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A Deviance from Stated Procedures: Illegal Arrest Incidents in India

This research paper studies the concept of illegal arrests in India and the procedures established to arrest a person. It is a known fact that it is the duty of the judicial administration to ensure security to the basic human rights and to upheld those rights. However, the cases of illegal arrests have increased in past few years. This is mainly due to the vast discretionary powers exercised by the police officers and the misuse of those powers by them.

According to a report issued by National Police Commission of India, around 60% of the arrests made by the police are unnecessary and unjustified. Moreover, there have been circumstances where it is clearly seen that the police had not complied to stated procedures provided by the Code of Criminal Procedure, 1973 along with the Constitution of India. The Supreme Court in several cases have pointed out this deviance.

This research paper also studies the difference between illegal arrests and false arrest stating the situations that led to the occurrence of illegal arrests in India. Furthermore, the research paper also entails about the right and lawful procedures of arresting a person and the rights of that person as stated by the law. In addition to this, the research paper also describes which rights of the person are getting violated and credible judgements to support the violation of a basic human right.

The research paper explicitly explores moral as well as legal consequences of the unjust actions of the police and analyses it from the viewpoint of the victim. The research paper considers the opinions of legal professionals and makes recommendations and suggestions to reduce cases of illegal arrests in India.

Objectives Of The Study
The aim of the following study is to:
  • Understand the graveness of Illegal Arrests
  • Understand the right and lawful procedure under CrPC.
  • Study the need of a reformation of current laws to minimise illegal arrests.

Research Methodology
Doctrine methodology is adopted for this project research. It involves the use of secondary data which is collected from various articles, websites, books etc. Doctrinal research asks what is law on a particular issue. It is concerned with analysis of the doctrine and how it has been applied and developed. This type of research is known as �pure theoretical research.� It consists of, either simple research directed at finding a particular statement of law or, more complex and in-depth analysis of legal reasoning.

Meaning of Arrest

The word �arrest� is not specifically defined in the Code of Criminal Procedure of 1973. However, the procedure of arresting a person is clearly defined in section 46 of the Code of Criminal Procedure of 1973. In terms of a legal dictionary, the word arrest conveys the meaning, �to deprive one�s liberty by virtue of legal authority�.

The word arrest can also be interpreted as �to stop� or �to seize�[1]. Thus, it can be said that �an arrest is a seizure or forcible restraint or an exercise of a power by a legal authority, to deprive a person of his/her liberty, in response to a criminal charge.�

An Illegal Arrest is different from False Arrest

As the name itself connotes, an arrest which is not made in accordance to the procedures established by law, is illegal. Thus, it can be said that absence of a probable cause and non-abiding of the stated procedure, are two main essentials necessary to indicate the case of illegal arrest.

However, false arrest consists of an unlawful restraint of an individual�s personal liberty or freedom of movement by another purporting to act according to the law.

Illegal arrest falls under the category of criminal wrongs while, false arrest falls under civil wrongs or torts. An action can be instituted for false arrest to acquire damages. However, in the case of illegal arrest, compensatory damages will be awarded only on proof of illegality of arrest. Therefore, to conclude, there is a thin line of difference between the two kinds of arrest, which is essential in identifying the appropriate laws.

Causes of Illegal Arrests in India

A lot of factors like corruption, political influence, illiteracy etc., contribute in increasing cases of illegal arrests in India. Furthermore, having little knowledge or no knowledge of one�s own rights also contributes in spreading of its instances. Other than social factors, factors like mistaken identity, false confessions, perjury, backlog of cases and false forensic evidences are also responsible for illegal arrests in not only India but worldwide. Absence of stringent laws can be said to be a major contributor.

A Deviance from Stated Procedure

Illegal arrests are rampant and they indicate a high deviation from the procedure stated under Code of Criminal Procedure of 1973. To understand what exactly is a legitimate arrest, it is crucial to know the rights provided under CrPC. Section 41 of CrPC states when a police officer can arrest without warrant.

Under this section 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. 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. 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. 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.

Based on decisions of Supreme Court in Joginder Kumar v. State of UP, (1994) and D.K. Basu v. State of West Bengal, (1997) 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.

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. Section 51 of CrPC allows a police officer to make personal search of arrested persons.

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 the arrestee.

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.

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[2].

Illegal Arrests: In complete violation of Articles 21 and 22

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, (1978), 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.

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 contains provisions relating to arrest of persons, restrains and judicial supervision & scrutiny.

