Law on Arrest and Detention: Know your rights! Arrest must not be used as punitive tool says Supreme Court

05, Aug 2022 | CJP Team

Taking note of the prevailing situation in India where jails are flooded with undertrial prisoners, the Supreme Court recently issued guidelines to curb unnecessary arrest and remand in the case of Satendar Kumar Antil vs. Central Bureau of Investigation. The Court observed how majority of the prison inmates are undertrial prisoners and how majority of them may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less. What’s concerning is that most of the undertrial prisoners include not only poor and illiterate but also include women.

“It certainly exhibits the mindset, a vestige of colonial India, on the part of the Investigating Agency, notwithstanding the fact arrest is a draconian measure resulting in curtailment of liberty, and thus to be used sparingly. In a democracy, there can never be an impression that it is a police State as both are conceptually opposite to each other.”

In the case of Mohammed Zubair vs. State of NCT of Delhi & Ors [Writ Petition (Criminal) No. 279 of 2022], the Supreme Court stressed upon how “the machinery of criminal justice has been relentlessly employed against the petitioner” due to which “he is trapped in a vicious cycle of the criminal process where the process has itself become the punishment.”

According to the Court, the existence of the power of arrest must be distinguished from the exercise of the power of arrest. It observed that the exercise of the power of arrest must be pursued sparingly. The Court held that police officers are vested with the power to arrest individuals at various stages of the criminal justice process, including during the course of investigation but this power is not unbridled. The Court stated that the Police officers have a duty to apply their mind to the case before them and ensure that the condition(s) in Section 41 are met before they conduct an arrest. 

“In terms of Section 41(1)(b)(ii) of the CrPC, the police officer in question must be satisfied that such arrest is necessary to prevent the person sought to be arrested from committing any further offence, for proper investigation of the offence, to prevent the arrestee from tampering with or destroying evidence, to prevent them from influencing or intimidating potential witnesses, or when it is not possible to ensure their presence in court without arresting them.”

Addressing the issue recently at a legal meet, Chief Justice of the Supreme Court NV Ramana remarked, “In our criminal justice system, the process is the punishment. From hasty indiscriminate arrests, to difficulty in obtaining bail, the process leading to the prolonged incarceration of undertrials needs urgent attention. In India we have 6.1 lakh prisoners in 1,378 prisons. 80% of them are undertrials. They are indeed one of the most vulnerable sections of our society. Prisons are black boxes. Prisoners are often unseen, unheard citizens. Prisons have different impacts on different categories of prisoners, particularly those belonging to marginalised communities. A grave issue affecting our criminal justice system is the high population of undertrials in our prisons. Out of 6.10 lakhs prisoners in India, around 80% are under trial prisoners.” 

With respect to the political opposition translating into hostility and the quality of the legislative performance, he reportedly said, “Political opposition should not translate into hostility, which we have been sadly witnessing these days. These are not signs of a healthy democracy. There used to be mutual respect between the government and opposition. Unfortunately, space for opposition is diminishing. Sadly, the country is witnessing a decline in the quality of legislative performance as laws are being passed without detailed deliberations and scrutiny.”

Arrest and Detention

As per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge.” In Indian law, Criminal Procedural Code 1973 (hereinafter referred to as CrPC), chapter V (Section 41 to 60) talks about Arrest of a person but it does not define arrest anywhere.

The term “Detention” can be defined as, “When the Police Officer or any other Authority or any individual hold or detain an individual or group of persons under the suspicion of an illegal act but does not charge them with the crime is known as the Detention.” 

Rights with respect to arrest and detention under the Criminal Procedure Code, 1973 (CrPC)

The Constitution of India and the Code of Criminal Procedure, 1973 provides certain rights to the arrested person. In law there is known as “presumption of innocence till he has proven guilty” which means that it is required that an arrested person treated with humanity, dignity and respectfully until he is proven guilty by the court of law.

  • Right to be Informed

Section 50(1) of CRPC it has been mentioned that the police officer who is arresting without warrant shall inform to the person arrested, the grounds of his offence for which he has been arrested. And if the offence which he has committed is bailable in nature then it is also the duty of the police officer to inform to the arrested person that he is entitle to be released on bail and he may arrange for sureties on his behalf. Article 22(2) of the Indian constitution also states that the arrested person must be informed the grounds of his arrest. It also gives right to the arrested person to inform to his family members, any relative, or his friend about his arrest. In Joginder Kumar vs State of U.P. 1994 SCC (4) 260 the Supreme Court held that a person arrested has the right to inform any of his friend or relative or family member of his choice, about his detainment. The police officer shall also inform the arrested person about his rights when he is being brought to the police station.

