Arrest under CrPC, India. To make sure that the power to arrest is not arbitrary exercised by the police officer Article 22 of the constitution of India and chapter V of criminal procedure code provides direction for safeguards against arbitrary arrest.

Authors Avatar

Table of Cases

  1.  Ajit v. State of Assam, 1976 Cri.L.J.1303
  2. Amrik Singh v. State of Punjab 2000 Cri. L.J 4035
  3. Anil Anantrao Lokhande v. The State of Maharashtra, 1981 Cri.L.J. 125.
  4. Associated Provincial Picture House ltd. v. Wednusbury Corn,  [1947] 2 AllER 680.
  5. Beim v. Goyer, [1966] 4 C.C.C. 9.
  6. Brijesh Kumar v. The State, 1996 Cri.L.J. 1536 (Allahabad).
  7. C.C.Welfare Council of India v Government of Maharashtra 1995 Cri L.J 4223.
  8. Challa Ramkonda Reddy v. State of A.P, AIR 1989 AP 235.
  9. Chandrika Prassad v. Hiralal AIR 1924 Pat 312 .
  10. Collector of Malabar and another v. Erimmal Ebrahim Hajee, AIR 1957 SC 688.
  11. Delhi Judicial Service Association, Tis Hajari Court, Delhi v. State of Gujarat, AIR 1991 SC 2176.
  12. Dilavar Hussain S/o Mohammadbhai Laliwala, etc., Appellants v. State of Gujarat and another, Respondents, AIR 1991 S.C 56
  13. Directorate of Enforcement v. Deepak Mahajan, AIR 1994 SC 1775.
  14. Dr. Ghanshyam Narayan Singh v. State of Bihar, 2001 Cri.L.J. 2811 (Patna).
  15. Erram Santosh Reddy and others, Appellants v. State of A.P., Respondent, AIR 1991 S.C 1672
  16. Fox, Campbell and Hartlay v. United Kingdom, 182 European Court of Human Rights Reporter (1990).
  17. G v. D.P.P., [1989] Crim L.R. 150
  18. Gauri Shankar Jha v. State of Bihar and others, AIR 1972 SC 711.
  19. Gerstein v. Pugh , 420 U.S. 103 (1975).
  20. Guljarsing v. State of Maharashtra, 1976 Cri.L.J. 1563.
  21. Holgate Mohammed v. Duke, [1984] 1 ALL ER 1056.
  22. In the matter of, Madhu Limaye and others, AIR 1969 SC 1014.
  23. Joginder Kumar v. State of Uttar Pradesh, AIR 1994 SC 1349.
  24. Kasturilal v. State of U.P, AIR 1965 SC 1309.
  25. Khedat Mazdoor Chetna Sangh v. State of Madhya Pradesh, 1995 Cri.L.J. 508 (SC).
  26. Kirkpatrick et al. v. Lament [1966] 1 C.C.C. 30.
  27. Koechlin v. Waugh and Hamilton, [1957] O.W.N. 245.
  28. Kultej Singh v. Circle Inspector of Police, 1992 Cri.L.J. 1173 (Karnataka).
  29. Mahendra Hatijivan Luthur v.  State of Gujarat, 1999 Cri L.J 3027
  30. Manoj Kumar Agrawal v. State of Uttar Pradesh, 1995 Cri.L.J. 647 (Allahabad).
  31. Miranada v. Arizona, 384 US 436.
  32. Nataraj v. Bangaru AIR 1965 Mad. 212.
  33. Neeraj Sharma v. State of Uttar Pradesh, 1993 Cri.L.J. 2266
  34. Nila Bati Behara’s case 1993 Cri L.J 2899
  35. Om Prakash Dwivedi v. The State, 1996 Cri.L.J. 603 (Allahabad).
  36. Poovan v. The Sub-Inspector of Police, Aroor and another, 1993 Cri.L.J. 2183 (Kerala)
  37. Pyton v. New York, 445 U.S. 573 (1980).
  38. Rahimal (in Jail) v. State of U.P., 1992  Cri.L.J. 3819 (All).
  39. Rizwan Ahmed Javed Shaikh and others v. Jammal Patel and others, [2001] 1 LRI 1.
  40. Sadaram v. State of Madhya Pradesh, AIR 1974 SC 2294
  41. SAHELI women’s resource center v. Comm. Of Police Delhi, AIR 1990 SC 513.
  42. Shaaban Bin Hussien and others v. Chong Fook Kam  [1969] 3 ALL ER 1626.
  43. State of A.P v. Challa Ramakrishna Reddy , AIR 2000 SC 2083.
  44. State of A.P. v. S. Eshar Singh and others, AIR 1993 SC 1374
  45. State of Madhya Pradesh v. Shyam Sunder Trivedi, 1995 AIR SWC 2793.
  46. State of Maharashtra, Complainant v. Sukhdeo Singh and another, Respondents, AIR 1992  2100
  47. State of Punjab v. Ajaib Singh AIR 1953 SC 10.
  48. State of Punjab v. Kulwant Singh, 1995 Cri.L.J 744 (P&H).
  49. State of Rajasthan v.  Bharu,  1997 CriLJ.  1237
  50. State of Rajasthan v. Purkha Ram, 1997 Cri. LJ 943
  51. State of U.P v. Ram Yadav Sagar, 1986 Cri L.J 836.
  52. State v. Nallini, 1999 (3) SCALE 241.
  53. Tennessee v. Garner, 471 U.S. 1 (1985).
  54. Thanakappan v. UOI, 1997 Cri L.J 1938.
  55. Udaybhan Shuki v. State of Uttar Pradesh, 1999 Cri.L.J. 274 (Allahabad).
  56. United States v. Watson, 46 L.Ed.2d. 598 (1976)
  57. V.S.Krishna v. State of U.P 2000 Cri L.J 4498.
  58. Vasanthi v. Ch. Jaya Prakasha Rao and others, 1996 Cri.L.J. 4243 (Andhra Pradesh).
  59. Vimal Kumar Sharma v. State of Uttar Pradesh, 1995 Cri.L.J. 2335.
  60. Yakoob Farid Bhai v. Union of India, 1996 Cri.L.J. 1615.


