CODE OF CRIMINAL PROCEDURE

LAW OF CRIMES II

Submitted by

Nandini Verma

Division: C

PRN: 22010324021

BBA LLB (2022-27)

Symbiosis Law School, Hyderabad

Symbiosis International University, Pune

In March 2024

Under the Guidance of

Mr. Hifajatali Sayyed

(Assistant Professor)

Symbiosis Law School, Hyderabad

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 Report of the Committee on

DRAFT NATIONAL POLICY ON CRIMINAL JUSTICE

Ministry of Home Affairs

Government of India

May, 2022

2
 INTRODUCTION

The Criminal Procedure Code (CPC) is the primary regulation governing crook proceedings.
It covers now not only the procedural necessities but also the provisions relating to the
prevention of inflammation and the protection of the spouse and youngsters. A few
provisions of the 1973 CPC relate to the safety of human beings’ civil liberties in society.
Freedom is regarded as one of the fundamental and maximum essential human rights, which
is why it's miles stated in the Constitution
The notion of liberty in society is formally recognized in several international declarations
and treaties, significantly the Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights. These papers emphasise the global relevance of
individual freedoms and rights, establishing a benchmark for human rights protection and
promotion across the world.
The "Golden Triangle" comprising Articles 14, 19, and 211 in the Indian Constitution is
essential because it reflects the fundamental concepts of equality, freedom, and the right to
life. These provisions ensure that citizens are treated equally under the law, have the right to
voice their thoughts, associate with others, engage in their preferred livelihoods, and are
protected from arbitrary deprivation of life. The combination and interdependence of these
rights forms the basis for the maintenance of fundamental rights and liberties in Indian
democracy. Media and civil society have a vital role to play in safeguarding this golden
triangle.
They act as vigilantes, raise awareness, campaign for the marginalised, and hold those in
power accountable. Arrest is when a person is arrested by legal authorities to deprive him of
his liberty. The term “deprivation of liberty” carries a negative connotation. However, in this
case, it is used to present the accused in court with the consequences of his actions and to
prevent him from escaping. The legal authorities arrest and hold the accused, usually in
connection with a criminal charge. Chapter V of the Criminal Procedural Code 1973, Section
41 – 60 deals with the arrest of a person but it doesn’t elucidate the word “arrest” itself.

1
GOLDEN TRIANGLE OF THE CONSTITUTION OF INDIA: ARTICLES 14, 19, AND 21 B&B
ASSOCIATES LLP, https://bnblegal.com/article/golden-triangle-of-the-constitution-of-india-
articles-14-19-and-21/ (last visited Mar 13, 2024)

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These provisions ensure that persons are treated fairly under the law (Article 14)2, have the
right to free expression, travel, and organisation (Article 19)3, and are protected from being
arbitrarily stripped of life and personal liberty (Article 21)4. These articles play an important
role in protecting people's rights throughout the arrest process. Article 145 guarantees that all
people be treated fairly before the law, prohibiting prejudice during arrests. Article 19 6
safeguards individuals' rights to express themselves, congregate peacefully, and travel freely,
including when being arrested or detained. Article 217 stipulates that no individual shall be
stripped of their life or personal liberty unless under a method established by law,
guaranteeing that arrests are carried out legitimately and with adequate legal procedures.

PROVISIONS

Section 418: In the event of non-arrestable offences, the police must get a warrant before
making an arrest. A judge or magistrate issues this warrant for the benefit of the state,
authorising the arrest, detention, and seizure of the individual's belongings. In cases when a
non-arrestable offence is suspected and a complaint is made, Section 41(2)9 of the Criminal
Procedure Code (CrPC), 1973 states that an individual cannot be detained without a warrant
or an order from the magistrate, as detailed in Section 4210. The processes for arrest are
specified in Section 4611 of the Code; nevertheless, because to probable gaps in covering
within the Code, extra rules are followed in certain situations to guarantee adequate
adherence to arrest protocols.
Section 4212: of the Criminal Procedure Code (CrPC) addresses the circumstance in which a
police officer may arrest someone for refusing to furnish their name and address. When a
person commits a non-cognizable offence and refuses to divulge their identification or offers

