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An Analysis of the Consequences of Non-adherence of Procedure of Arrest

An Introduction to Arrest
This essay examines the ramifications of failing to follow the arrest procedure. When we hear the word 'arrest,' our hearts still stop beating, our lungs stop breathing, and our bodies begin to tremble. Even today, in many parts of society, an arrest is regarded as 'conviction' or proof of a crime.

However, this article does not imply or criticise any of these opinions or beliefs; rather, it aims to explain the legal meaning of the term "arrest," the procedures that should be followed during an arrest, and, more importantly, the repercussions that may arise if the procedures are not followed.

Arrest Procedures

Regardless of whether an arrest is undertaken without or with a warrant, it is required that "the police officer or any other authorised person arresting touches or confines the body of such person who is to be detained, unless the person gives himself willfully either by words or deed."[4].

The Madras High Court decided in Roshan Beevi v. Joint Secy., Government of Tamil Nadu[5] that "an oral declaration of arrest without physical contact or submitting to custody will not constitute to arrest."

Every police officer who makes an arrest is required by Section 41B of the Criminal Procedure Code to "carry an accurate, visible, and clear identification of his name in order to assist easy identification." Additionally, the police officer must "create a memorandum to record the arrest," which must be signed by a family member or any other independent person who is a respectable member of society.

If the arrestee's family members are not present at the time of the arrest, the arrestee must be informed of his right to inform one family member or friend about his arrest in order to successfully obtain bail or bond.

In two historic and classic decisions, Joginder Singh v. the State of U.P.[6] and D.K. Basu v. the State of West Bengal[7], the top court has given down extensive instructions with respect to the arrest procedure.

The following are some of the crucial procedures to be followed:

  1. The police must "enter the time and place of arrest in the police notebook, as well as who has been informed of the arrest" in the police diary.
  2. During his imprisonment, the arrestee must be "subjected to medical examination" by trained doctors "every 48 hours."
  3. During interrogation, the arrestee may be "permitted to meet his lawyer."
  4. All district and state police control rooms must be notified about the arrest in order for the arrestee's relatives to find him or her easily.

The above-mentioned arrest procedure was devised in light of the fact that arrest is a practical infringement of a person's right to liberty under Articles 19 and 21 of the Indian Constitution. As a result, the power to arrest must be used with "due care and prudence," rather than based on the authority's whims.

Consequences of Failure to Follow Procedures

The Cr.P.C. imposes strict procedural standards for carrying out an arrest. However, no provision is made for the penalties that will occur if these protocols are not followed; no law addresses the liability of police personnel or the state in the event of non-compliance with the rules, or whether such an arrest is legitimate or illegal. In such a case, the court's decisions serve as a guiding light for this subject. The following are the implications of failing to satisfy the procedural requirements of an arrest in a different legal context[8]:
  1. Impact on Arrest:
    If a police officer brazenly disregards all of the procedures outlined in the Code of Criminal Procedure while arresting a person, the arrest is deemed illegal. On the other hand, it is an irregular arrest if specific provisions are not followed while the remainder of the law is followed. In any case, the arrest is invalid, and the Magistrate must be aware of the nature of the illegality of the arrest when the arrestee is brought before him for the first time.
  2. Impact on Trial:
    When the investigation is complete and the police officers have uncovered sufficient evidence against the accused, they charge him with specific crimes, and the court decides whether the accused is guilty or innocent. A trial will not be thrown out just because the arrest provisions were not followed to the letter[9]. Though the illegality or irregularity of the arrest will not invalidate the accused's trial, it will be significant if the charge against such a person is resistance to or escape from the police's lawful custody. The validity of the charge is tainted by the illegal detention.
  3. Impact on Court Jurisdiction:
    It is possible that a public servant may arrest a person in one part of the state while the charge sheet is filed in another part of the state where the police station is located while acting unlawfully in the exercise of his powers. The fact that the officer who made the arrest went beyond his authority in making the arrest has no bearing on the court's jurisdiction to try the accused[10].

    In Rishbud v. State of Delhi[11], the court stated that failure to follow the arrest procedure is "merely a procedural defect that does not go deep enough into the subject to eliminate the court's jurisdiction."
  4. State Liability:
    In practise, the State's relationship with the police department is that of an employer and an employee, or, in non-traditional legal terms, a master-servant relationship. "The master shall be accountable for the wrongful conduct of the servant committed during the course of his employment," according to vicarious liability laws. Now, a police officer's arrest is an official task that he performs while wearing his official uniform.