  • Right to be released on Bail

Section 50(2) of the CRPC states that if the accused has committed a bailable offence then the police officer is entitled to inform the arrested person about his right to be released on bail. Article 21 of the Constitution ensures the right to liberty of every person until and unless he proven guilty. Moreover,  it is his right to know that even in a non-bailable offences he may be granted bail, if a bail is granted by the court after taking into consideration the nature or heinousness of the offence. Section 167 also provide right to the accused to be released on bail if investigation relating to his offence has not been completed within sixty days or ninety days from the date of his detention. This is also known default bail. In Uday Mohanlal Acharya Vs State of Maharashtra 2001(5) SCC 453 the court granted default bail to the accused as the police officers fail to aquire evidence against him within the time limit of investigation as mentioned in the Code of Criminal Procedure, Section 167.

  • Right to be taken before Magistrate without Delay

According to Section 56 of CRPC, the police officer who is making such an arrest whether with or without warrant is bound to produce the accused within 24 hours of his detention before magistrate excluding the time taken for travelling from the place of arrest to the Magistrates court.

  • Right to consult a legal practitioner

Section 41D of CRPC gives the right to accused to consult an advocate of his own choice and he is also entitled to meet advocate of his own choice during interrogation, though not throughout  the interrogation. Article 22(2) also guarantees the right of the arrested person to consult a lawyer of his own choice. Section 303 of CrPC states that when a person is alleged to have committed an offence before the criminal court or against whom proceedings have been initiated, has a right to be defended by a legal practitioner of his choice.

  • Right to Free Legal Aid: Article 39A of the Indian Constitution

Free legal aid means providing legal service to the economically backward people so that they can conduct case or any legal proceedings in a court of law or before any judicial tribunal and judicial authority. According to Article 39A, of the Indian constitution provides that it is the duty of the state to provide justice on easily accessible terms so that every citizen can easily approach the courts to enforce their rights. In the case of Hussainara Khatoon vs State of Bihar 1979 AIR 1369, a PIL was filed  in the name of Hussainara Khatoon, a prisoner in a jail in the Supreme Court. The Court held that if an accused is not able to afford the legal services he has the right to free legal aid at the cost of the state.

  • Right to be examined by a Medical Practitioner

According to Section 54(1) of CRPC accused have the right to have a full body medical examination. This examination can help the accused to disprove the offence which he is said to have been committed or can gather evidence that the offence has been committed by some other person. But it can happen only when magistrate give the permission to do so.

Procedure to be followed by police during Arrest

(1). The Police officer making the arrest shall actually touch or confine the body of the person to be arrested, unless there be a submission to the Police custody (S. 46(1) Cr.P.C.) 

(2). If any person resists the arrest or attempts to evade the arrest, the Police officer arresting him may use all means necessary  to effect the arrest. The Police officer is not given right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life (S. 46 (2)(3) Cr.P.C.)

  1. Any Police officer to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein. (S. 47 (3) Cr.P.C.)
  2. A Police officer may, for the purpose of arresting without warrant any person whom he is authorized to arrest, pursue such person into any place in India (S. 48 Cr.P.C.)
  3. The Police officer making an arrest shall follow the following: 

(a). He may search the arrested person.

  1. He may place in safe custody all articles other than necessary wearing apparel found upon the arrested person.
  2. If any article is seized from the arrested person, a receipt showing the articles taken in possession by the Police officer shall be given to the arrested person (S. 51 Cr.P.C.)
  1. Whenever it is necessary to cause a female to be searched, the search shall be made by the Woman  Police or Women Home Guards with strict regard to decency. (S. 51 (2) Cr.P.C.)
  2. The Police officer making an investigation can depute any officer subordinate to him to arrest without a warrant with an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made and the subordinate officer so required shall, before making the arrest, notify the person to be arrested the substance of the order. If required, he shall show the order to the arrestee. (P. 55 Cr.P.C.). The investigating officer shall record all steps in deputing the subordinate officer to make the arrest in the following files / registers:-

(a). General Diary

 (b). Case diary

  1. Pocket note book of the subordinate
  2. A copy of the written order to arrest to be kept in the case diary.
  1. Any person arrested by any Police officer shall not be detained in the custody of the Police more  than twenty four hours (S. 57 Cr.P.C.)
  2. Officers in charge of the Police Stations shall report the Judicial Magistrate the cases of all persons arrested in Form No. I F.3 “Arrest Court / Surrender Memo” u/s 58 Cr.P.C. Besides, a memo  of arrest, as laid down under clause__(Manual II) shall also be sent.
  3. No person who has been arrested by a Police officer shall be discharged except on his own bond  or on bail, if the offences committed by the arrested are bailable. In non-bailable cases, if the investigation cannot be completed in twenty four hours, the Police officer making the investigation, if he is not below the rank of Sub-Inspector of Police, shall forthwith transmit to the nearest Judicial           Magistrate a copy of the entries in the diary along with a report under section 167 Cr.P.C. and shall at the same time forward the accused to the Magistrate who may, whether he has or has no jurisdiction to try the case, authorize the detention of the accused in such custody as he thinks fir for a term not exceeding fifteen days. If he has no jurisdiction to try the case or commit it for trial and if considers further detention unnecessary, he may order the accused to be forwarded to a magistrate having such  jurisdiction.

