satisfy himself that these requirements
have been complied with.”
G
wherein the following rules have been
Apart from the above-mentioned rules the Supreme Court in_D.K.
- State of W.B.”* issued the following instructions :-—
See S. $4
Sheela Barse y. State of Maharashtra, (1983) 2 SCC 96 : 1983 SCC (Cri) 353 : 1983
ss Cri LI 642. Also see Mukesh Kumar v. State, 1990 Cri LJ 1923 (Det HC).
2. (1994) 4 SCC 260.
3. (1994) 4 SCC 260, 268,
74. (1997) 1 SCC 416: 1997 SCC (Cn) 92.s
a Arrest
11Y The police personnel canying. out the arrest and handling (
interrogation of the arrestee should bear accurate, visible a7
clear identification and name tags with their designations 1
Particulars of all such police personnel who handle interrogate"
OF the arrestee must be recorded in a register
(2) "That the potice officer carrying out the arest of the arrestee shat)
prepare a memo of aumestat the time of arrest and such memo, ‘shall
be attested by at least one witness, who may either be 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 countersigned PY
the arrestee and shall contain the time and date of arrest.
(3) 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 Organisation in the district and the Police Station of the area
concerned tclegraphically within a period of 8 to 12 hours after
the arrest.
(4) 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.
(5) 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 the
Director, Health Services of the State or Union Territory con-
cemed. The Director, Health Services should prepare such a
panel for all tehsils and districts as well.
(6) Copies of all the documents including the memo of arrest referred
to above should be sent to the Illaqa Magistrate for his record.
(7) The arrestee may be permitted to meet his lawyer during inter-
rogation, though not throughout interrogation.
(8) A Police Control Room should be provided at all districts 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.
Failure to comply with the requirements herein above-mentioned shall
apart from rendering the official concerned liable for departmental action,
also render him liable to be punished for contempt of court and the~
be
Se
—
~
~
~
~
-
Lectures on Criminal Procedure (Leer,
Proceedings for contempt of court may be instituted in any High Count
Of the country having territorial jurisdiction over the matter
The right to. compensation for the victims of unlawful arrest and
detention hasbeen recognised by the Supreme Court in Nilabati Behera
v of Orissa’ (IRI SCO HE.
It ts to be Noted that these instructions are applicable to authorities
like Directorate of Revenue Intelligence, Directorate of Enforcement
CBA. C.LB., C.LS.R, ete, which have the power to effect arrest and
detain persons for interrogation
8. Consequences of non-compliance with the provisions relating to
arrest
(1) A wial will not be void simply because the provisions relating
to arrest have not been fully complied with.
(2) Though the illegality or irregularity in making an arrest would
Rot vitiate the trial of the arrested person, it would be quite
material if such a person is prosecuted on a charge of resistance
10 or escape from lawful custody.
(3) If the arrest is illegal, the person who is being so arrested can
exercise the right of private defence in accordance with. and
Subject to, the provisions contained in Sections 96 to 106 of the
IPC.
(4) If the public servant having authority to make arrests, knowingly
ses that authority in contravention of law and effects an
illegal) arrest, he can be prosecuted for an offence under Section
220 of the IPC. Apart from this special provision, any person
illegally arrests another is punishable under Section 342 of
the IPC for wrongful confinement.
(5) If the arrest is illegal, it is a tort of false imprisonment, and the
arrested person is entitled to claim damages trom the person who
made such an arrest,
It has been categorically ruled by the Supreme Court in Nilabati
Behera that victims of unlawful arrest and detention have right to com-
pensation. ”°
It may be mentioned here that the provisions relating to arrest cannot
ed by alleging that there was no arrest but only informal
detention. Informal detention or restraint of any kind by the police is not
authorised by [aw,
75. (1993) 2 SCC 746, Also see D.K. Basu, supra (65c) and Penpie's Union for Ci
Libernes v. Union of India, 1997 SCC (Cri) 434.
76. dbid.
|