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Arrest In Criminal Cases With Special Reference To Guidelines On Arrest Of Women And Judicial Officers

"Darkness of Cages shall allow you to Breathe, for Thou shall not be killed of Inhumanity!!"

Every person shall be treated as a human being irrespective of the fact that he is in jail until the accused is proved guilty by a court of law. Our law is quite strict about the personal liberty of an individual. The Indian Constitution under Article 21 states that, there will be no person who shall be deprived of his life or personal liberty except according to the procedure established by court of law.

The procedure laid down in Article 21 must be followed in right, just and fair manner and not in arbitrary, fanciful or oppressive manner. The rights of an arrested person are recognized as fundamental right under the constitution of India. And hence it can be stated that arrestee is provided with certain rights under the law.

The term arrest has not been defined in the Criminal Procedure Code of 1973. It basically means apprehension on a person by a legal authority and the result for which cause deprivation of liberty. As defined under Legal Dictionary by Farlex, "arrest means seizure or forcible restraint; an exercise of the power to deprive a person of his/her liberty; taking or keeping of a person in custody by legal authority in response to criminal charge."

In R.R. Chari v. State of U.P., the Apex Court explained arrest as an act of a person where he/she can be taken in custody on ground of criminal charge. In constitutional sense, it's basically the seizure of a person. Whereas in State of Punjab v. Ajaib Singh, it was observed by the court that arrest is putting restraint upon an abducted person. The result of which taking that person in legal custody on the ground of allegation or suspicion of commission of any criminal offence.

The Madras High Court in the case of Roshan Beevi v. Joint Secretary laid down the elements of arrest.

The elements required to constitute arrest are as follow:

  1. Intention to arrest must be under legal authority.
  2. Seizure and detention of the person is must.
  3. The arrestee must be in lawful custody of the person arresting him/her.
  4. There must be physical restraint and mere oral declaration is not arrest.

It is also quite important to understand about the circumstances under which a person can be arrested.

The circumstances are:
  1. for precautionary and preventive measures
  2. In order to secure attendance of accused at trial
  3. In order prevent obstruction caused to police
  4. In order to obtained correct name and address
  5. In order to take back the person in custody who has escaped.

After a brief discussion on meaning, elements and circumstances of arrest, the question arises that: Who may arrest? It is basically the magistrate who takes decision to arrest a person on ground of the information received from police or the complainant. Such decision of the magistrate needs to just, fair and reasonable with due regard to liberty of the individual and interest of the society.

It's the magistrate who decides to arrest and for the same arrest warrant (non-cognizable offence) needs to be issued. On the other hand we cannot deny the fact that it's not always possible for the police to approach the magistrate. For instance, a person has committed heinous crime of rape (cognizable offence) and it's suspected that the person may abscond unless arrested immediately.

In such case any person other than judicial officer may arrest but in such cases the code contemplates a judicial arrest soon after the arrest. The power to arrest granted to police and any private person must be exercised reasonably and not arbitrarily. The question as to who may arrest is clear now that arrest can be made by police or magistrate and even by any private person.

For this reason, arrest is mainly categorized under two heads in the Indian criminal law. The two types are: An arrest either made in accordance with the warrant issued by the magistrate or an arrest made without any warrant but in accordance with some legal procedures as prescribed in the law.

Section 41 of Code of Criminal Procedure speaks about situation when police may arrest without warrant. The very particular section states that any person who commits cognizable offence or any person against whom complaint has been made and reasonable suspicion exists that the person might has committed cognizable offence can be arrested without warrant.

Arrest can be made in order to prevent the further commission of crime, in order to do proper investigation, in order to prevent hampering of the evidence, in order to prevent inducement to witness and in order to present that person before court whenever required. The reason needs to be mentioned as to why police is arresting or not arresting the person.

The person will also be arrested if he is a proclaimed offender, on the ground of suspicion that is reasonable, if he obstructed police from investigating or tried and managed to escape, if he has been deserted from armed force (armed forces won't be arrested while discharging duty under the command of authority), also on the ground of extradition or when he escaped from the place of actual crime commission.

The section also makes it very clear that no person shall be arrested without warrant in the case of non-cognizable offence except the circumstances those mentioned in section 42 of Code of Criminal Procedure. It is well established that a person cannot be called upon by the police to speak against himself but under section 41A the police may call the person against whom information or suspicion has be made out and the person is duty bound to appear before police. If the fulfills all procedure then he won't be arrested unless there is valid reasons to do so and if he fails to comply the result shall be vice versa.

The procedure of arrest and duty of officer arresting is well stated in Section 41B. It states that clear identity of the arresting officer is required, proper memorandum of arrest shall be made and the accused has right to inform about his arrest to his near and dear.