TABLE OF STATUTES AND CONVENTIONS

  1. Civil Procedure Code, 1908.
  2. Criminal Procedure Code, 1973.
  3. Canadian Charter of Rights and Liberties.
  4. European Convention of Human Rights.
  5. Narcotic Drugs and Psychotropic Substances, 1985.
  6. Prevention of Terrorism Ordinance, 2001.
  7. Rome Statute of International Criminal Court.
  8.  South African Bill of Rights.
  9. Terrorist and Disruptive Activities Prevention Act, 1985.


INTRODUCTION

There always remains a need to have a balance between the interests of the society and that liberty of the individual. How to achieve this balance is the basic dilemma that is faced while there is implementation of the criminal law. This is required to be followed at every stage of the implementation of the process. These safeguards are provided not only required to be under the Constitution but also under the various procedural laws. There will be an attempt in this paper to find whether there is such protection provided under various laws.

One of the processes that imposes a major threat to the liberty of the individual is that of arrest. This is very much required in various cases for the protection of the larger interests of the society; at the same time, the same law of arrest can be misused by the police for the numerous crimes that may be committed behind the bars of the police station, one of them being the police atrocities. This may be a gateway crime.

As it will be explained in detail, whether the decision as to arrest has to be taken by the Police Officer or the Judicial Magistrate depends upon whether the offence is cognisable or non-cognisable as classified under the first schedule of Cr.P.C. There arise two problems due to this:

  • Is the Police Officer expected to know the entire first schedule so as to postpone the discretion in a few cases?
  • Many social crimes have punishment less then three years, due to this provision there is lack of initiative from the side of the police officials.

