ARREST POLICY FOR INDIA

SUBMITTED BY:
M Vyshnavi
Division D
BBA LLB (2021-26)
PRN: 21010324071

SYMBIOSIS LAW SCHOOL, HYDERABAD

SYMBIOSIS INTERNATIONAL (DEEMED UNIVERSITY), PUNE

In March, 2023

Under the guidance of

Mr. Hifajatali Sayyed
Assistant Professor
Symbiosis Law School, Hyderabad
1. INTRODUCTION

Arrest
The Code of Criminal Procedure, 1973 has no definition for the word "arrest." A person is
said to be "arrested" when they are held in custody by the government in order to deny them
their freedom. In R.R. Chari v. State of Uttar Pradesh1, the Supreme Court stated that an
arrest is "the act of being brought into custody to be legally charged with a crime." The court
claims that it involves taking possession of a person in a constitutional sense (body of a
person). In the case, “The State of Punjab v. Ajaib Singh and Anr.”2 the court observed that
“arrest is the physical restraint put upon an abducted person in the process of recovering and
taking that person into legal custody with or without any allegation or accusation of any
actual or suspected commission of the offence”.

2. POLICE PROCEDURE FOR ARREST

“The process of arrest or the manner in which the arrest can be affected by a police officer or
any other person is dealt with under Section 46 of the Code of Criminal procedure”.

1. For the purpose of making an arrest, it is necessary that the body of the person should
be actually touched or confined by the police officer. Only verbal intimidation
without physical contact or surrender will result in arrest. The individual who is to be
arrested may also submit himself to custody by either words or action. It is also stated
that if the individual to be arrested is a female, and then the male police officer shall
not touch her to arrest her only if there is a female police official present or necessary
under the circumstances. Furthermore, her surrender to detention shall be inferred
based on the arrest's verbal intimidation.
2. When a person being detained aggressively resists or attempts to avoid arrest, the
officers are entitled to use a moderate level of force to arrest the man.
3. This clause doesn't give them the power to murder someone who wasn't charged with
a felony, capital punishment or life in prison.

1
R.R. Chari v. State of Uttar Pradesh, 1951 AIR 207
2
The State of Punjab v. Ajaib Singh and Anr. 1953 AIR 10
 4. A woman cannot be detained after dusk and before daylight, except under
extraordinary circumstances. In this instance, the woman police official can obtain
prior authorization to arrest a person from the “Judicial Magistrate of the local
jurisdiction by making a written report”.
5. Parliament adopted this provision in response to numerous case laws concerning
women's safety in the courts. By submitting a written report, the female police officer
must obtain “the consent of the first-class judicial magistrate”.

Section 49 of the Criminal Procedure Code states that the detained individual shall not be
subjected to any unwarranted restriction. The constraint should only be applied to the extent
required to prevent the subject from fleeing.

Special Provisions for Women

“Females are not to be arrested without the presence of a lady constable, and no females are
to be arrested after sundown, but there are exceptions in some cases, such as when the crime
is very serious, and arrest is essential, then in such cases, special orders can be issued, and it
depends on the facts and circumstances of each case. They should be housed in separate
facilities or lock-ups. In addition to it, Section 53(2) embodies the beneficial notion that a
female medical practitioner should conduct a female medical check-up”3.

3. POST-ARREST PROCEDURE
1. According to Section 50(1) of the CrPC, it is the obligation of the police officials or any
individual apprehended without a warrant to tell the person detained of the gravity of the
offence for which they were detained.
2. In the instance of a warrant arrest, the police officer is obligated by Section 75 CrPC to
tell a person detained about the nature of the arrest and, if necessary, to present the order.
If this is not done, the arrest will be declared illegal.