Section 42 gives authority to a police officer to arrest a person for a non-cognizable offence. The person may be arrested when he has committed or has been accused of committing non-cognizable offence refuses to acknowledge his name, residence, etc. It's also stated that if person fulfills the requirement shall be release on bond with or without surety. If the procedure is incomplete after 24hrs the same shall be forwarded to Magistrate having jurisdiction.

Section 43 gives right to a private person to arrest person, who in the presence of him/her has committed an offence that falls within the purview of either cognizable or a non-bailable or who is proclaimed offender. The private person arresting is duty bound to take the arrestee to a police officer and in his absence to the nearest police station without unnecessary delay. On the other hand, Section 44 empowers magistrate (executive or judicial) to arrest an individual who has committed offence in his presence and during custody.

The landmark case of D.K. Basu v. State of West Bengal, the court issued eleven guidelines in addition to constitutional and statutory safeguards that must be followed in cases of arrest and detention.

It's mandatory that:
  1. Identification of arresting officer must be clearly visible and all details must be recorded in register,
  2. a memorandum must be prepared containing all the details which must be witnessed by near or dear of the detainee
  3. police must ensure that accused should avail right to be informed
  4. police need to inform him about legal aid organization within 8-12 hours of arrest
  5. the person arrested must be informed his right as an accused
  6. an entry must be made in the prescribed diary
  7. if the arrestee is injured he must be legally examined
  8. the medical examination should be done within 48 hours
  9. all details must be sent to magistrate in writing
  10. the arrestee must be allowed to meet attorney
  11. a room shall be provided to officers for communication.
The court held that state is vicariously liable and the act resulted in violation of fundamental right to life. In the case of Arnesh Kumar v. State of Bihar, Section 498A of IPC was questioned. The court came up with the view that in case of Section 498A no direct arrest will be made unless Section 42 of CrPC is satisfied. The arrest will be made on the ground of section 41(b) (ii) and all details must be forwarded to the magistrate. Magistrate while authorizing the detention shall pursue the report.

It was also laid down that failure to compliance with guidelines might lead to departmental actions and also charges of contempt of court might be put on. The guidelines were laid down to ensure that the rights of wife and husband go hand in hand and to ensure that 498A of IPC is not exercised arbitrarily.

In a very recent case of Ramadugu Omkar v. Sri Ashok Naik, petitioner filed against respondent for arresting him without any notice under section 41-A thereby violating the guidelines of Arnesh Kumar case. The Supreme Court held that in cases where arrest is not made under section 41(1), a notice must be issued in order to ensure that the accused to appear when needed. Thus, it would provide unnecessary arrest of any person.

Guidelines on arrest of woman: Section 46 lays down the procedure to make an arrest. According to Section 46(1) the person making an arrest shall not touch or confine the body of accused if he has surrendered on his own by way of words or action. The arresting authority will have right to touch and confine when the accused person has not surrendered. So, here we have three modes for arresting. The modes are submission of body, by touching or confining the body.

The proviso of the section states that woman accused will be arrested by a female authority. Under some circumstances male officer may also arrest but both the officers shall not touch or confine her body. The female officer is empowered to touch or confine if the accused fails to surrender. It is stated that no woman shall be subjected to arrest after sunset and before sunrise.

But CrPC under Section 46(4) has provided immunity to arresting authority that in exceptional circumstances a woman can be arrested after sunset and before sunrise by a woman officer. For the same it is mandatory on the part of female officer to make a written report and obtain the prior permission of Judicial Magistrate of that jurisdiction is required. According to the National Human Rights Commission, it is important that woman shall be arrested only be female officer as far as possible.

The Apex Court of India in the case of Sheela Barse v. State of Maharashtra laid down certain guidelines on the arrest of female accused. Firstly, it's the duty of police officer to check and make sure that arrested women are kept away from men in a female lockup. If there is no separate lockup than arrested woman will be kept in a different room in association with female officer. Secondly, the arrest of woman after sunrise and sunset must be avoided.

This was to ensure protection of woman against sexual and physical offences. Thirdly, the woman shall be questioned at her residence. It is duty to check that arrestee must not be embarrassed during question hour. Fourthly, the arrested woman could avail her right to be examined by medical practitioner only under female practitioner. The arrestee shall be given pre and post natal care. At last, arrest of pregnant woman must be avoided and other option should be opted if possible.

Labouring women must not be restrained. In the another landmark case of State of Maharashtra v Christian Community Welfare Council of India, wherein a lady went to inquire about the arrest of her husband was locked up and molested jointly. After investigation by CID officers and the police officers were found guilty.

The session court granted three years of punishment with fine but the Bombay High Court upheld the dignity of woman and ruled that no woman shall be detained or arrested without the presence of female officers and no case they shall be arrested after sunset and before sunrise. The Apex Court understood the motive behind the decision of Bombay High Court but it was in the opinion that the presence of female arrest is not possible in practical.