In Nilabati Behera v. State of Orissa and Others, (1993), 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, 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, 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 were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails[3].

In Byrne Vs Ireland, (1972), it was observed by the judge that, �in several parts in the constitution duties to make certain provisions for the benefit of the citizens are imposed on the State in terms which bestow rights upon the citizen and, unless some contrary provision appears in the Constitution, the Constitution must be deemed to have created a remedy for the enforcement of these rights. It follows that, where the right is one guaranteed by the State, it is against the State that the remedy must be sought if there has been a failure to discharge the constitutional obligation imposed.'

In Lucknow Development Authority Vs M.K. Gupta (1994), it was held that:
when public servant by mala fide, oppressive and capricious acts in performance of official duty causes, injustice, harassment and agony to common man and renders the State or its instrumentality liable to pay damages to the person aggrieved from public fund, State or its instrumentality is duty bound to later recover the amount of compensation so paid from the public servant concerned.

Reformation of existing laws: A necessity

India�s criminal justice system abounds with circumstances that can wrongfully deprive citizens of their right to liberty. The misconduct of investigative agencies, poor investigative skills, political pressure and criminal prejudice towards certain sections of the citizenry, an enormous backlog in the judiciary, as well as a highly stratified access to justice, are just a few instances.

The Law Commission of India points out that the criteria for compensation should be wrongful prosecution as opposed to wrongful incarceration or wrongful conviction. Both wrongful incarceration and conviction can be either too narrow or too wide a criterion given the fact that acquittals often take place on pure procedural grounds, or because of the benefit of doubt, or because of commonplace judicial delays.

For wrongful prosecution, the commission points out two key criteria � malicious prosecution and absence of good faith.

The Law Commission of India has come up with an ingenious criterion to close the vast gap between the impossibly high standards of proof required to prove malicious prosecution and the vastly loose category of all acquittals. Picking up from the criminal justice system�s own concept of �good faith� that protects the duty bearers of the State � the absence of a wrong intention even if the resultant acts were wrong � the Law Commission of India turns it around into a ground for compensation.

The category works very well. For, in the vast majority of cases of wrongful prosecution where people have spent between eight and 18 years in prison without doing anything wrong, what can at best be proved in a court of law is carelessness, oversight and a lack of action on the part of duty bearers when it was due. In such cases of serious miscarriage of justice, a glaring combination of such oversights and inaction is visible. This establishes a veil that hides malicious intent, making it impossible to prove in a court of law. The commission, very ably, constitutes such an absence of good faith, a requirement on the part of the State while prosecuting citizens, as requiring remedial compensation by the State.

This category also detaches the act of an aggrieved citizen asking for a remedy from the necessity of attributing blame on somebody by bringing into its fold genuine cases of oversight, where no one person or agency is responsible, and yet wrong has still been done. While becoming a party to the International Covenant on Civil and Political Rights in 1996, India put a reservation to Article 14 (6), which mandates a legal framework for compensation and rehabilitation.

However, the Supreme Court has periodically awarded such compensation, thus rejecting the reservation. The latest case is that of Indian Space Research Organisation scientist Nambi Narayanan, who was granted Rs 50 lakh by the apex court last week, after fighting a battle to prove his innocence for 24 years.

The cases are increasing at a rapid rate and the most important thing that can be done is making everyone aware of their rights under the law and rights as provided by the Constitution of India. Furthermore, media censorship is essential since, the current trend is subjecting the arrested to a media trial even when there is no substantial evidence or a formal declaration from the judiciary. The person so arrested must be given the chance to prove his/her innocence and must be given the opportunity to communicate with the other concerned party.

The Criminal administration must take steps to make more strict laws or make certain changes in the laws in force and to provide remedies to victims of illegal arrests. Furthermore, the doctrine of speedy trial must be put in practice and there should be less adjournments of cases. The existing punishments are in dire need to be enhanced. Moreover, such increasing incidents demand more firm punishments to be introduced that cover all the aspects of the crime and all the offenders, irrespective of their profession or material status.

It is important to understand that when wrongfully prosecuted, a citizen loses life; the opportunities and pursuits that create, mental and physical health, dignity and social standing; not just of herself but also of her family. Such loss, if at all can be monetised, can be done in an exemplary fashion. Exemplary damages, compensation over and above the actual loss suffered by the plaintiff � need to be coupled with real costs of fighting the legal battle in India, where justice is often a beast that needs the right intersection of caste, class, power and cash for it to be drawn out of its cavernous corners.

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