Personal liberty is fundamental guarantee; social security is fundamental social need. These two needs to be balanced. How can the probable misuse by the police force be restricted? Are the existing provisions sufficient? Scope, object, rights of the arrestee, consequences of illegal arrest and judicial activism, these would be analysed in this project.

Arrest of a person leads to curtailment of his or her liberty. But sometimes an arrest of a person may be necessary in the interest of society at large. So one needs to strike a balance between individual’s liberty and societal interest. Arrest is a very serious issue as it has the effect of curtailing an individual’s liberty. Therefore the power to arrest has to be exercised with care and circumspection. To make sure that the power to arrest is not arbitrary exercised by the police officer Article 22 of the constitution of India and chapter V of criminal procedure code provides direction for safeguards against arbitrary arrest. But the question to be answered here is whether these provisions fulfil the purpose they are enacted for?

The Supreme Court has been very vigilant with regard the issue of arrest because if in a democracy a person is not secured against arbitrary curtailment of one’s liberty then the very purpose of democracy is shattered. The Supreme Court has recognized certain right, which are fundamental to the person arrested. For example the right to be informed of the ground for arrest, right to be informed of right to bail, right to be produced before a magistrate without delay, right not to be detained for more than 24 hours without judicial scrutiny, right to consult a legal practitioner, right of an arrested indigent person to free legal aid and to be informed about it.

It leads to an irresistible conclusion that the power to arrest a person accused of a cognizable offence is not unfettered and registration of a cognizable offence ipso facto does not necessitate arrest. The question of arrest would not arise until the police officer has reasons to suspect commission of an offence. Normally the Court should not interfere with the process of investigation or the power of the police officer to arrest a person accused of a cognizable offence offences except in rare of the rarest cases and on proof of the fact that the police has not acted reasonably and honestly the court can inquire into the matter.

Despite all these safeguards there are innumerable cases of police atrocities. Torture is regarded by the police officer as normal practice to check information regarding crime to extract confession. Police officer who is supposed to be protectors of the civil liberties of citizens themselves violate precious rights of citizens. It is committed under the shield of uniform, and the authority in the four walls of the police station at lock up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern.

There has been increasing domain of the police in India, from Social, Political, Games, Religion and the same. The justification that is always forwarded is that of the social justice, but these delicate issues can be determined by the bodies like that of tribunal, Courts and the same. The increasing policing are never questioned until the matters reach the Court. All this reflects on one need and that is of increasing regulations over the use of the power by the police. 

Chaperization of the project is as follows:

Section One: The Concept and Process of arrest

An attempt has been made to understand the legislative framework as to the law of arrest. This includes the basic procedure as envisaged in Cr.P.C. as well as other local and special laws. An attempt has been made to understand the similar position in other Jurisdictions.

Section Two: Judicial Understanding and the expanding reforms

Statutes apart, there have been guidelines that are issued by the Judiciary, these are also looked into.

Section Three: Field Research

Law and decisions apart, this section attempts to look into the practice.

Section Four: Need and Scope of Reforms

In spite of all the laws, there is always a need to improvise, this section aims at the same.


Research Methodology

Aims and Objectives: This project aims to cover the law relating to arrest in India, in comparison with other jurisdictions along with International Conventions. This would facilitate in understanding not only the law that is applicable in India, but also facilitates to incorporate the enhanced manner of dealing with the issue of rights of the arrested persons, along with resolving the problems that are faced by the authorities in implementation.

An attempt would be made to look into the decisions that are rendered by the Courts in order to understand the implication of the law, the guidelines if any, and the role that the Judiciary plays in improving the mechanism of the law relating to arrest. The law in the books, Courts is one, and that what is in practice is another. To this end, there would be an attempt to look into the practical aspect of the implementation of the law.