    As a result, if a police officer makes an illegal arrest, the state should be held accountable. In Nagendra Rao v. State of Andhra Pradesh[12], the Supreme Court rejected the government employee's sovereign immunity defence (established in Kasturi Lal[13]) and found that "the State can be held liable for the wrongful acts of the police officers."
  5. Prosecution of the Offender:
    If a public servant with the authority to arrest knowingly exercises that authority in violation of the law and makes an illegal arrest, he can be prosecuted under Section 220 of the Indian Penal Code, 1860, for the same offence, which carries a maximum sentence of seven years in prison. Aside from this specific provision, anyone, including a police officer, can be charged under Section 342 of the Penal Code for "wrongful imprisonment."
  6. Civil Action Against the Criminal:
    The tort of 'false incarceration' occurs when an arrest is done illegally and in violation of the law. A tort is a civil wrong that is typically uncodified and developed by common law courts. False imprisonment is a tort in which a person restricts the free movement of another person and confines that person without his or her knowledge or agreement. In such circumstances, if the defendant is found guilty, he or she must pay the plaintiff monetary damages.
  7. Right to Self-Defense:
    The right to defend oneself and one's property is a general exception to the commission of an offence under the Indian Penal Code, which is one of several general exceptions to offences. This right allows anyone facing an imminent threat to his or her life, person, or property, or the life or property of another person, to use proportional force to stop or avoid the threat.
The right also extends to any conduct of a public official that is not done in the colours of his office or in good faith, according to Section 99 of the Code. As a result, if a person is arrested or detained illegally, he or she has the right to defend himself against any force used in the arrest, as well as the right to flee from the public servant if the arrest is illegal[14].

In the event that the arrest procedure is not followed, there are a number of options available to you.

The most well-known common law maxim is 'ubi jus ibi remedium' which means 'there is a remedy for every injustice.' If there is no remedy for a violation of rights, the law is useless. A right without a remedy is like a car without gas; the only use is to be snobby. A victim might seek two types of redress if the arrest procedure is not followed:

Relief from Imprisonment:

If it is determined that a person has been wrongfully detained, the High Courts or the Supreme Court can issue a "writ in the nature of habeas corpus" ordering the person's release. The Supreme Court issued a writ of habeas corpus in Sebastian M. Hongray v. Union of India & Ors.[15], ordering the respondents to release two listed individuals and, if they cannot, show cause why they cannot be presented before the court.

In Smt.Harbans Kaur v. Union of India[16], the petitioner is a mother of four sons who were all arrested by police officers without giving her any reason or informing her of their detention location. One of the sons, Gurbaksh, was beaten to death in custody, while others were illegally detained without being brought before a magistrate.

The detainee was brought before the Judicial Magistrate on the court's direction, and judicial custody was ordered. The Supreme Court stated that because one detainee died and others were legitimately imprisoned in judicial custody, habeas corpus could not be granted. Nonetheless, the court ordered the DGP to conduct an investigation into all of the victims' deaths and illegal detentions.

Relief of Compensation:

Without the landmark judgement of Nilabati Behera v. State Of Orissa[17], compensation for illegal arrest cannot begin. The petitioner is the mother of the deceased, who was violently attacked by police personnel before his body was discovered near a railway track. According to the authorities, it was an attempt to flee. The court was satisfied, however, that the conduct was "performed by police officers," and "a compensation of Rs. 1,50,000 was awarded to the petitioner." This was the first time a court awarded monetary damages for an illegal arrest.

In Prabavathy v. The State of Tamil Nadu[18], the petitioner filed a writ petition asking the court to order the respondents to "give compensation of Rs.5 lakhs to the petitioner for her husband E.Nanjappan's illegal detention and death in judicial custody." The petitioners were ordered to pay compensation of Rs. 8 lakhs, according to the court.

Other Benefits:
The most common relief sought is the release of the detainee and compensation. Different reliefs have been sought in some circumstances, and the courts have even accepted such reliefs. The petitioner in P Rathinam v State of Gujarat & Ors.[19] asked the court to form a commission to investigate the petitioner's custodial rape after her wrongful arrest. Furthermore, in Sri Ramamurthy v. State of Karnataka, the Supreme Court ordered the State government to revise its Police and Prison Manuals, which provide public servants broad authority.

  1. Bryan A. Garner, Black's Law Dictionary 115 (10th ed. 2014).
  2. P Ramanatha Aiyar, Concise Law Dictionary 87 (5th ed. 2014).
  3. 1 D.D. Basu, Code of Criminal Procedure, 1973 183 (6th ed. 2017).
  4. Code of Criminal Procedure, No. 2, Act of Parliament, �46, 1973 (India).
  5. Roshan Beevi v. Joint Secy., Government of Tamil Nadu, 1984 Cri. L.J. 134 (Mad).
  6. Joginder Singh v. the State of U.P., AIR 1994 SC 1349.
  7. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.
  8. R.V. Kelkar, Lectures on Criminal Procedure 51 � 52 (6th ed. 2017).
  9. K.D. Gaur, The Textbook on the Code of Criminal Procedure 67 (2016).
  10. C.K. Takwani, Criminal Procedure 51 (3rd ed. 2011).
  11. Rishbud v. the State of Delhi, AIR 1955 SC 196.
  12. Nagendra Rao v. State of Andhra Pradesh, AIR 1994 SC 2663.
  13. Kasturilal v. the State of U.P., AIR 1965 SC 1039.
  14. M.P. Sharma v. Dist. Magistrate Delhi, AIR 1954 SC 300.
  15. Sebastian M. Hongray v. Union Of India & Ors., (1984) 1 SCC 339.
  16. Smt. Harbans Kaur v. Union Of India, (1995) 1 SCC 623.
  17. Nilabati Behera v. the State Of Orissa, (1993) 2 SCC 746.
  18. Prabavathy v. The State of Tamil Nadu, (2010) SCC Mad 3231.
  19. P Rathinam v State of Gujarat & Ors., 1994 SCC Crim 11630.
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