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Published : April 28, 2010 | Author : adikool2006
Category : Criminal law | Total Views : 13729 | Rating :

Adhideb Bhattacharya VI Sem, BALLB(Hons) UPES, D.Dun

By nature human beings are social animals. Without society and company of fellow beings they cannot live. As for maintenance and survival of a healthy society discipline and order must be maintained some principles and rules have to be followed by all the members of the society. The rules which are thus recognised and have the sanction of the state can be called laws. The acts in violation of any of such rules of laws may be called crimes. The state mainly performs the task of implementing laws and preventing their violations through the agency of police. The institution of police is a machinery of state for implementing laws, maintaining peace and order in the society by ensuring justice for its each and every member by preventing crimes or acts or omission in violation of law. For this sometimes it has to nab and detain suspicious and anti-social elements. To bring an accused to book with enough evidence is a duty of police. Here comes the mast bitter and unwanted term ‘ARREST. There are many kinds of arrest in legal terminology. But in the popular sense, a detention or restriction of movements of a person by authority acting with the authority given by law can be called a legal arrest. Here police is the authority to do so in certain circumstances. Those circumstances have been defined by law clearly. Actually a human being can not be arrested as he or she is born free and has his or her birth-right of freedom and more definitely the right to freedom of movement. This right is a natural right and a basic human right which cannot be curtailed or infringed. When a human being ceases to be a human and his being is possessed by animalist elements he loses his all such rights which are called human rights. Restriction of a person also becomes necessary when his freedom may cause infringement of others freedom. In this way sometimes arrest of a person becomes inevitable. However, arrest is a necessary evil. So when an arrest have to be made it should be made in strict accordance with the law, at least the Constitution of India says so. In the context of India it has to be said that the state of affairs is very sorrowful. The Indian police work still under the colonial Police Act of 1861. With this weapon of mass destruction in its hand the Police strides in a society which is in the extreme verge of explosion as it has been overflowing with corruption and erosion. The transparency International places Police in the first position in the list of bribe-takers in India.

The Constitution of India guarantees the citizen's fundamental rights to participate in the political life of the country and to express themselves as political beings. But the freedom is hedged in by many legal restrictions by the politicians. Even legitimate activities of citizens may be considered as infringement of the law. The general ignorance of our legal rights is being exploited by law enforcing agents of the State and consequently violation of human rights is increasing day by day at an alarming proportion. The objective of this article on Arrest and Bail is to raise the legal consciousness of the citizens with regard to their rights when confronted by the police and agents of the judiciary.

A person is arrested when a police officer or a citizen takes him into custody or otherwise substantially deprives him of his freedom of action so that he may be held to answer for a crime or an offence. The police in India do not have any power to detain anybody for questioning unless he is arrested with or without warrant.

Warrant of Arrest
It is a written order issued by a Court to a police officer to arrest and produce an offender or to search his premises for a particular thing. A police officer who executes the warrant shall notify the substance thereof to the person to be arrested and if he demands, shall show him the warrant. He is expected to bring the required person before the Court without unnecessary delay.

Valid Warrant
A warrant of arrest should be (i) in writing (ii) signed by the presiding officer of the Court and (iii) should bear the seal of the Court. It should also contain the name of the accused, his address and indicate the offence with which he is charged. If any of these factors is absent, the warrant is not in order and an arrest made in execution of such a warrant is illegal. Warrants are of two kinds:

i) Bailable
ii) Non-Bailable

A bailable warrant is a Court's order which contains a direction that if the person arrested executes a bail with sufficient sureties for his attendance before the Court, he may be released from custody. In that case it shall further state the number of sureties, the amount of the bond, and the time for attending the Court. (Section 71 Cr.P.C.)

In case of a non-bailable warrant the direction for bail will not be endorsed on the warrant.

Arrest without Warrant
A police officer has power to arrest a person without warrant if he is suspected of having committed a cognizable offence. Normally in non-cognizable offences a police officer cannot arrest a person without a warrant from a Magistrate.

In the first Schedule of the Criminal Procedure Code (Cr.P.C.) offences have been classified and enumerated as cognizable and non-cognizable. The more serious offences such as murder, rape, robbery, theft, and waging war against the State etc. are cognizable.