2
INDIA CONST. art. 14
3
INDIA CONST. art. 19
4
INDIA CONST. art. 14
5
ibid
6
ibid
7
ibid
8
The Code of Criminal Procedure,1973, S.41.
9
The Code of Criminal Procedure,1973, S.41, cl .2.
10
The Code of Criminal Procedure,1973, S.42.
11
The Code of Criminal Procedure,1973, S.46.
12
ibid
4
false information, a police officer has the authority to arrest them to determine their true
name and home. Once the genuine identity and domicile are verified, the individual can be
freed by signing a bond, either with or without sureties, and then appearing before a
Magistrate as needed. If the individual is not a citizen of India, a resident of India must secure
the bond. If within twenty-four hours the true identity is not determined or if the individual
fails to comply with bond requirements, they must be promptly presented before the nearest
Magistrate with jurisdiction.
Section 4313: of the Criminal Procedure Code (CrPC) establishes the policies for arresting
human beings and the approaches to be accompanied in such instances. Section 43(1)14
empowers a citizen to arrest someone who has committed a non-bailable offence or has been
convicted of an offence. If an arrest is made below phase forty-one, the police should also
arrest the accused beneath segment forty-three (2). If a person is suspected of being guilty of
a bailable offence, but the character refuses to cooperate, the techniques mentioned in Article
4215 ought to be observed. However, if there is no evidence to prove the subject guilty, let
them go. This section describes the particular conditions under which a private person can
make an arrest and the subsequent steps to be taken based on the nature of the offence and the
individual's cooperation.

Section 4416: of the Criminal Procedure Code (CrPC) deals with the magistrate's power of
arrest. When a criminal offence is committed before a judge beneath his jurisdiction, whether
he is a choice or a judicial officer, he has the electricity to arrest the wrongdoer or order the
arrest of another character. After the arrest, the criminals are hung on bail. Likewise, all
magistrates, whether or not magistrates or magistrates, have the strength to arrest or cause the
arrest of any person underneath their jurisdiction, in any manner and at any time this is
shown.

Section 4617: of the Criminal Procedure Code (CrPC) outlines the procedure for making an
arrest. According to Section 46 (1)18 of the CrPC, the police officer or any individual making
the arrest must bodily contact or confine the frame of the individual to be arrested, except
there may be a voluntary submission to custody through word or movement. In cases related

13
The Code of Criminal Procedure,1973, S.43,.
14
The Code of Criminal Procedure,1973, S.43, cl .1.
15
ibid
16
The Code of Criminal Procedure,1973, S.44.
17
ibid
18
The Code of Criminal Procedure,1973, S.46, cl .1.

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to the arrest of a female, it's far presumed that her submission to custody upon oral
notification of arrest is familiar unless occasions indicate in any other case. If the character
resists arrest or attempts to steer clear of it, the arresting officer is permitted to use essential
force to carry out the arrest. Importantly, this section does not authorize causing harm or
death to someone who is not charged with an offence punishable by death or life
imprisonment. Moreover, on great occasions, no lady shall be arrested after sunset and before
sunrise without the prior permission of a Judicial Magistrate of the Primary Class.

Sections 4819 and 4920 of the Criminal Procedure Code (CrPC) pertain to the switch of people
to a medical institution before sentencing. Section 4821 permits for the switch to a health
facility earlier than a character has been sentenced, while Section 4922 imposes restrictions
that require the responsible clinician to are trying to find permission from the Ministry of
Justice earlier than discharging the man or woman, granting section 1723 away, or transferring
them to any other health centre. The Ministry of Justice may additionally upload Section 49 24
regulations if deemed vital. If a responsible clinician determines that a character now not
require remedy in a clinic, the Ministry of Justice can switch them lower back to prison.
However, if the individual wishes to go back to jail, they can observe the Mental Health
Tribunal for review. The Tribunal's choice on whether or not hospitalization is necessary will
influence in addition moves with the aid of the Ministry of Justice. Individuals discharged
from Section 4825 become eligible without spending a dime on Section 11726 aftercare
services

19
The Code of Criminal Procedure,1973, S.48.
20
The Code of Criminal Procedure,1973, S.49.
21
ibid
22
ibid
23
The Code of Criminal Procedure,1973, S.17.
24
ibid
25
ibid
26
The Code of Criminal Procedure,1973, S.117.