There is always a scope for reforms in the law, therefore at the end of the paper, an attempt would be made for the need and scope of the reforms as to the law of arrest, so that it is beneficial not only for the persons so arrested, but also for the authorities which have the duty to protect the society.

Scope and Limitation: The scope of this project is to cover various codes like that of Criminal Procedure Code, International conventions and other local and special laws. Along with this an attempt would be made as to cover the decisional law in detail and comprehensive manner. The scope of this project is extended to look into the guidelines suggested by the judiciary and in what manner they are being implemented. Field research has been undertaken so as to understand the reason for the discrepancy between law in book and practice.

It has not been possible for the researchers to cover all the laws that have the provision regarding arrest and a sample of the laws have been taken to understand the concept and the practice. The same applies for the decisions wherein only a few cases have been dealt which have a major impact on the law relating to arrest. Due to practical inconveniences only three officials in the field have been interviewed. At the same time it would be mentioned that the successful effort was made to ensure that such officials were from different positions of responsibilities.

Sources of Information: For the purposes of this project both primary and secondary sources of information have been used. The primary sources were the fieldwork and the experiential learning of two of the researchers. The secondary sources that were being utilized were the books, commentaries, reporters, and journals and as well internet based resources.

Mode of Citation- A uniform mode of citation has been used adopted all throughout the project.

Mode of fieldwork - For the purposes of fieldwork, relevant persons in authority were identified and appointment was sought with them. The researchers faced a great difficulty in this regard, as the period of research coincided with the local municipal elections, and the busy schedule of the senior police officers, this became a great hindrance in the researchers effort to meet Mr. V.V Bhaskar & Mr. Gopal Hosur, and Mr. Krishanmurthy all senior policed officers in Karnataka cadre.

For the few people with whom an appointment could be sought, a questionnaire was prepared by us, as an enabling guideline for the researches so as to be sure that relevant information is gathered.  

During the interview an attempt was made to ascertain the knowledge of these officials relating to the procedure, mandatory requirements, judicial guidelines. At the same time the researchers attempted to understand the practical problems that are face by these official, while executing arrest in the interest of the society.

These official were kind enough to provide us the relevant data, which the researchers sought from them.

Research Question  

  1. What is arrest? And how is it different from custody?
  2. What are the various provisions as to the law of arrest, in procedural, local and special laws?
  3. What are the rights of the person so arrested?
  4. What are the judicial guidelines as to arrest and the need for them?
  5. Why have the various safeguards not been able to prevent police atrocities?
  6. Is there a need for reform in Law of arrest?

        


Section One: The Concept and process of Arrest

        The first question that came to the mind is that why there should be arrest at all? The reasons for it can be enumerated as follows:

1) Securing attendance of accused at the trial: This is when it becomes sure that such attendance cannot be secured by summons or notice.

2) To make investigation effective and fruitful: Arrest facilitates interrogation and at times leads to confession.

3) As a preventive or precautionary measure: In cases where there is imminent danger as to commission of a cognizable offence, or in case of habitual offender.

4) For obtaining correct name or address: This is when the person so arrested refuses to give the correct name and address when asked by the police.

5) For removing obstruction to the police: In his/her duty as the police officer.

6) For taking a person escaped from the police custody: As regards the person who has escaped from lawful custody.

7) For protecting the accused person himself or herself.

It becomes abundantly clear that the arrest should be affected only in cases where there it is absolutely necessary and to have prompt arrest in cases of danger to the society. The reason being that the fundamental right to personal liberty is violated by the due procedure established by law. Another question that comes to the mind is that of use of force while accomplishing the process of arrest, should there be use of force at all? If yes, then how much use of force is justified? It has been an accepted principle that there has to be use of force in cases where there is no voluntary submission and the arrest is necessary. Justification for such use of force is that there is a duty on the police officer towards the society too.

1.1 What is arrest?

The word arrest is not defined either in the procedural acts or in the various substantive acts, though section 46 0f the Cr.P.C. lays down the mode of arrest to be effected.