“The Indian Constitution also supports this and had emphasized it in Article 22(1), a
fundamental right. It prescribes certain rights that are present with the accused at the time
of arrest(fundamental in nature). It says that no person who is arrested shall be detained in
3
Radhika Maheshwari, Police Procedure For Arresting Someone in India, LAW CORNER (Apr. 30, 2022,
03:44pm) https://lawcorner.in/police-procedure-for-arresting-someone-in-india/
#Police_Procedure_For_Arrest_With_Or_Without_Warrant
 custody without being informed about the reason for arrest and consulting a legal
practitioner of his choice. In re Madhu Limaye case, the petitioner was not informed about
the grounds of his arrest along with his companions. He challenged this under Article 32
as it was in violation of his fundamental right before the Supreme Court. The Supreme
Court observed that there was a violation of an essential and vital right of the petitioner”4.

3. When a police officer makes an arrest without a warrant, that is his responsibility to
appear before the magistrate without undue delay (usually within 24 hours). It is also
stated that the detained individual may not be brought anywhere other than the police
station before appearing before the magistrate. “This is stated in Sections 56 and 76 of
CrPC”.
4. Aside from that, the police officer must always wear a clean, observable, and accurate
identification of his name, which may aid in his identity. As soon as the arrest is made, a
memo that is witnessed by a minimum of one eyewitness should be signed and dated by
the apprehended individual.

Under Sections 41D and 303 of the CrPC, the accused individual has a right to contact an
attorney of his preference during questioning.

4. RIGHTS OF AN ARRESTED PERSON

4.1 RIGHT TO SILENCE

General legal principles are connected to the "right to silence." It suggests that courts or
tribunals shouldn't usually infer that someone is guilty of any offence merely because he
didn't respond to the questions the police or the court asked him. Evidence law states that any
statement or confession made to a police officer is not admissible in court.

Confessions are frequently connected with the right to remain silent. In front of a magistrate,
a suspect may break his or her silence, but it must be voluntarily given and free from coercion
or reward. Every person has the right to self-incrimination under Article 20(3) of the Indian
Constitution, which states that anybody who has been accused of a crime is not required to
testify against oneself.

4
Shruthi Singh, Arrest of Persons Under CrPC, 1973, BLOG IPLEADERS (Apr. 30, 2022, 04:02pm)
https://blog.ipleaders.in/arrest-of-a-person/#Post_arrest_procedures
4.2 RIGHT TO KNOW THE GROUNDS OF ARREST

Whether an arrest is performed in accordance with a warrant of arrest or when a police officer
makes an arrest without a warrant, Sections 50, 55, and 75 recognise the right to be informed
of the reason for the arrest.

According to "Section 50(1) CrPC," any police officer or other person who is detained
without a warrant must immediately inform the suspect of all the specifics of the offence. The
required notification period to the suspect should be reasonable. The suspect has the right to
file a lawsuit pursuant to Article 32 if the person making the arrest or a police officer abuses
this privilege. A Habeas Corpus warrant would be issued against the petitioner, which would
result in their release.

4.3 INFORMATION REGARDING THE RIGHT TO BE RELEASED ON BAIL

'Where a police officer arrests any person without a warrant, other than a person accused of a
non-bailable offence, he has the duty to inform the arrested person that he is entitled to be
released on bail, and he may arrange for sureties on his behalf,' states Section 50(2) of the
Criminal Procedure Code. This will undoubtedly be useful to those who may not be aware of
their right to release on bail in the event of a bailable offence. The connection between the
public and the police may thus be improved to some extent as a result of this legislation,
which may also lessen public unrest.

4.4 RIGHT TO BE TAKEN BEFORE A MAGISTRATE WITHOUT DELAY

"Everyone who is arrested must appear before the closest magistrate within 24 hours of the
arrest, except the time it takes to travel from the location of arrest to the magistrate's office,
according to Article 22(2) of the Constitution. Without the magistrate's approval, no one may
be held in police custody for a longer amount of time. The same is likewise provided for
under Sections 56 and 57 of the CrPC. The arrest will be illegal if the subject is not brought
before the magistrate within a reasonable amount of time and without a valid explanation.

