Arrest Procedure

“Darkness of Cages shall Allow you to Breathe

For Thou shall not be Killed of Inhumanity !!”

Article 21 of Indian Constitution provides few sparkles of hope to the lives of

arrested, undertrials and convicts. The treatment of such people has to be humane
and in the manner prescribed by law. In Maneka Gandhi v. Union of India {AIR
1978 SC 597} the Supreme Court held that State and for that matter the police as
its principal law enforcing agency have the undoubted duty to bring offenders to
book. Even so, the law and procedure adopted by the State for achieving this
laudable social objective have to conform to civilized standards. The procedure
adopted by the State must, therefore, be just, fair and reasonable.

I have been asked this question many times, “Why do criminals need rights when
they have criminally violated rights of others?” Well, criminal jurisprudence is
based on studies on criminals’ behaviour, impact of crimes on victims, criminals
and society etc.

The primary purposes of criminal law are Deterrence, Retribution and Protection.
Reformation & Rehabilitation are the silent purposes to improve the hues of
society. “Once Criminal, Always Criminal” can’t sustain the test of
reasonableness, wisdom and conscience. All crimes are not same and so aren’t
criminals. Gravity, nature and involvement define which yardstick of
jurisprudential law is to be applied. However, application of yardstick is based on
discretion to be exercised within the limit of State law.

In my everyday endeavour to make our society a better place to live, I am

launching Series – ‘Know Your Rights’, in which I would provide elemental
information pertaining to varied subjects and intriguing aspects of law. Today I am
writing about Rights of an Arrested Person.

The powers for making an arrest by police are subject to restraints and judicial
supervision and scrutiny to protect the fundamental right to life under Article 21 of
the Constitution of India of all persons. Imposition of such restraint is clearly the
recognition of rights of the arrested person. Chapter-V of the Criminal Procedure
Act (CrPC) contains provisions relating to arrest of persons, restrains and judicial
supervision & scrutiny.
RELEVANT LEGAL PROVISION REGARDING IMPORTANT RIGHTS
OF AN ARRESTED PERSON:

i. WHEN POLICE IS ARRESTING WITHOUT WARRANT: Under Section

41 of CrPC wide powers are conferred on police to arrest, mainly in cognizable
offences, without having to go to Magistrate for obtaining warrant of arrest. There
can be no legal arrest if there is no information or reasonable suspicion that the
person has been involved in a cognizable offence or commits offence(s), specified
in Section 41.

The burden is on the police officer to satisfy the court before which the arrest is
challenged that he has reasonable ground of suspicion. In exception to the above,
Section 45 of CrPC provides that members of Armed Forces cannot be arrested for
anything done in discharge of official duties, except after obtaining consent of the
central government.

ii. ARREST HOW MADE – Section 46 of CrPC envisages modes of arrest i.e.

submission to custody, touching the body physically or confining the body. Arrest
is restraint on personal liberty. Unless there is submission to custody, by words or
by conduct, arrest can be made by actual contact. In case force is required, it
should be no more than which is justly required and this section does not give a
right to cause death of a person, who is not accused of an offence punishable with
the death or with imprisonment for life.

Where a woman is to be arrested, unless the police officer is a female, the police
officer shall not touch the person of the woman for making an arrest and arrest
would be presumed on her submission to custody on oral intimation. After sunset
and before sunrise, no woman can be arrested, except in exceptional circumstances
and upon prior written permission from the local Magistrate.

iii. NO UNNECESSARY RESTRAINT – Section 49 of CrPC provides that there

should be no more restraint than is justly necessary to prevent escape i.e.
reasonable force should be used for the purpose, if necessary; but before keeping a
person under any form of restraint there must be an arrest. Restraint or detention
without arrest is illegal.

iv. RIGHT TO KNOW THE GROUNDS OF ARREST: Section 50(1) CrPC

provides, “every police officer or other person arresting any person without a
warrant shall forthwith communicate to him full particulars of the offence for
which he is arrested or other grounds for such arrest.” Apart from the provisions of
CrPC, Article 22(1) of Constitution of India provides, “No person who is arrested
shall be detained in custody without being informed, as soon as may be, of the
grounds of such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.”

