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When can a person be arrested? Rights of an arrested person

July 19, 2021

By Y. Srinivasa Rao, Prl. Asst. Sessions Judge, Tirupati.

Introduction:- No person shall be deprived of his life or personal liberty except according to procedure established by law.’See. Article 21 of Indian Constitution. Indian courts interpreted this Article in catena of decisions. These judicial pronouncements provide valuable instructions to judicial officers on how to protect the rights of accused. In order to assure a fair trial, judicial officers are expected to follow every procedural safeguard and protect every assurance provided by the law to all parties. The law is settled that Magistrate should not authorize detention of an accused to any custody mechanically in routine.

Who can arrest?:- Arrest can be made by a police officer, Magistrate or any person. Under Section 44 of Cr.P.C, any magistrate may arrest a person without a warrant. Under Section 41 of the Code, a police officer can arrest a person without warrant in cognizable offence. With warrant, a police officer can arrest a person in non-cognizable offence. Section 46 of the Code of Criminal Procedure,1973 prescribes the mode in which arrest is to be made.

Arrest and Bail :- In Sanjay chnadra vs. CBI – (2012) 1 SCC 40, what factors to be considered by Magistrate while granting or refusing to grant Bail are clearly explained. In Siddhram S. Mhetre vs. State of Maharashtra (2011) 1 SCC 694, the scope of Anticipatory Bail is explained. In Gurbaksh Singh vs. State of Punjab AIR 1980 SC 1632, the scope of Anticipatory Bail is considered. In Sajal Kumar Mitra vs. State of Maharashtra 2011 CrLJ 2744, it is discussed as to granting of Cash Bail initially to facilitate the accused to arrange for Surety in the mean time. In K. K. Girdhar vs. M S Kathuria 1989 CrLJ 1094, it was observed that the Magistrate to decide Bail Application of the Accused along with Remand Application of the Police. In Lal Kamlendra Pratap Singh vs. State of U.P, (2009) 4 SCC 437, the factors such as interim Bail by Magistrate till the final decision in Bail Application; arrest is not a must in all cases of cognizable offences; and police officer must act according to the principles laid down in JoginderKumar’scaseareexplained.InJoginderKumarvs.StateofU.P (1994) 4 SCC 260 (arrest is not a must in all cases of cognizable offences; police officer must act according to the principles laid down in this case); Arnesh Kumar vs. State of Bihar [JT 2014 (7) SC 527. Joginder Kumar (AIR 1994 SC 1349) and Arnesh Kumar cases (JT 2014 (7) SC 527) are most relevant to follow for the best administration of criminal justice system. Under the Code of Criminal Procedure,1973, Sections 167(2), 169, 436, 437, 438, 439, 389(1), 389(3), 436A, 437(6), 437A of Cr.P.C are dealt with bails.

Rights of an arrested person:- Grounds of his arrest to be informed to accused:- Section 50 provides that any person arrested without warrant shall immediately be informed of the grounds of his arrest. The duty of the police when they arrest without warrant is to be quick to see the possibility of crime, but they ought to be anxious to avoid mistaking the innocent for the guilty. The burden is on the police officer to satisfy the court before which the arrest is challenged that he had reasonable grounds of suspicion. In Pranab Chatterjee v. State of Biha, (1970) 3 SCC 926, the Hon’ble Supreme Court held that Section 50 of Cr.P.C is mandatory. If particulars of offence are not communicated to an arrested person, his arrest and detention are illegal. The grounds can be communicated orally or even impliedly by conduct.

Production of accused before a Judicial Magistrate within 24 hours of arrest:-
Section 57 of Cr.P.C. and Article 22(2) of Constitution provide that a person arrested must be produced before a Judicial Magistrate within 24 hours of arrest. In State of Punjab vs. Ajaib Singh, AIR 1953 SC 10 , the Hon’ble Supreme Court held that arrest without warrant call for greater protection and production within 24 hours ensures the immediate application of judicial mind to the legality of the arrest.
Arrest of accused to be informed to his friend or relative:- The decisions of the Supreme Court in Joginder Kumar v. State of Uttar Pradesh, 1994 SCC (4) 260 and D.K. Basu v. State of West Bengal, 1997 (1) SCC 416, were enacted in Section 50-A making it obligatory on the part of the police officer to inform the friend or relative of the arrested person about his arrest and also to make an entry in the register maintained by the police. This was done to ensure transparency and accountability in arrest. Sec.160 of Cr.P.C provides that investigation by any police officer of any male below 15 years or any woman can be made only at the place of their residence. Section 46 (4) provides that no woman shall be arrested after sunset and before sunrise, save in exceptional circumstances and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.
Section 41A Cr.PC aimed to avoid unnecessary arrest :- In Arnesh Kumar vs. State of Bihar & Anr, Crl. A. No. 1277 of 2014 (@Special Leave Petition (CRL.) No.9127 of 2013), it was observed that Before a Magistrate authorises detention under Section 167, Cr.P.C , he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused.
Procedural safe guards:-

  1. Section 163 of Cr.P.C prohibits investigating officer from obtaining statements from witnesses through threatening conduct.
  2. Under Section 50A (1) of Cr.P.C, immediately on arrest, the arresting police officer has an obligation to give information about the arrest and the place of detention to any person nominated by the arrested person.
  3. As was observed in D.K.Basu vs. State of West Bengal, AIR 1997 SC 610 preparation of ‘Arrest Memo’ indicating the date , place and time of arrest; signed by two independent witnesses and countersigned by the arrest officer is mandatory. Also see: Section 41 A,B,C,D of Cr.P.C.
  4. Conducting medical examination of the accused at the time of arrest is essential. See Section 54 of Cr.P.C.
  5. Torture to accused is absolutely forbidden inasmuch as torture is a violation of fundamental rights. Section 330 IPC criminalizes torture during interrogation and investigation for the purposes of extracting a confession of accused.
  6. The danger of illegal detention and torture of accused can be minimized by strict compliance of Section 57 of Cr.P.C.
  7. Article 32 and 226 of the Indian Constitution provide for compensation from the State for contravention of fundamental rights. See Nilabati Behera vs. State of Orissa, AIR 1993 SCC page 13.
  8. The Code of Criminal Procedure,1973 codifies the duties of Magistrate. Magistrate shall follow the guidelines given in Arnesh Kumar’s case.
  9. Under Section 172, a police officer shall maintain a day-to-day case diary. Police records must be kept with scrupulous completeness, and investigations should be carried out with promptness, urgency and efficiency to achieve the object of discovery of truth in every case. Judicial Officer’s signature on each page of the case diary operates as a safeguard against manipulation and interpolation.
  10. Section 173 of Cr.P.C which imposes further record-keeping duty on the police officer. See Bhagwant Singh vs. Commissioner of police, Delhi, (1983) Criminal Law Journal 1081 = (1985) SC 1285.

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