Meaning of Arrest
The term arrest, stands for the meaning that apprehension of a person by legal authority so as to cause deprivation of liberty.
Furthermore, arrest can also be understood as a seizure or forcible restraint. It is an exercise of power in order to deprive a person of his or her liberty and involves the keeping of a person in custody by legal authority, especially, in response to a criminal charge.
Under criminal law, arrest is an important tool in order to bring an accused before the court and to not let him abscond.
Process of making an arrest under the CrPC
It is under the section 46 of the code which states the mode of with or without warrant. In order to make an arrest the police officer /other person making the same, is bound to actually touch or confine the body of the person who is supposed to be arrested until unless there is a submission to custody by words or action.
It is to be noted here that in cases when the police arrests a person in execution of an arrest warrant issued by a magistrate, there shall be no handcuffing of the person to be arrested until unless the magistrate has ordered to do so.
In cases where a woman is to be arrested, her submission to custody shall be presumed on an oral intimation of arrest unless the circumstances indicate the contrary, or unless there is female police officer, the male officer making the arrest shall not touch the woman who is to be arrested.
It is when person to be arrested forcibly resists the endeavour to be arrested, or attempts in any manner to evade the arrest, then the police officer or other person affecting the arrest may use all means necessary to give effect to the arrest.
The code however under any circumstance does not give right to cause death of a person who is not accused of any offence which is punishable with death or with imprisonment for life.
No women shall be arrested after sunset and before sunrise except under exceptions and where such exceptional circumstances exist, it is the duty of the woman police officer to make a written report, and obtain the prior permission of the Judicial Magistrate of the first class with competent jurisdiction of the offence for which such arrest is to be made.
Why rights of Accused are crucial ?
The benefit of the presumption of innocence of the accused till the time he is actually found guilty at the ending of a trial substantiated with evidence, is one of the basic tenets of our legal system. It is a characteristic of our democratic society that even the rights of the accused are deemed to be sacrosanct, and even though he is charged with an offence however that does not render him as a non-person. Our statute is quite careful towards anyone’s “personal liberty” and hence doesn’t permit the detention of any person without proper legal sanction.
It is provided by the article 21 of our constitution that there will be no person who shall be deprived of his life or personal liberty except according to procedure established by law. The procedure laid down by this article must be followed in a ‘right, just and fair’ and not in any arbitrary, fanciful or oppressive manner. It is expected that the arrest should not only be legal but justified also. Even the Constitution of India, recognizes the rights of arrested person under the Fundamental Rights.
Hence, the accused has been provided with certain rights under the law and the general rationale behind these rights is that the government has conferred enormous resources for the prosecution of individuals’, and therefore accused are entitled to some protection from misuse of those powers by the government.
Consequently, accused has vested in him certain rights during the course of any investigation; enquiry or trial of an offence with which he is charged and hence, he should be protected against any form of arbitrary or illegal arrest. It is to be noted that no arrest can be formed on the basis of mere suspicion or information. No matter how much the degree of suspicion is or however impeachable it is, no private person is allowed to follow and arrest a person on the statement of another even private person cannot follow and arrest a person on the statement of another person.
In the leading case of Kishore Singh Ravinder Dev vs. State of Rajasthan, it was said that in India the constitutional, evidentiary and procedural laws have made elaborate provisions in regard to protecting the rights of accused and with a view to protect his dignity as a human being and providing him benefits of a just, fair and impartial trail.
However, in yet another case of Maneka Gandhi vs Union of India, it was held by the court that no matter what the procedure the state takes into action, the basic rule of it being carried out in a just, fair and reasonable way should be adhered to.
There are two types of rights available to the arrested-
1) Rights at the time of arrest
2) Rights at the time of trial
Below has been explained the rights available under both these categories:
Right to remain silence:
The ‘right to silence’ has its origin from common law principles. So in general sense the courts or tribunals should not conclude that the person is guilty of any conduct merely because he was not responding to questions which were raised by the police or by the court. Even the Justice Malimath Committee in its report opinioned that right to silence is a much needed concept in societies where anyone can arbitrarily be held guilty of any charge. Right to silence revolves around confession basically. Also since according to law of evidence, any statement or confession made to a police officer is not admissible in a court of law, it needs to be observed that in case the accused confesses infront of the magistrate then such confession should be voluntary.