Based on decisions of Supreme Court in Joginder Kumar v. State of UP, (1994) 4

SCC 260 and D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 substantial
amendments have been enacted in Section 50-A of CrPC in the year 2006 making
in obligatory on the part of the police officer making an arrest to inform the friend,
relative or any nominated person of the arrested person about his arrest, inform
arrested person of his rights and make an entry in the register maintained by the
police. The magistrate is also under an obligation to satisfy himself about the
compliance of the police in this regard.

v. PERSON ARRESTED TO BE INFORMED OF THE RIGHT TO BAIL

– Section 50(2) of CrPC provides that any person arrested without warrant shall be
immediately informed of the grounds of his arrest, and if the arrest is made in a
bailable case, the person shall be informed of his right to be released on bails.
Section 50 is mandatory and carries out the mandate of Article 22(1) of the
Constitution of India.

vi. SEARCH OF ARRESTED PERSON- Section 51 of CrPC allows a police

officer to make personal search of arrested persons. With regard to the provisions
of this section, the reference may be made to Article 20(3) of the Constitution of
India which is a guarantee to the accused against self-incriminating testimonial
compulsion. Though an accused cannot be compelled to produce any evidence
against him, it can be seized under process of law from the custody or person of the
accused by the issue of a search warrant.

vii. MEDICAL EXAMINATION OF ARRESTED PERSON – Section 54 of

CrPC provides for compulsory medical examination by a medical officer in service
of central or state government, or by registered medical practitioner, upon non-
availability of such medical officer. Female arrestees can only be examined by
female medical officer or registered medical practitioner.

However, Section 53 & 53A of CrPC provide if there are reasonable grounds for
believing that an examination of arrestee, on a charge of committing rape or other
offence, will afford evidence so as to the commission of such offence, it shall be
lawful to medically examine blood, blood stains, semen, hair samples, finger nail
clippings by use of modern & scientific techniques including DNA and such other
tests, which the medical officer thinks necessary in a particular case, acting at the
request of a police officer.

viii. PERSON ARRESTED NOT TO BE DETAINED MORE THAN 24

HOURS – The constitutional and legal requirements to produce an arrested person
before a Judicial Magistrate within 24 hours of the arrest must be scrupulously
observed (Khatri v. State of Bihar, AIR 1983 SC 378). Section 57 is concerned
solely with the question of the period of detention. The intention is that the accused
should be brought before a magistrate competent to try or commit, with the least
delay. The right to be taken out of police custody by being brought before a
Magistrate is vital in order to prevent arrest and detention, with a view to extract
confession or as a means of compelling people to give information.

ix. RIGHT TO FREE LEGAL AID – while after the arrest, a person shall have
the right to consult and to be defended by a counsel of his choice; arrestee shall be
entitled to free legal aid. Apart from ensuring a fair prosecution, a society under
the Rule of law has also a duty to arrange for the defence of the accused, if he is
too poor to do so. Free legal aid to persons of limited means is a service which the
modern State, in particular a welfare state, owes to its citizens (Law Commission
of India, 14th Report, Vol. I, pp 587-600).

LANDMARK JUDGMENTS GIVING DYNAMIC EXPANSIONS TO THE

RIGHTS OF ARRESTED PERSON(S):

The great political philosopher Bolingbroke once said,

“Liberty is to the collective body, what health is to every individual body. Without
health no pleasure can be tasted by man; without Liberty, no happiness can be
enjoyed by society.”

Constitutional Preamble guarantees Liberty to each and every citizen of India, but
such is the tragedy of choosing the wrong path that repercussions in the form of
legal action would most certainly follow the deed. Even so, as mentioned earlier,
certain humanely rights have been granted to such a wrongdoer during and post
arrest. These rights, as we see them today, however, did not exist until the various
landmark judgments were passed.

In Nilabati Behera v. State of Orissa and Ors.; (1993) 2 SCC 746, a three Judge
bench of Supreme Court held, “It is an obligation of the State, to ensure that there
is no infringement of the indefeasible rights of a citizen to life, except in
accordance with law while the citizen is in its custody.
The precious right guaranteed by Article 21 of the Constitution of India cannot be
denied to convicts, under trials or other prisoners in custody, except according to
procedure established by law.

There is a great responsibility on the police or prison authorities to ensure that the
citizen in its custody is not deprived of his right to life. His liberty is in the very
nature of things circumscribed by the very fact of his confinement and therefore his
interest in the limited liberty left to him is rather precious. The duty of care on the
part of the State is strict and admits of no exceptions. The wrongdoer is
accountable and the State is responsible if the person in custody of the police is
deprived of his life except according to the procedure established by law.”