 Arrest can be defined as “The act of taking the person into custody under the authority of law or by compulsion of another kind and includes that period from the moment he is placed under the restraint up to the time he is brought before an authority competent to order his continuous custody or release him”.

In the dictionary of English law, the meaning of arrest is given as following – “The restrain of a person’s liberty in order to compel obedience to the order of a court of Justice, to ensure that a person charged or suspected of a crime may be forthcoming to answer it. To arrest a person is to restrain his liberty through some lawful authority.

Arrest is to deprive a person of his liberty by legal authority. Taking, under a real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge.

From various definitions incorporated above, it is clear that the word ‘arrest’ when used in its ordinary sense means the apprehension or restraining or the deprivation of one’s liberty.

        There are three requisites of arrest that can be enumerated as follows:

  1. Reasonable suspicion of guilt.
  2. Nature and gravity of offences.
  3. Existence of grounds justifying arrest.

According to the Code, there are three manners in which the person can be arrested:

  1. Submission to the custody by the word or action;
  2. Touching the body of the person to be arrested;
  3. Confining the body of arrested person.

In one of the cases, House of Lords held that:   

 The question involved was the interpretation of S. 2(4) and 2(6) of the Criminal Law Act, 1967. The subsection 6 confers a right of entry on premises by a constable for the purpose of exercising the power of arrest conferred on him by sub section 4 that reads as follows:

‘Where a constable, with a reasonable cause, suspects that an arrestable offence has been committed, he may arrest without warrant anyone whom he, with reasonable cause, suspects to be guilty of the offence.’

Arrest is a continuing act; it starts with the arrestor taking a person into the custody (by action or words restraining him from moving anywhere beyond the arrestor’s control), and it continues until the person so restrained is either released from custody or having been bought before a magistrate, is remanded in custody or having been, remanded in custody by the magistrates judicial act.

Strictly speaking, the arrestor may change form time to time during a continuous period of custody since the arrestor is a person who at any particular time is preventing the arrested person from moving himself from the custody.

Secondly, it should be noted that the mere act of taking a person into custody does not constitute an arrest unless that person knows, either at time when he first taken into custody or as soon thereafter as it is reasonably practicable to inform him, on what charges or on suspicion of what offence he is being arrested.

S. 2(4) of the act makes it a condition precedent to a constable having any power lawfully to arrest a person without warrant that he should have a reasonable cause to suspect that person to be guilty of the arrestable offence in respect of which the arrest is been made.

The wording of the subsection under which he acted is may arrest without warrant, this leaves with him an executive discretion whether to arrest her or not.

The exercise of such discretion must be a real exercise of the discretion.  The first of the principles is that the discretion must be exercised in good faith. The other side of the coin is whether the investigation, although diligently pursued, fails to produce prima facie proof which must be inform of an evidence that would be admissible in a court of law. When the police have reached a conclusion that prima facie proof of the arrested person’s guilt is unlikely to be discovered by further inquiries of him or other potential witness, it is their duty to release him from custody unconditionally.

 There is inevitably the potentiality of the conflict between public interest in preserving the liberty of the individual and the public interest in the detection of crime and bringing to justice those who committed it.

Any procedure as to arrest should fulfil the following principles, as formal legality is not sufficient to justify intrusions into the human liberty:

  1. Legality: Law should fix the procedures; the limitations and restrictions applicable should exclude arbitrary executive action. Restriction on individual liberty should be under the due procedure of law.
  2. Protection of persons caught in the criminal process: There should be a fundamental respect for human dignity; there should be protection against the possibility of torture or degrading treatment under the custody.
  3. Just system must ensure quality of criminal process. There should be a balance between the societal interests and individual liberty.

Suspicion arises at or near the starting point of the investigation of which obtaining the prima facie proof is the end. When such proof has been obtained, the police case is complete; it s ready for trail and passes on to the next stage. It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if the arrest before it was forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion. In exercise many factors have to be considered besides the strength of the case. The possibility of escape, the prevention of further crime and obstruction of police enquiry are examples of those factors with which all judges who have had to grant or refuse bail are familiar.