The magistrate may authorise detention of the accused, otherwise than in custody of the Police, beyond the period of fifteen days, if he is satisfied that adequate grounds exists for doing so, but no magistrate shall authorize the detention of the accused person in custody under section 167 Cr.P.C. for a total period exceeding 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence and on the expiry of the said period, the accused person shall be released on bail if he is prepared to and also furnish bail. Whenever an application for the remand of an accused person is made, the investigation officer should invariably produce the accused  before the Magistrate. If during the period of remand to Police custody, the Police complete the investigation and find that there is no ground for sending up the accused to a magistrate for trial or inquiry, it is not open to the Police to release him on bail under section 169 of the Code of Criminal Procedure. The proper course for them is to send the accused back to the magistrate concerned or request him to release the accused on bail under section 437 of the Code of Criminal Procedure.

If the investigation is too long or complicated to be finalized within the period prescribed, a provisional charge sheet or preliminary charge sheet based on such evidence, as has been collected should be sent to the magistrate having jurisdiction to try the case or to inquire into it and continue his investigation to collect further evidence in support of the charge. All fresh evidences collected should be produced before the conclusion of trial of that case.

An accused who has been produced before a magistrate for the purpose of making a confession u/s 164 Cr.P.C. and has declined to make it or has made a statement which from the point of view of the             Police is unsatisfactory, is liable to be remanded to jail and the investigation officer should not, except in the presence of the magistrate, see the accused again or have any communication with him. 

An under-trial prisoner should not be removed from one place of confinement to another for the purpose of identification. The attendance of any person believed to be cognizant of the prisoner’s identity should be secured. Sundays and other holidays are not excluded from the time limit allowed under section 61 of the Code of Criminal Procedure for production of the accused before a magistrate for remand. The officer incharge of the Police Station or the Police official making the investigation, if he is not below the rank of a Sub-Inspector may, where a judicial magistrate is not available, transmit the accused and the remand papers under section 167 (2-A), to the nearest Executive Magistrate or whom the powers of a Judicial Magistrate have been conferred who may authorize as he may think fit for a term not exceeding seven days or otherwise prescribed under the above provisions. 

The investigating officer shall remember that the investigation of certain cases wherein the accused persons were already arrested shall be completed as expeditiously as possible, because of the following reasons:

  1. If in any case triable by a Magistrate as a summon case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order for “STOP PROCEEDINGS”, under section 167 (5) Cr.P.C.
  2. After the expiry of the period of limitation, no court shall take cognizance of an offence of the category specified below (section 468 Cr.P.C.):- (i). Six months – If the offence is punishable with fine only. (ii). One year – If the offence is punishable with imprisonment for a term not exceeding one year. (iii). Three year – If the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

Judicial Precedents

The landmark case of D.K. Basu Versus State of West Bengal (1997 (1) SCC 416), the court laid down certain basic “requirements” to be followed in all cases of arrest or detention till legal provisions are made in that behalf as a measure to prevent custodial violence. The guidelines are as follows:

  1. Identification of arresting officer must be clearly visible and all details must be recorded in register,
  2. a memorandum must be prepared containing all the details which must be witnessed by near or dear of the detainee
  3. police must ensure that accused should avail right to be informed
  4. police need to inform him about legal aid organization within 8-12 hours of arrest
  5. the person arrested must be informed his right as an accused
  6. an entry must be made in the prescribed diary
  7. if the arrestee is injured he must be legally examined
  8. the medical examination should be done within 48 hours
  9. all details must be sent to magistrate in writing
  10. the arrestee must be allowed to meet attorney
  11. a room shall be provided to officers for communication.