Article 20(3) of Constitution of India guarantees every person the right against self-incrimination, and it has been stated under this article that no person, who has been accused of an offence, shall be compelled to act as a witness against himself. This same rule has been reiterated by a decision of Supreme Court in the case of Nandini Sathpathy v. P.L.Dani and it was held by the court in this case that no one can forcible extract any statement from the accused and no matter what, the accused has the sole right of being silent during the course of investigation and interrogation.
It was held by the Supreme Court again in the year 2010 that narco-analysis, brain mapping and lie detector test are in violation of Article 20(3) of the Constitution of India and that by administration of these tests, forcible intrusion into a person’s mind is being conducted which further nullifies the validity and legitimacy of this right.
Right To Know The Grounds of Arrest
1. According to Section 50(1) of Cr.P.C., an accused who is being arrested by any police officer, without any warrant, has the right to know the full particulars of offence for which he is being arrested, and so it’s the undeniable duty of the police officer to inform the accused of the particulars.
2. Under section 55 of Cr.P.C., it is the right of the accused to know in case of being arrested, the written order against him, specifying the offence or other cause for which the arrest is being made. The arrest will be illegal in case of non compliance of this provision.
3. In case when the person is being arrested under a warrant, then according to Section 75 of Cr.P.C, any person who is executing such warrant must notify the person who is being arrested, the content of such warrant, or show the warrant if required. If under any circumstance the substance of the warrant is not notified, the arrest would be unlawful.
4. The constitution of India recognises this as fundamental right also. Under Article 22(2) of the constitution it has been said that person who is arrested shall not be detained in custody without being informed as soon as possible of the grounds for which such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.
The rules regarding this were upheld in the cases of Joginder Singh vs. State of U.P. and D.K. Basu vs. State of West Bengal, that it is mandatory under Section 50-A on the part of the police officer to not only inform the friend or relative of the arrested person about his arrest etc. but also to make an entry about the same in the register maintained by the police. It is the duty of the magistrate to satisfy himself about the compliance of the police in this regard.
Informing regarding the right to be released on bail
It is to be seen that any person who is to be arrested without a warrant and who is accused of bailable offence that he be informed by the police officer about his right regarding to be released on bail by payment of the surety amount.
Right of an arrested person to be taken before magistrate without delay
It is the duty of the authorised person making an arrest that the arrested person be bought before a judicial officer without any unnecessary delay, no matter how the arrest is made with or without warrant. Along with this provision it has to be seen that the arrested person should be taken and confined in a police station only and no other place. The same has been stated in section 56 and 76 of Cr.P.C.
Section 56 of Cr.P.C. states that the person who is arrested is required to be taken before a magistrate or officer in charge of police station. Also in cases where the police officer makes an arrest without warrant, then in such case the arrested person shall be taken to the magistrate with competent jurisdiction or before the in charge of police station without any delay.
Section 76 of Cr.P.C. states that the arrested person needs to be bought before the court without any unnecessary delay. In accordance with the provisions of section 71 in regard with the police officer or other person executing a warrant of arrest, they shall without unnecessary delay and due to security purposes bring the person arrested before the Court before which he is required by law to produce such person.
It has also been mentioned in the provision of Section 76 that in any case that such delay shall not exceed 24 hours. In the process of calculating the time period of 24 hours, the time necessary for the journey is to be excluded. The reason behind creating this right is to eliminate the possibility of police officials from extracting confessions or compelling a person to give information.
In case of failure of production of an arrested person before a magistrate within 24 hours of the arrest, the police officials shall be held guilty of wrongful detention.
Rights at Trial
Right to A Fair Trial
Right to equality has been granted under article 14 of the constitution. It has been provided under the Code of Criminal Procedure that for a trial to be fair, it must be an open court trial. In order to prevent secret designing and obtaining of convictions this provision has been designed. The trial can be held in camera as well in certain exceptional conditions.
Right to a speedy trial
Regardless of this right not being mentioned in the constitution, the SC in the Hussainara Khatoon case has made it mandatory that the investigation in the trial must be conducted “as expeditiously as possible.”