A person can be arrested without a warrant if the following condition are satisfied:
1. If he is concerned in a cognizable offence or if there is a reasonable suspicion, complaint or information that he has committed a cognizable offence;

2. If he possesses implements of house breaking;

3. If he possess stolen property;

4. If he is proclaimed an offender;

5. It he obstructs a police officer on duty'

6. If he escapes from a legal custody;

7. It he is a deserter from the army, navy or air force;

8. Where he is out of India, if he commits an offence punishable under any extradition law or under the Fugitive Offenders Act;

9. If he is released convict who breaks the restrictions imposed by the Court on his movements;

10. If he is suspected of preparing to commit a cognizable offence;

11. If he is habitual criminal;

12. If he, after committing a non-cognizable offence in the presence of a police officer, refuses to give the police his name and address or has given him a false name and address;

13. If he is required by a police officer of another police station who suspects that he has committed a cognizable offence;

How is Arrest made?
Arrest is complete when there is submission to custody by word or action, and in such a case touching or confining of the body of the person arrested is not necessary, but mere surrounding of a person by the police does not amount to arrest. (Section 46).

If someone forcibly resists arrest, the police officer can use all means necessary to effect the arrest. (Sec. 46). He can even cause your death provided you are charged with an offence punishable with death or lifetime imprisonment. However, he is not justified in using force more than necessary to obtain the arrest (Sec.46). Therefore, unnecessary restraints or causing physical inconveniences tying of hands and feet are not permissible if there is no necessity for doing so.

Guidelines For Police Officers In India On Making Arrests
One of the most important powers, possessed by the police under law, and exercised by it on a day to day basis, is the power of arrest. The exercise of this power involves discretion, which makes it liable to misuse. In fact, it is known to be often misused.

The National Police Commission [NPC] examined this subject in its Third Report (January, 1980) and came to the following conclusions:
A large number of discretionary and unnecessary arrests are made by the police, mainly on minor grounds.
This gives rise to corruption, highhandedness and other malpractices, thereby adversely affecting police image.
It also leads to overcrowding in prisons, and unnecessary expenditure on maintaining arrested persons.
Because the exercise of arrest powers can seriously restrict individual rights, a number of guidelines have been issued in respect of arrest. These guidelines have a direct bearing on the image of the police in the community; they also enable police officers to use their powers judiciously, in a manner that safeguards human rights, without diluting effectiveness to curb crime or maintain order.

The guidelines listed below have been prepared with this objective in view.

The Criminal Procedure Code, allows a police officer to arrest a person if s/he:[1]

i. is involved in a cognizable offence: a reasonable complaint has been made against her/him; or credible information has been received about her/him; or a reasonable suspicion exists regarding her/his involvement in a cognizable offence;

ii. unlawfully keeps implements of housebreaking in her/his possession;

iii. is a proclaimed offender;

iv. is found to be in possession of property which may reasonably be suspected to be stolen; or is suspected of having committed an offence in relation to stolen property;

v. obstructs a police officer from lawfully discharging her/his duties or escapes or attempts to escape from lawful custody;

vi. is suspected to be a deserter from the Armed Forces;

vii. commits or is suspected of committing an offence outside India, which is punishable in India and for which s/he can be detained in custody[2];

viii. being a released convict, commits a breach of any rule made by the State Government under Section 356 Code of Criminal Procedure, 1973 requiring a previously convicted offender to notify her/his change of residence;

ix. requires to be arrested on the request of another police officer and sufficient grounds for arrest have been shown by the police officer requesting the arrest;

x. belongs to one or more categories of persons specified in Sections 109[3] or 110[4] of the Code of Criminal Procedure, 1973.

A police officer can arrest a person who commits or is accused of committing a non-cognizable offence in her/his presence and refuses to give her/his name and address or gives a name and address that appears to be false.[5]A police officer can arrest a person without warrant, if it appears that the person is making a design to commit a cognizable offence.[6]

Guidelines to be followed before Arrest
An arrest should be made only after a reasonable satisfaction is reached about the complaint being genuine and bonafide. This satisfaction must be reached on the basis of some preliminary investigation. The officer making the arrest must be convinced about the person is involvement in the offence and the need to make an arrest.[7]Arrests are not to be made in a routine manner on mere allegations that a person has committed an offence. Arrest should be avoided if notice can be given to the suspected person to come to the police station and not leave the area without permission.[8]Arrests in cognizable cases should be carried out only if[9]:

The case involves grave offences like murder, dacoity, robbery, rape etc. and it is necessary to restrain the movements of the accused person to infuse confidence among terror stricken victims.
The accused is likely to abscond or evade the processes of law.
The accused is prone to violent behaviour and is likely to commit further offences unless her/his movements are restrained.
The accused is a habitual offender and it is likely that s/he will commit further offences.