In Joginder Kumar case (supra) the question arose for consideration was,
‘whether the private rights of an individual superseded the protection of society’.
Considering the increase in crime and human rights violations by way of
indiscriminate arrests, the Hon’ble Court sought a way to strike a balance between
the two. It was observed that a realistic approach was essential to the problem.

It was held by a three-judge bench of Supreme Court that an arrest cannot simply
be made because a police officer has been conferred with this particular power.
There remained a difference between the power to arrest and justification for the
exercise of this power.

Mere allegation of an offence is not a reason good enough to make an arrest of the
person. Similarly, a reasonable belief is not enough for a person to be arrested by a
police officer, keeping in mind the constitutional rights granted to the person. It
was also held that Articles 21 and 22(1) of the Constitution should be protected
and recognized.

For the effective enforcement of these fundamental rights, an arrested person being
held in custody is entitled, if he so requests, to have one friend relative or other
person, who is known to him or likely to take an interest in his welfare, be told, as
far as is practicable, that he has been arrested and where is he being detained. 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 flow from Articles 21 and
22(1) and enforced strictly.

Further in Joginder Kumar case (supra), the Third Report of National Police
Commission was cited, which mentioned power of arrest as one of the chief
sources of corruption in the police and suggested that a staggering number of
arrests (nearly 60%) were either unnecessary or unjustified and that such
unjustified police action accounted for 43.2% of the expenditure of the jails.

The 3rd Report of the National Police Commission observed:

“An arrest during the investigation of a cognizable case may be considered

justified in one or other of the following circumstances:

(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it
is necessary to arrest the accused and bring his movements under restraint to infuse
confidence among the terror stricken victims.

(ii) The accused is likely to abscond and evade the processes of law.

(iii) The accused is given to violent behavior and is likely to commit further
offences unless his movements are brought under restraint.

(iv) The accused is a habitual offender and unless kept in custody he is likely to
commit similar offences again.”

In another landmark judgment in D.K. Basu (supra) it was held by a 2 Judge bench
of Supreme Court that custodial violence, not excluding torture and death in lock
ups are violative of the Rule of Law.

The Court observed that regardless of sundry Statutory and Constitutional

provisions specially framed to safeguard the rights of arrested persons, there have
been several events of torture and death in police custody.

The Court stated that custodial deaths had to be one of the worst crimes in a
civilized society governed by the Rule of Law. The Supreme Court held that being
in custody did not strip off a person of his Fundamental Rights granted under
Article 21 and only the restrictions permitted by law could be imposed on such a
person.

Further, a list of 11 guidelines in addition to the Constitutional and Statutory

Safeguards were issued by the Court, which were to be followed in all cases of
arrest and detention. These guidelines are as follows:

(i) The Police Personnel carrying out the arrest and handling the interrogation of
the arrestee should bear accurate, visible and clear identification and name tags
with their designations. The Particulars of all such personnel who handle
interrogation of the arrestee must be recorded in a register.

(ii) That the Police Officer carrying out the arrest of the arrestee shall prepare a
memo of the arrest at the time of arrest and such memo 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
counter signed by the arrestee and shall contain the time and date of arrest.

(iii) A person who has been arrested or detained 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 interest in his welfare
being informed, as soon as practicable, that he has been arrested and is being
detained at the particular place, unless the attesting witness of the memo of the
arrest is himself such a friend or a relative of the arrestee.

(iv) 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 period of 8 to 12 hours after
the arrest.

(v) The person arrested must be made aware of his right to have someone informed
of his arrest or detention as soon as he is put under arrest or is detained.

(vi) An entry must be made in the diary at the place of detention regarding the
arrest of the person which shall also disclose the name of the next friend of the
person who has been informed of the arrest and the names land particulars of the
police officials in whose custody the arrestee is.

(vii) 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.

(viii) The arrestee should be subjected to medical examination by the trained

doctor every 48 hours during his detention in custody by a doctor on the panel of
approved doctors appointed by Director, Health Services of the concerned State or
Union Territory, Director, Health Services should prepare such a panel for all
Tehsils and Districts as well.
(ix) Copies of all the documents including the memo of arrest, referred to above,
should be sent to the Magistrate for his record.

(x) The arrestee may be permitted to meet his lawyer during interrogation, though
not throughout the interrogation.

(xi) A Police Control Room should be provided at all district 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 Board, it should be
displayed on a conspicuous notice board.