In cases, where the maximum punishment to be imposed is 2 years, once the accused is arrested, it is important that the investigation for the trial gets completed within the period of six months or is stopped after order from magistrate has been recieved, unless the Magistrate receives and accepts, with his reasons in writing, that there is cause to extend the investigation.
Right To Consult A Legal Practitioner
It is the right of every arrested person to consult a legal practitioner of his own choice. This has also been enshrined as a fundamental right in Article 22(1) of the Constitution of India, which is undeniable in all cases. Section 50(3) of the Code also states that the person against whom proceedings are initiated has a right to be defended by a pleader of his choice. This right begins as soon as the person is arrested.
Rights of Free Legal Aid :
The Supreme Court in the case of in Khatri(II) v. the State of Bihar held that the state is under a constitutional obligation as is implicit in article 21 of the constitution as well to provide free legal aid to an indigent accused person . It is important to note the fact that this right starts at the time of trial and continues till the accused is produced the first time before the magistrate and also when remanded from time to time. The Supreme Court has emphasised the importance of this right by stating that that failure on the part of the state to inform the accused of this right will vitiate the whole process of trial. Therefore, it is a binding duty imposed on all magistrates and courts to inform the indigent accused of his right to get free legal aid. The apex court has taken a step further in Suk Das v. Union Territory of Arunachal Pradesh, wherein it has laid down that this constitutional right cannot be denied if the accused failed to apply for it.
Right To Be Examined By A Medical Practitioner:
Section 54 of Cr.P.C. enumerates this right and it states that examination of arrested person by medical practitioner at the request of the arrested person. When an arrested person, whether on a charge or otherwise alleges at the time when he is produced before a Magistrate or at any time for which he is detained in custody that the examination of his body will afford evidence which will lead to disproving the commission of offence by him or which will establish the committing of offence by any other person against his body, the Magistrate shall, direct the examination of the body of such person by a registered medical practitioner. The Magistrate needs to rely on his better judgement to see that the request is not made for the purpose of vexation or delay or for defeating the ends of justice.
Frequently Asked Questions
1) Can a child be arrested?
Yes this is true that the police can arrest children in case they believe that the child has committed a crime. Normally, police stations will have a child welfare protection officer ( Section 107 of Juvenile Justice Act 2015) and it is mandatory that in each district and city, there will be at least one special juvenile police unit. Whenever the police arrests any child on suspicion of committing a crime, this should normally be done by a Special Juvenile Police Unit. However in case the regular police officer arrests the child, then the child should immediately be placed under the care of the Juvenile Police Unit, or designated Child Welfare Police officers.
The police has the power to arrest children who have run away from an institution where they were placed under the Juvenile Justice Act (Section 26 of Juvenile Justice Act 2015 ), such as an Observation Home (Section 47 of Juvenile Justice Act 2015) , Special Home or Place of Safety.
2) Can the police keep the arrested child in jail?
No, a child cannot be ever kept in a police lockup or regular jail. It is the duty of the police to bring you before the Juvenile Justice Bench within 24 hours (Section 10 of Juvenile Justice Act 2015). In case where the police does not release you immediately on bail, you can only be kept in an Observation Home (Section 12 of Juvenile Justice Act 2015) until you are taken to the Juvenile Justice Bench (within 24 hours). The police is itself responsible inform a child welfare officer who is supposed to accompany the child to the Juvenile Justice Bench for the first hearing.
In case of Deoki Nandan Dayma v. State of Uttar Pradesh it has been held by the court that the entry in the register of school mentioning the date of birth of student is admissible evidence with regard to determining the age of juvenile or to show that whether the accused is juvenile or child.
3) Are Children tried as Adults?
No. When the Juvenile Justice Board decides that a child should be tried as an adult after a Preliminary Assessment, it sends the case to a Children’s Court. The Children’s Court may be an existing Sessions Court that is dealing with child-specific laws, or a special court set up for the purpose of dealing with crimes under the Juvenile Justice Act.
Edited by Shuvneek Hayer
Approved & Published – Sakshi Raje
1) 1997 i0 SCC 525
6) AIR 1994 SC 1349
7) AIR 1997 SC 610
8) (1981) 1 SCC 627
9) (1995) 5 SCC 326)