When a Station House Officer (SHO) deputes a junior officer to arrest a person without a warrant, the SHO must give a written order specifying the person to be arrested and the grounds of such arrest. The deputed officer has to notify y the substance of the order to the person being arrested and if the person wants to see the order, even show her/him the order of arrest.[10]A police officer can break open the door / window of a house to arrest a person if s/he is denied free access. However, due notification of such intention should be given, especially when entering a house resided by a woman who does not appear in public. The police officer should also give such woman every reasonable facility to withdraw, except when the lady herself is to be arrested.[11]An arrested person must be produced before the court within twenty-four hours of arrest. The police should produce the arrested person before the court within twenty-four hours after arrest, excluding journey time[12]. But, the time spent on making inquiries while taking the arrested person to the court is not excluded from the 24-hour period.[13]Reasons for arrest and complete description of the arrested person must be recorded in the case diary.[14]In case a person is arrested for a bailable offence s/he must be informed about her/his right to get bail.[15]Fetters or handcuffs are not be used as a matter of routine or for convenience of the arresting or escorting officer[16]. The police should not handcuff a person merely to humiliate or harass her/him. The arrested person should not be handcuffed unless there is a clear and present danger of her/him escaping and s/he is:[17]a) involved in serious non-bailable offences and has been previously convicted of a crime; or

b) is of desperate character; or
c) is likely to commit suicide; or
d) is likely to attempt escape.

While a police officer can get an arrested person medically examined by a registered medical practitioner to get evidence about the commission of an offence, s/he must ensure that examination of women and girls should only be carried out by a woman medical practitioner.[18]The substance of the medical examination report should be entered in the police station diary. All major and minor injuries on the arrested person should be recorded in a memo. Suitable arrangements must also be made for the treatment of any illness or injury.[19]

Guidelines on Arrest of Women
o As far as practicable women police officers should be associated where females are being arrested. Arrest of women between sunset or sunrise should be avoided.[20]

o Women and girls should not be called to the police station or to any place other than their place of residence for questioning[21]. The time selected for questioning should not be intended to harass or embarrass the person being questioned.

o It is the duty of the police officer making arrest to see that arrested females are segregated from men and kept in female lock-up in the police station[22]. In case there is no separate lockup, women should be kept in a separate room.

o Girls and women should be guarded by female constables/police officers. They must be questioned in the presence of policewomen[23]. Body searches of females should only be carried out by women and with strict regard to decency[24]. As far as possible, one of the two or more witnesses to the search must be women.

o Medical examination of women/girls should be carried only under the supervision of female medical practitioners[25]
o All necessary pre-natal and post-natal care should be provided to females who are arrested. Restraints should only be used on pregnant women as a last resort. Their safety or the safety of their foetus should never be put at risk. Women must never be restrained during labour.[26]

Guidelines on Arrest of Judicial officers[27]
i. The police should inform the District and Sessions Judge/High Court before arresting a judicial officer.

ii. If facts and circumstances necessitate immediate arrest of a judicial officer, the police should only carry out a technical or formal arrest.

iii. Information about the arrest should be immediately communicated to the District and Sessions Judge and to the Chief Justice of the High Court. It should also be recorded in the police station diary.

v. The judicial officer must be immediately allowed to communicate with her/his family members, legal advisers and fellow judicial officers, including the District and Sessions Judge.

vi. No statement of a judicial officer under arrest should be recorded. The panchnama and medical tests should not be conducted except in the presence of the Legal Adviser of the judicial officer concerned or another judicial officer of equal or higher rank if available.

vii. The police must not handcuff a judicial officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be overpowered and handcuffed. In such a case, immediate report should be made to the District and Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden would be on the police to establish the necessity of effecting physical arrest and handcuffing the judicial officer. If it is established that the physical arrest and handcuffing of the judicial officer was unjustified, the police officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily determined by the High Court

.Guidelines on the Arrest of a Member of Parliament / Legislative Assembly
The Speaker of the House must be informed if an M.P/MLA/MLC is arrested on a criminal charge or detained under an executive order of a magistrate.[28]As soon as any arrest, detention, conviction is made, intimation should be sent to the concerned government and to the Speaker/ Chairperson of the Lok Sabha/ Rajya Sabha/Vidhan Parishad. This should be sent through telegrams and also by post. A detailed entry in this regard should be made in the police station diary.[29]
Any transfer from the place of custody should be notified to the Speaker/Chairperson of the house of which the arrested person is a member. The police should not arrest any member of legislature, nor should they serve any legal process, civil or criminal, within the precincts of the legislature without obtaining the permission of the Speaker/Chairperson.