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 RIGHTS OF ACCUSED PERSONS

1. Presumption of Innocence: The accused is presumed innocent till confirmed

responsible by way of a judge or jury. The prosecutor must prove the accused's guilt
past a reasonable doubt.

2. The right to be informed of the evidence: The accused has the right to admit any
evidence the public prosecutor has about them, such as the names of witnesses who
will testify.

3. Right to remain silent: The accused has the right to remain silent at all stages of the
fraudulent method, from arrest to dismissal of the case. They are not required to
testify or defend themselves.

4. Right to Be Represented using a Lawyer: The accused has the right to speak to a legal
professional whilst they may be arrested. They can be represented in court dockets to
get help to guard themselves.

5. Right to a Fair Trial: The accused has the right to a fair trial, which includes the
proper to a fast trial, the proper to a trial with the aid of a jury, the proper to an
unbiased decision, and the right to confront witnesses.

6. Right to Medical Examination: The court docket is empowered under Section 54 to

reserve a bodily exam of the arrested person. Due to the prevalence of police brutality
and custodial deaths, the Supreme Court has reviewed its selections in instances
consisting of “Joginder Kumar, Nilabati Behera v. The State of Orissa”27, and “State
of M.P. V. Shyamsunder Trivedi”28, and issued instructions in D.K. Basu that must be
adhered to in all times of custodial interrogation and arrest.

7. The proper to not be detained for over 24 hours without judicial evaluation stipulates
that a person arrested under Section 5729 ought to no longer be stored in custody for
more than twenty-four hours. While Article 22(2)30 seems to encompass both arrests
with and without warrants, the Supreme Court clarified in the case of “State of

27
Joginder Kumar, Nilabati Behera v. The State of Orissa ,AIR 1993, SC 1960 (India).

28
State of M.P. V. Shyamsunder Trivedi ,1995 AIR SCW 2793 (India).

29
The Code of Criminal Procedure,1973, S.57.
30
INDIA CONST. art. 22, cl. 2.

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 Punjab v. Ajaib Singh” 31 that this provision especially pertains to arrests made
without a warrant. The courtroom's rationale changed into that in cases of warranted
arrests, the judicial selection to trouble the warrant already implies the need for the
arrest, accordingly negating the need for absolute safety beneath this clause

SUGGESTIONS AND CONCLUSIONS

1. Amending Section 4132: The phase must be revised to make certain that nobody can
be detained entirely based on suspicion of involvement in against the law. Police officials
should establish a prima facie case with supporting evidence before making any arrests.

2. Implementing D.K. Basu Recommendations: The tips provided within the case of
“D.K. Basu v. State of West Bengal”33 need to be identified in the use of law and strictly
adhered to. This consists of suggestions for the arrest of someone, together with the need for
a warrant, the proper to be informed of the motives for the arrest, and the right to search for
recommendations from a criminal expert.

3. Preventing Wrongful Detention: Non-governmental organizations need to be

empowered to save wrongful detention to avoid people being held in unlawful custody for
prolonged intervals with no report of detention or arrest.

4. Maintaining Investigative Diary: Police officers should preserve an investigative diary

that consists of information in their inquiry, which includes the time they commenced and
ended their investigation, the places visited, and a precis of the facts found.

5. Penalizing Non-Compliance: Any felony authority or legitimate electricity that fails to

comply with the regulation needs to be penalized and no longer be allowed to get away with
punishment.

DK BASU GUIDELINES

31
State of Punjab v. Ajaib Singh , AIR 1953 , SC 10 ( India).

32
ibid
33
D.K. Basu v. State of West Bengal, AIR 1997 , SC 610 (India).