Hence, keeping in mind the object it was laid down that all possible ways shall be opted to avail female officer/constable for the arrest of female accused but under circumstances where it's not possible to avail in prompt than male officer will make the arrest to prevent difficulties in investigation. Section 46(4) clarifies the exceptional situation during the arrest of woman after sunset and before sunrise.

But the proviso remained mute in context to day time arrest. In the case of Bharati S. Khandar v. Maruti Govind Jadav, a lady petitioner was very well aware about Section 46(1) of the Code of Criminal Procedure and hence she refused to go with male police officer. But the lady was unaware of Section 46(4) and she got arrested and was also mistreated by the police officers. Here we see the importance of guidelines laid by the legislature in order to prevent police officers from violating law.

In a very recent case of Kavita Manikikar v. Central Bureau of Investigation BS & FC and Ors., wherein section 46(4) was violated and writ petition was filed by a lady before Bombay High Court. The petition was filed against CBI officers. The High Court came up with the favor of lady and held the CBI officers liable. A fine of Rs. 50,000 was imposed for non-compliance with the guidelines.

Guidelines on arrest of judicial officers:

Judiciary is considered as one of the pillars of democratic system. It is prestigious part where the hope of common man for justice lies. It also ensures that No man is above law. Hence, judicial officers are considered to be the window and it is very important to handle their cases with utmost case. The Supreme Court came up with the guidelines on arrest of judicial officers in a landmark case of Delhi Judicial Services Association v. State of Gujarat.

In this the CJM of Nadiad found that police officers were not cooperating on a particular case and he wrote a letter to DSP and DGP against police officers. In return to this police officer complained against CJM, where was called to check the documents. The CJM was forcibly made to drink, was assaulted and arrested by Police Inspector. The matter went to the Apex Court, wherein the court stated that arrest of judicial officer was violative of Article 136 of Indian Constitution.

Hence, certain guidelines were laid down. Firstly, prior to the arrest of judicial officer an intimation District judge or High Court must be done. Secondly, in case of prompt arrest under certain fact and circumstances, formal arrest can be made. Thirdly, communication shall be made to District and Session Judge of that district and to the Chief Justice about the fact of arrest. Fourthly, in order to take the arrested judicial officer prior permission of District and Session Judge of that district is required.

Fifthly, all the rights of an accused person shall be provided immediately. Sixthly, recording of statement and medical test should be done only in presence of legal advisor or any judicial officer of higher or equal rank. Lastly, unless the circumstances compels judicial officers won't be handcuffed. If handcuffed, police is duty bound to give valid reasons and immediate report will be made to judges mentioned above. In case the act of police is held to be unjustified then police officer will be made guilty of misconduct and will subject to compensation.

In landmark case, Anwor Hussain v. Ajoy Kumar Mukerjee, wherein the appellant was SDO and he also held post of SDM. He was arrested respondent in riots, but no charge was put on him. The respondent filed a suit against SDO and police claiming compensation for imprisonment which was false. It was held that SDO acted under his capacity. The court also held that no inquiry will be made even if act was erroneous, illegal or irregular which was done within the jurisdiction.

The accused in India are empowered certain different rights. The most basic of those rights are found in Indian Constitution. Article 21 of the Indian Constitution gives rays of hope to person arrested, person under trial and also to convicted person. Law ensures that the treatment of such people should be humane and according to the laws prescribed. Hence, the accused has been provided with certain rights and they are well discussed.
  1. Right to be informed about the ground of arrest:

    In every case either the accused has been arrested with or without warrant, it's the duty of person arresting to communicate him/her the grounds of arrest without any delay. This is an important right of arrested person and the same is recognized as one of the fundamental right under the Indian Constitution.

    The right can be of great importance for the arrested person. Once the person knows about the grounds of arrest it becomes easy to apply for bail or a writ of habeas corpus or to take appropriate measures for his defence. The applicable sections are Section 50(1), 55, 75 of CrPC and Article 22(1) of the Indian Constitution. The same could be found in decision of cases such as Joginder Kumar v. State of U.P. and D.K. Basu v. State of West Bengal, where under Section 50A it was made obligatory on the part of police to inform about the ground of arrest.

  2. Right to silence:

    If the arrested person remains silent during interrogation, it does not mean that he is guilty. He cannot be forced to speak forcibly as it is the violation of principle of Natural Justice. In the case of Nandini Sathpathy v. P.L. Dani, it was clearly mentioned that no can forcibly get the statement from the arrested person because he has right to remain silent as per choice. The same could also be found under Article 20(3) of India Constitution.

  3. Right to be informed about bail and right to get released on bail:

    The police arresting a person is bound to inform him about the right of bail and that he may arrange for sureties on his behalf. This is not applicable in the cases of non-bailable offence. The same could be found in Section 50(2), 436 and 437 of CrPC.