In case of Neelabati Bahera v. State of Orissa AIR 1993 SC 1960, the Supreme Court reiterated that prisoners and detainees should not be deprived of their Fundamental Rights under Article 21 and only the restriction permitted by law could be imposed on the enjoyment of their Fundamental Rights. The Apex Court further laid down the following guidelines and said that arrest and detention will be subject to the guidelines. The violation of these guidelines would attract not only the departmental action but also the contempt of court proceedings in a High Court having the jurisdiction over the matter. The guidelines are as follows:

  1. The police officer who arrests and handles the interrogation of the arrestee must wear accurate, visible and clear identification and name tags with their designations. The details of all such police personnel who handle interrogation must be recorded in a register.
  2. The police officer carrying out the arrest must prepare a memo of arrest at the time of arrest and it shall be attested by at least one witness who may be either 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 by the arrested person and shall contain the time and date of arrest.
  3. A person who has been arrested and is being held in custody in a police station or interrogation centre or other lock-up shall be entitled to have one friend or relative or other person known to him or having an interest in his welfare be informed, as soon as possible, about his arrest and detention in a particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
  4. 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 telegraphically within a period of 8 to 12 hours after the arrest.
  5. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.
  6. An entry must be made in the case diary at the place of detention regarding the arrest which shall also disclose the name of his next friend who has been informed of the arrest and the names and details of the police officials in whose custody the arrestee is.
  7. On request, the arrestee should be also examined at the time of his arrest and any 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 and a copy must be given to the arrestee.
  8. The arrestee should be subjected to a medical examination by a 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 concerned State or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.

Arnesh Kumar v. the State of Bihar reported in (2014) 8 SCC 273 is a landmark judgment, which was pronounced by the Apex Court as it imposed further checks and balances on the powers of the police before an arrest under section 498-A of Cr.P.C can be done which deals with dowry cases. The court held that:

  1. No arrests should be made on the basis of the offence being non-bailable and cognizable. The manner of the arrest should not be casual and based on a mere allegation made against a person. The arrest should be preceded by initial investigations by the officer to assess the genuineness of the complaint.
  2. Proper facts and reasons should be presented before a Magistrate by the officer affecting the arrest within 24 hours of the arrest. The Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.P.C has been satisfied and it is only thereafter that he will authorize the detention of an accused.
  3. Police office must ensure that they do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. The police officer shall be provided with a checklist for arrest that come under section 41 of the CrPC and they shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest.
  4. On top of arrest powers, the decision not to arrest an accused must also be forwarded to the Magistrate within two weeks from the date of the institution of the case with a Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
  5. Not only Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, but this judgement will apply to all matters where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

Last year, in the case of Prem Narayan v. Union Of India Habeas Corpus No. – 27130 Of 2019, the Allahabad High Court stated that preventive detention is an infringement upon the personal freedom of an individual and it can’t be infringed in an easy-going way however notwithstanding such alerts, courts most of the times have condoned infringement of liberty, basically giving no solution for the individual for his affliction.

In the case of Khudiram v. State of West Bengal 1975 2 SCC 81, where confinement was made under the Maintenance of Internal Security Act, 1971 (MISA), the Supreme Court stated that the Court neither has the power to consider the ampleness or respectability of the grounds nor is it allowed to substitute its own supposition with that of the detaining authority which is most appropriate to take such decisions.

In the case of ShibbanLal v. State of Uttar Pradesh 1954 AIR 179 the Supreme Court of India stated that a courtroom isn’t even competent to enquire into reality or in any case of the facts which are referenced as the grounds of detainment.

In the case of Shri Pawan Kharetilal Arora v. Shri Ramrao Wagh & Others Criminal Writ Petition No.545 of 2009, an individual was confined for nine months on the grounds of twenty-four bogus cases. The Bombay High Court held that in spite of the fact that the grounds of confinement depended on gross nature of mistakes and the detaining authority committed a serious mistake which stuns judicial conscience, it acknowledged the apology by the authority and held that the authority acted in accordance with some basic honesty and was allowed protection under this section.

In the famous case of A.K Gopalan v. The State of Madras AIR 1950 SC 27, where the lawfulness of the Preventive Detention Act, 1950 was tested, Justice Das made the accompanying remark, “A procedure laid down by the law-making body may offend the Court’s feeling of equity and fair play and sentence given by the legislature may shock the Court’s idea of penology, yet that is a completely superfluous question. Our security against legislative tyranny, if any, lies in free and canny public opinion which should, in the long run, stand up for itself.”

In the case of Nand Lal Bajaj v The State of Punjab and Anr. 1981 AIR 2041, the Court while concurring that preventive detainment laws and the absence of legal representation as a framework seem to be entirely conflicting with the fundamental thought of a parliamentary arrangement of government, inferred that the issue is basically political and is the worry of statesman and not judiciary. The Supreme Court has over and over cautioned that the judges must watch judicial restraint and must not ordinarily encroach into the space of legislature or the executives.

 

Related:

Democracy can never be a police state: Supreme Court

Arrest must not be used as punitive tool: SC in Mohd. Zubair case

 

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