Guidelines on Arrest of Children:
Children should not be arrested except as a last resort. If for some reason they are arrested, the detention must be for the shortest possible time.
Force should never be used while arresting children or juveniles. Police officers should take the help of respectable citizens to ensure children and juveniles are not terrorised, and the need to use coercive force does not arise.[30]As soon as a juvenile is arrested by the police, s/he is to be placed in the charge of a special juvenile police unit or a designated officer who must immediately report the matter to a member of the Juvenile Justice Board.[31]Parents or guardians must be informed immediately on the arrest of children or juveniles.[32]

To conclude the rights of arrested persons are increasingly being guaranteed on paper and less in reality. Yet there is good amount of public awareness in this regard which is facilitating various human rights agencies and non profit organizations like the NHRC to ensure compliance with procedure. However as compared to international standards of implementation and guarantee of newer any more comprehensive rights, much remains to be done. Some suggestions for reform may be made in the nature of the following:

o There needs to be a strict regime of education and monitoring of police officials especially at lower levels In remote areas. Today most of the violations occur as much out of ignorance. Separate body should be set up solely for the purpose of initiating departmental enquiries and vigilance in this regard.

o Civil society should bear a greater responsibility and be vigilant about any Instances of violation of human rights in this area and report the same to the nearest judicial officer.

o The burden of proof should be shifted on the police to show before the Magistrate 24 hours after arrest that he injury marks were not due to their manhandling. This and constitutionalisation of rights like examination of the arrested would be a deterrent to police brutality.

Therefore, to strike a balance between individual liberty and community interest is never easy or without their own problems. But to strengthen the foundations of our democracy and to make true the spirit of our Constitution the two opposing considerations need to be balanced on the fine scale of justice, equity and good conscience.
[1] Section 41 Code of Criminal Procedure, 1973.
[2] Under an extradition treaty or any other law
[3] Persons taking precautions to conceal their presence with a view to committing a cognizable offence.
[4] Habitual offenders, desperate or dangerous persons
[5] S. 42 Code of Criminal Procedure, 1973.
[6] S. 151 Code of Criminal Procedure, 1973.
[7] Joginder Kumar v State of U.P and others, 1994 (4) SCC 260
[8] Ibid
[9] National Police Commission: Third Report (1979-81), P. 32, Para- 15.48.
[10] S. 55 Code of Criminal Procedure, 1973.
[11] S.47 Code of Criminal Procedure, 1973
[12] S. 56 and 57 Code of Criminal Procedure, 1973.
[13] S. 56 of Criminal Procedure Code, 1973.
[14] National Police Commission: Third Report 1980, P.32, Para-22.28
[15] S.50(2) Code of Criminal Procedure, 1973
[16] Sunil Batra v Delhi Administration (1978) 4 SCC 494
[17] Prem Shankar Shukla v Delhi Administration (1980) Cri LJ 930
[18] S. 53 Code of Criminal Procedure, 1973
[19] D. K. Basu v State of West Bengal AIR 1997 SC 610
[20] National Human Rights Commission guidelines on arrest
[21] S. 160(1) Code of Criminal Procedure, 1973
[22] Sheela Barse v State of Maharastra, 1983 2 SCC 96
[23] Sheela Barse v State of Maharastra, 1983 2 SCC 96
[24] S. 51(2) & S. 100(3) of Code of Criminal Procedure, 1973
[25] S. 53(2) of Code of Criminal Procedure, 1973.
[26] 10 Basic Standards for Law Enforcement Officialsî Proposed by Amnesty International. ( http://www.amnesty.org/torture/resource/10HRSofficials.html)
[27] These guidelines were laid down by the Supreme Court of India in its judgement in a Writ Petition (Criminal) no. 517,518and 523-27 of 1989- Delhi Judicial Service Association, Tis Hazari Court, Delhi v State of Gujarat and others.
[28] Rule 229 of the Procedure and Conduct of Business in Lok Sabha
[29] Ibid.
[30] National Human Rights Commission guidelines on arrest
[31] S 10, Juvenile Justice Act, 2000
[32] S 13, Juvenile Justice Act, 2000

Authors contact info - articles The  author can be reached at: adhideb.law@legalserviceindia.com

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