4.5 RIGHTS AT TRIAL

Right to a Fair Trial: Article 14 of the Constitution ensures the right to equal protection under
the law. The Code of Criminal Procedure further states that an open court trial is required for
a fair trial. This clause is intended to prevent convictions from being acquired in secret. In
some extreme instances, the trial may be held behind closed doors.

Right to a Speedy Trial by the Constitution of India: Though this privilege is not explicitly
specified in the Constitution, the Supreme Court in the Hussainara Khatoon case mandated
that the inquiry in the trial be completed "as expeditiously as possible".

4.6 RIGHT TO CONSULT A LEGAL PRACTITIONER

Everyone who is imprisoned has the right to speak with a lawyer of his or her choosing. This
is recognised as a basic right in Article 22(1) of the Indian Constitution, which cannot be
refused under any circumstances. "Section 50(3) of the Code additionally states that the
individual being prosecuted has the right to be represented by a pleader of his choosing". This
starts immediately as the individual is apprehended. The conference with the attorney may
occur in the presence of a police officer rather than within his hearing range.

4.7 RIGHT OF FREE LEGAL AID

Free legal aid refers to free legal assistance to those who are financially unable to pursue a
lawsuit or other legal proceedings in a court of law or before any judicial tribunal or judicial
body. Article 39A (Directive Principles of State Policy) states that the state's responsibility is
to offer justice in simple terms. Any person may contact the courts to assert their rights. It
guarantees that justice is provided on the basis of equal opportunity through free legal aid or
legislation that benefits persons who are unable to access justice due to economic
circumstances or any other problem.

4.8 RIGHT TO BE EXAMINED BY A MEDICAL PRACTITIONER

“Section 54 this section empowers the court to get the arrested person medically examined. if
an arrested person claims that medical examination of his body would lead to a detail which
would dismiss the fact of commission of the crime by him, or some detail that might lead to
evidence towards the commission of the crime by some other person against his body”5.

5
Akhil, supra note 6
5. CASE LAWS
1. D K BASU V. STATE OF W.B.

In light of the increasing incidence of incarceration fatalities, this ruling by India's Supreme
Court is significant. Due to the urgency of the situation, the executive chairman of legal aid
services sent a letter in response to the rising number of custody fatalities, and the court
treated this letter as a writ petition. In this case, the court declared that there is no suitable
legal process in India for handling instances of custodial mortality.

2. JOGINDER SINGH AND ANR. V. STATE OF PUNJAB6

“In this case, the court observed that for the execution of Article-21 as well as Article-22(1)
it is imperative that:-

1. The arrested person has the right to inform his friend, relative or any other person in
his interest about his arrest.
2. The police official must inform the arrested person all his rights right after
detainment/ arrest of the accused person.
3. The entry of the arrest with complete details must be made in a diary which must
include the name of the person who has been informed about the arrest”7.

3. JOGINDER KUMAR V. STATE OF UP8

“A petition was filed under Article 32 by a young lawyer. The Supreme Court held that it is
the right of an accused to be informed of the grounds of his offence, informed someone of his
arrest and to consult a lawyer is inherent in Article 21 and Article 22 of the Constitution. It
was also held that a police officer cannot arrest just because he has the power to do so. It
should exhibit a clear justification for every arrest. Since there is some amount of harm
caused to the reputation of a person when he is put behind bars. Therefore every arrest should
happen after reasonable satisfaction and the minimum level of investigation as to the
genuineness and bona fides of a complaint. Apart from these certain guidelines, were also

6
Joginder Singh And Anr. vs State Of Punjab AIR 1979 SC 1876
7
Rights of an Arrested Person in India, HELP LINE, (Apr. 30, 2022, 07:33pm)
8
Joginder Kumar v. State of UP 1994 AIR 1349
provided that needed to be necessarily followed at the time of the arrest. This case law is
taken into consideration for looking for rules apart from those mentioned in CrPC”9.