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The D.K. Basu case34, a landmark judgment by the Hon’ble Supreme Court, established
specific guidelines for arrests to safeguard individual rights during detention and
interrogation.

Identification of Police Personnel: Officers making arrests must have visible identification
with their names and designations

Record of Arrest: A record of arrest must be prepared at the time of arrest, attested by at least
one witness and countersigned by the arrestee, containing the time and date of arrest.

Informing relatives: An arrested person has the right to inform a friend or relative of the arrest
and detention as soon as possible if the witness is no longer a friend or relative.

Notification of Arrest: Details of the arrest, including time, place and place of custody, must
be communicated to a friend or relative living outside the district within 8 to 12 hours of the
arrest.

Medical Examination: The arrestee should be examined for injuries at the time of arrest, with
major and minor injuries recorded. A medical examination by a trained doctor every 48 hours
during detention is mandatory

Legal aid and communication: An arrested person should be informed of their right to be
informed of their arrest, be allowed to see a lawyer during questioning, and be sent copies of
all magistrate documents.

LAW COMMISSIONS REPORTS

34
ibid

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The Law Commission of India, in its 177th Report35 on the Law of Arrest, proposed far-
reaching changes in the criminal laws to strike a balance between the liberty of the citizen
and the societal interest in maintaining peace, law and order. It also proposed measures to
hold the police accountable for their omissions and wrongdoings.

The Law Commission has recommended an amendment to Section 4136 of the Criminal Code,
1973, which deals with the arrest of persons and regulates the situation where any police
officer can arrest any person without a warrant or an order from a judge. According to the
Commission, this section is vague and ambiguous. The Commission also recommended
deleting subsections 2 of 42 of the Criminal Code37, as it is unnecessary and redundant in the
Commission's opinion. The Commission recommended inserting a new provision in the form
of Section 60A38 which provides that the arrest must be made strictly by the provisions of the
court. A large number of arrests are for bailable offences, most of which must be non-
cognizable offences. The changes proposed by the Commission to the Criminal Code are
necessary to modify the power of arrest by the police, as they currently exercise an
uncontrolled power.

The Law Commission suggested that the detaining authority should be responsible for the
health, safety and welfare of those arrested. Accordingly, the Commission recommended the
replacement of Section 5439 by the insertion of a new Section 55A40 which provides that it
should be the duty of the person having the accused in custody to take reasonable steps for
the health and safety of the accused. 5441 of the Criminal Code deals with the examination of
arrested persons by a general practitioner.

CONCLUSIONS

35
(Law Commission of India 117) (1986).

36
ibid
37
ibid
38
The Code of Criminal Procedure,1973, S.60. a.
39
The Code of Criminal Procedure,1973, S.54.
40
The Code of Criminal Procedure,1973, S.55. a.
41
ibid

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All processes adhere to the Rule of Law, governing the operations of all branches of the State
equipment, encompassing individuals and entities concerned with prosecuting and
investigating cases. The number one obligation of the police is to protect the rights of all
people inside society, which includes those who have been arrested. Therefore, it is
incumbent upon the police to uphold the rights of the accused, ensuring they're handled justly
by prison approaches and now not subjected to undue harassment. It is the responsibility of
the police to shield the rights of the accused and make certain they're handled by the
regulation, without dealing with needless harassment. There is an urgent requirement for
improvements inside the Criminal Justice Administration to emphasise the kingdom's
obligation to interact, reform, and reintegrate offenders into society. Immediate reforms in
Criminal Justice Administration are essential for the authorities to acknowledge its essential
position in enticing and rehabilitating individuals who've committed offenses.

REFERENCES

1. Law Commission of India (1986)., https://bprd.nic.in/WriteReadData/Orders/SOP.pdf (12th

March 2022, 11:06 pm).
2. The Code of Criminal Procedure,1973.

3. Neha Rani & Shivam Sharan, Lacunae in provision of arrest: Need for police accountability
and Reformation, SSRN ELECTRONIC JOURNAL (2018),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3249342

4. (Law Commission of India 117) (1986).

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