  4. Right to be taken before magistrate:

    The police officer is duty bound to take the accused person before Magistrate without any unnecessary delay. It is applicable both to arrest with or without warrant. The same could be found in Section 56 and 76 of CrPC.

  5. Rights in regard to detention:

    The police officer arresting the person is duty bound to produce the person arrested before Magistrate within 24 hours excluding the time of travel. If not produced within 24 hours then the detention will be illegal. This right has been given to the arrestee so that he cannot be compelled to give information, to protect him from the arbitrary use power by the police authority and also to enable arrestee early recourse with judicial officer. The court in the case of Mohammad Suleman v. King Emperor held that arrest commences with restraint of personal liberty of the accused and not with the time of arrest being recorded. The same could be found in Section 56, 76 of CrPC and Article 22(2) of the Indian Constitution.

  6. Right to fair and just trial:

    The constitution upholds about free and fair trial. The same can be seen in the procedural law. It's necessary to protect the arrested person from arbitrary use of power and is also based on the principle of natural justice. The Indian Constitution ensures that every individual must be treated equally and right to life includes fair trial. In the case of Huissainara Khatoon v. Home Secretary, State of Bihar, the court observed that the trial must be disposed of as soon as possible. The right to speedy trial was upheld.

  7. Right to consult a legal practitioner:

    The right to consult a legal practitioner has been declared as constitutional right by the Supreme Court. The same could be found in Article 21 and 22(1) of the constitution and Section 41(D) A, 50(3) and 303 of CrPC.

  8. Right to free legal aid and to be informed:

    This facility is provided to all poor accused in India, inspite of the severity of the crime committed. The Supreme Court in the case of Khatri v. State of Bihar held that the state is under a constitutional mandate to provide free legal aid and the same is mentioned explicitly in Article 21. It was laid down that legal aid does not arise only when the trial commences but also when the accused is about to be produced before Magistrate. It is an obligation on the Magistrates and courts to inform about free legal aid. The same could be found in Section 304 of CrPC and Articles 21, 39(A) of Indian Constitution.

  9. Right to be examined by medical practitioner:

    Every person who is arrested has right to be examined by a medical practitioner of either state or central government. This provision was added with the view to ensure if any torture was made investigation or during custody. In case of Sheela Barse v. State of Maharashtra, the court held that Magistrate is to inform the arrested person about his right to be examined by medical practitioner. The same could be found in Sections 53 and 54 of the CrPC.

At the concluding remarks it is quite important to state that India faces a huge problem of custodial deaths and the reason behind the same is illegal arrests. This rising problem determines the essence of Article 21 enshrined in the Indian Constitution and also the fundamental rights available to each and every individual under Universal Declaration of Human Rights.

In the landmark case of D.K. Basu v. State of West Bengal several guidelines has been laid down as stated above but the same is not executed properly.

The foremost duty of any police officer is to protect the rights of every individual in the society including the arrested person. The police officers should work according to the Procedure established by Law and should act arbitrarily.

The arbitrary use of powers often leads to violation of the 'Principle of Natural Justice'. The police officers must ensure that they should convey about the rights granted to accused person under Indian Judicial system. Arrest has demoralizing effect on personality of a person. The hour demands proper balance between security of the state as well as freedom of the individual.

As a law student we have clear cut understanding of the provisions. We could take responsibility to inform at least to our near and dear ones. This small step can contribute lot to the society. Spreading awareness would enable people to know about the existing rights.

  1. The Indian Constitution, 1950
  2. AIR 1951 SC 207
  3. AIR 1953 SC 254
  4. 1984 Cri LJ 134 (Mad.) (FB)
  5. R.V. Kelkar and K.N. Chandrasekharan Pillai, Lectures on Criminal Procedure 24 (Eastern Book Company
  6. Binoy Jacob v. CBI, 1993 Cri LJ 1293 (Del.)
  7. (1997) 1 SCC 416
  8. (2014) 8 SCC 273
  9. (1983) 2 SCC 96
  10. 1995 Cri LJ 4223 (Bom)
  11. 1995 Cri LJ 4223 (Bom)
  12. AIR 2013 (1) ABR 694
  13. AIR 1018 MH 114
  14. (1991) 4 SCC 406
  15. Article 136 of the Indian Constitution, 1950 deals with special leave to appeal by the Supreme Court.
  16. AIR 1965 SC 165
  17. Habeas Corpus is a writ under article 32 which basically means to have the body.
  18. (1994) 4 SCC 260
  19. (1978) 2 SCC 424
  20. Article 20(3) states that no person shall be a witness against himself.
  21. (1925-26) 30CWN 985 (FB)
  22. Article14 talks about equality before law.
  23. Article 21 talks about fair trial.
  24. (1980) 1 SCC 81
  25. (1981) 1 SCC 627
  26. Article 39 A talks about free legal aid to the poor and weaker sections of the society.

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