4. BIRENDRA KUMAR RAI V. UNION OF INDIA10

“It was determined that an arrest does not have to be completed by handcuffing the
individual, but can alternatively be completed by spoken words provided the person submits
to custody. Section 46 sub-section [4] provides women with special protection, prohibiting
women from being arrested after sunset and before sunrise, except in exceptional
circumstances, in which case a woman police officer may arrest a woman after filing a
written report and obtaining prior permission from the concerned judicial magistrate of first
class”.

6. SUGGESTIONS AND CONCLUSION

Although having several rights and safeguards under the 1973 Indian Code of Criminal
Procedure, the ability to make an arrest is still being abused and illegally employed. The
ability to make someone subject to arrest is commonly utilized to get money or other
valuables from the person's adversaries. There have been several false allegations levelled
against innocent persons using this power of arrest in legal disputes. The police officer is
given unusual authority that is often misused by the broad discretion granted to arrest a
person in situations involving crimes that are subject to bail as well as the right to make
preventative arrests.

The increase of mortality while in detention in India is a huge additional concern. The police
officer does not have the right to torture anyone in his care, even if the persons who were
held had committed specific offences. Some police officers torture the accused in the third
degree even when conducting an inquiry to get information.

Under Section 41 of the Code, the police officer has a wide range of discretionary authority
while making an arrest. According to this section of the legislation, the officer has the right to

9
Shruthi, supra note 5
10
Birendra Kumar Rai v. Union of India 1992 CriLJ 3866
decide whether a complaint is valid and if there is enough cause for suspicion based on the
claim. On what is deemed appropriate under the section's phrasing, the code is ambiguous
and silent. Because of this, the officer has the option to misuse the authority to make an arrest
based on a claim of a non-cognizable violation. Although the officer will be obligated to
record the reasons, there are no recognised guidelines for figuring out what is reasonable.
This was also mentioned in the 177th Law Commission's report. As a result, this regulation
would need to be more specific about what is permissible. Making it necessary for the
arresting officer's approval to be obtained before the arrest can be made will help to reduce
the number of unnecessary arrests.

It is not ethically acceptable to advocate for utilising all available tools to accomplish an
arrest. There are no restrictions or limitations on the methods that may be employed, giving
the police the chance to abuse this privilege. The Indian Constitution forbids the use of severe
methods by police officials when making an arrest, which is unethical. Even if they are
criminals, police cannot violate their rights since they are citizens. There should be certain
restrictions on the statement "using whatever methods required to bring about an effect to the
arrest." The Code should concentrate on establishing restrictions and giving the police
officers a set of rules they may utilise to make an arrest effective. The degree or level to
which the police personnel can use force to make the arrest should also be mentioned in the
Code.

There should be at least one legal expert at every police station. It is well known that police
personnel receive inadequate training in the fundamentals of the law. Every of the stations
must have a staff member who is well-versed in legal matters. Also, this will guarantee that
the detained individuals are aware of their rights. Police stations should be well-equipped
with cameras to provide additional security for people who have been arrestee’s rights. With
the installation of cameras, the problem of persons dying while being kept in jail will decline.
The protection of everyone's rights in society, including those of those who are incarcerated,
is the police's first and most important responsibility.

As a result, it is the responsibility of the police to uphold the rights of the accused, ensure that
they are handled fairly and in accordance with the law, and ensure that they are not overly
harassed. Within twenty-four hours of being notified of their rights, including the nature of
their arrest and whether or not they are entitled for release, the detained individual must
appear before a court. In order to safeguard women's rights and stop erroneous claims of
abuse or unnecessary torture against police officers, it should be mandatory for female arrests
to be documented.

In conclusion, it may be claimed that these rules were broken and ineffectively applied even
though there are regulations dictating how an arrest should be made and the rights of the
detained individual. The police misused their authority and disregarded their responsibilities.
The general public's misunderstanding of their rights is also a big contributing factor.