Suspicion in its ordinary meaning is a state of conjecture or sunrise where proof is lacking. “I suspect but I cannot prove”. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trail and passes on to its next stage.

1.2 Custody v. Arrest

Arrest is one of the modes under which a person can be brought to the custody of the police, there are various other means and reasons because of which a person may be brought to the custody of the police. This includes the reasons as to interrogation and the same.

1.3 The procedure as to arrest

The next question that comes to mind as to who has the take the decision as to arrest the person. There is a fundamental dilemma that has to be balanced while taking the decision as to arrest; this question is about the restraint on the individual liberty due to the arrest, and the danger to the society if the liberty of such individual is not curtailed.

Another question that may arise as to why so much importance has to be given to the protection of human rights at the pre-trail procedure? The main reason may be that when a wrong is done to the such arrested person at the beginning of the process, cannot be corrected at any stage whatsoever as this is the basis of the whole trial.                         

The Magistrate or the police officer either takes the decision of arrest; for the Magistrate the decision is based on the information that is provided to him. Such information should be reasonable in nature giving a clear indication as to the commission of the offence. Such reasonableness depends from the circumstances to circumstances.  After this the Magistrate issues a “warrant of arrest” that is addressed to the police officer or some other person who is specially named and commanding him to arrest the body of the person named in the warrant. A warrant of arrest is a must in cases where an arrest has to be made of a person who has committed a non-cognisable offence. The Magistrate issues warrant after taking cognisance of the offence. Thus, a police officer cannot arrest a person for any non-cognisable offence unless the warrant has been issued.

Cognisable: investigation or arrest by police officer without any order from the Judicial Magistrate.

Offences

        

                         Non-cognisable: No investigation or arrest without any order from

                        Judicial Magistrate.

        There remains a fundamental question to this categorisation according to which the discretion has to be used either by the police officer or the Magistrate; it is that does the police officer knows the full first schedule as to decide whether the offence is cognisable or non-cognisable in nature.

        This does not mean that there cannot be arrest without the warrant; this can be either before the commission of the crime or after the commission. This decision has to be based on certain premises. In such cases the investigating agency is given the power to arrest the person, though there is judicial scrutiny of the arrest so made. These may be specified as follows:

  • Any arrested person has to be brought before the Magistrate within 24 hours of the arrest.
  • Reports of the arrest have to be sent to the Magistrate.
  • If any Magistrate receives any complaint about such an arrest, he should make an order as to call the police officer and ask as to why such an arrested person was not presented to the Court?

Police officer can also arrest any person who has committed any offence that is cognisable in nature.

An understanding of Section 47, Cr.P.C. would indicate that if police officer acting on a warrant of arrest can if required search a place or premises for the purpose of carrying out that arrest.

After Arrest Procedures

  1. Search of arrested person – whenever a person who is arrested cannot be legally admitted bail, or can not furnish bail, a police officer may search the person, and keep in safe custody all articles found in his possession
  2. Seizure of offensive weapons – If during search any offensive weapons are recovered, it shall be so seized and shall be delivered to the authority before whom the arrested person is to be produced.
  3. Medical examination – If the nature of offence requires medical examination then a police officer not below the rank of sub-inspector can insist so.
Join now!

1.4 Police atrocities

The word torture has not been defined in the constitution or in any other penal law. Common sensically torture of a human being by another is essentially an instrument to impose the will of the song over the weak by suffering.

Art. 9(5) of the International Convention on Civil and Political Rights, 1966 provides that “any person who has been the victim of unlawful arrest or detention shall have enforceable right to compensation”

Article 5 of the universal declaration of human rights in1948 stipulates, “No one shall be subjected to torture or to cruel, inhuman, or ...

This is a preview of the whole essay