ARREST AND RIGHTS OF AN ARRESTED PERSON IN INDIA: A DETAILED STUDY BY - PRAGYA PRIYAM & TANYA SHREE

ARREST AND RIGHTS OF AN ARRESTED PERSON IN INDIA: A DETAILED STUDY

 

AUTHORED BY - PRAGYA PRIYAM

INSTITUTION - AMITY UNIVERSITY JHARKHAND, RANCHI

DESIGNATION- STUDENT

SEMESTER- 4th

COURSE- BA.LLB[H]

MOBILE N0- 9430029115

EMAIL ID - pragyapriyam77@gmail.com

 

CO-AUTHOR NAME- TANYA SHREE

INSITUTION- AMITY UNIVERSITY JHARKHAND, RANCHI

DESIGNATION- STUDENT

SEMESTER- 4th

COURSE- BA.LLB[H]

MOBILE NO-9774176288

EMAIL ID- tanyathakur@726gmail.com

 

DECLARATION

We hereby declare that the Research Paper work entitled “ARREST AND RIGHTS OF AN ARRESTED PERSON IN INDIA: A DETAILED STUDY” is a record of an original work done by us. This research paper has not performed the basis for the reward of any degree diploma/ associateship/ fellow-ship and similar project if any. This research paper should not have been published nor should be under consideration for publication in any other journal.

 

By: Pragya Priyam & Tanya Shree

Author & Co-Author

                                                                                           Amity University Jharkhand, Ranchi

 

ABSTRACT

One of the most crucial topics in the criminal justice system is the arrest. Why is it crucial to research this subject? Because an arrest is a technique used to prove someone guilty of a crime, this is the case. It aims to stop social injustice from occurring. It is employed to instill in the populace a sense of fear that, in the event of any wrongdoing, one's freedom of movement will be confined to four walls and rudimentary comforts. A person values their freedom above everything else, and being arrested robs them of that freedom.

 

Keywords: Arrest, Criminal Justice System, Freedom, Rudimentary.

 

INTRODUCTION

The French term “arret”, which means “to stop or stay”, is the source of the English word “arrest”. When there is a suspicion that a person has committed a crime or other offence, they are placed under arrest. When someone is held for acting inappropriately, it is done. Additional actions are conducted after an arrest, such as questioning and research. The criminal justice system includes it. During an arrest, a person is physically detained by the competent authorities.

 

The definition of the term "arrest" according to the dictionary is "to seize or to capture, to bring to a stop or to make it inactive." It is clear from all the definitions that arrest refers to stopping someone's activity. Police or a magistrate may place someone under arrest. But is it possible for one person to detain another? If so, when and for what offence can he be arrested? Do those who have been arrested possess basic rights? How can he enforce it? These fundamental inquiries about arrest have all been addressed in this article.

 

A political philosopher named Bolingbroke once said that liberty is to the collective body what health is to each individual body. Man cannot experience pleasure without health, and society cannot be happy without liberty.

The Supreme Court defined an arrest as an action by a person wherein they might be brought into custody due to a criminal charge in R.R. Chari v. State of U.P. It essentially amounts to the seizing of a person in a constitutional sense.

In State of Punjab v. Ajaib Singh, the court noted that an arrest restrains a kidnapped person. the outcome of placing that person into legal custody because to a claim or suspicion that they committed a crime.

PROVISIONS RELATED TO ARREST UNDER CrPC, 1973

The arrest of people in accordance with Sections 41 to 60 is covered in Chapter V of the Code of Criminal Procedure, 1973. Protecting society from lawbreakers and criminals is the main goal of criminal law. The arrest is typically made in criminal proceedings, and it is the last resort in civil cases. Based on the use of a warrant issued by a magistrate, there are two sorts of arrests: those made with the knowledge of a magistrate's warrant and those made without one but in compliance with a legal provision allowing such an arrest, such as under sections 41, 42, and 151 of the CrPC. Section 46 of the 1973 Code of Criminal Procedure states the fundamental steps to making an arrest. The arresting authority must physically touch or restrict the subject's body in accordance with sub-section 1 of this Section. Additionally, the subject may be submitted to custody orally or physically.

 

For instance, if a person goes himself to the police station and turns himself in, he will be treated as having been arrested. In addition, sub-section 2 states that the arresting authority may employ any means necessary to prevent an escape if a subject violently resists the arresting authority.

 

TYPES OF ARREST

Neither the IPC (Indian Penal Code, 1860) nor the CrPC (The Code of Criminal Procedure, 1973) provide a definition of the term "arrest." Even in laws addressing criminal offences, the concept is not included. The only hint of what an arrest entails may be found in Section 46 of the Criminal Procedure Code, which addresses "How an arrest is made."

 

If generalised, there are two forms of arrest:

1. An arrest made in accordance with a magistrate's warrant.

2. An arrest performed in accordance with established legal requirements but without a warrant.

Private arrest is another sort of arrest in which a person is detained by a third party. However, it is only permitted when someone is apprehended for committing a crime against a person or his property, commits a non-bailable offence when another person is present, or when the person's home address is either incorrect or unknown. However, there must be enough grounds to suspect and apprehension of the target before making an arrest.

 

 

 

1. ARREST BY WARRANT

A warrant must be issued if someone commits an offence for which there is no possibility of arrest. Without a warrant, the police are unable to make this type of arrest. A judge or magistrate issues the warrant on the state's behalf. Any of these actions, as well as the capture or seizure of a person's property, are permitted by an arrest warrant.

 

When a person may be detained without a warrant is explained in Section 41(1) of the CrPC, 1973.

 

A person cannot be arrested without a warrant and an order from the court in the case of a non-cognizable offence and when a complaint is filed, according to Section 41(2) of the CrPC, 1973, subject to the requirement in Section 42.

 

Ramadugu Omkar v. Sri Ashok Naik is a recent case in which the petitioner accused the respondent of violating the rules set forth in the Arnesh Kumar case by arresting Omkar without giving him any notice in accordance with section 41-A. The Supreme Court ruled that a notice must be given when an arrest is not made as required by section 41(1) in order to ensure that the accused will show up as required. As a result, it would result in pointless arrests of anyone.

 

1. ARREST WITHOUT WARRANT

When a police officer has the legal authority to make an arrest without a warrant, this occurs. Only those who are suspected of an arrestable offence are eligible for it. Numerous justifications are listed under Section 41(1) of the CrPC for making an arrest without a warrant. When a cognizable offence occurs, a reasonable complaint is filed, or reliable information is obtained, it is typically done.

Other grounds of arrest have been discussed below:

 

1. ARREST FOR REFUSING TO PROVIDE NAME AND ADDRESS

The procedure to follow in the event of an arrest for failing to provide name and address is outlined in Section 42 of the CrPC.

 

According to Section 42(1), an individual who has committed a non-cognizable offence and who refuses to provide his name or address or who provides a false name and address upon the officer's demand may be arrested by that individual in order to determine his true name or place of residence.

 

The individual so arrested may be released after determining the correct name or address, but only after executing a bond, with or without sureties, to appear before the magistrate if necessary, according to Section 42(2) of the Criminal Code. However, the bond must be secured by a security or securities that are residents of India if the person is not a resident of India.

 

According to Section 42(3), the individual must be brought before the magistrate who has jurisdiction if the person's genuine name or address cannot be determined within twenty-four hours or if he refuses to execute the bond or provide the necessary sureties.

 

1. ARREST BY PRIVATE PERSON

Section 43 of the Criminal Procedural Code specifically outlines the process for a private person's arrest.

 

According to Section 43(1), a private person may detain a suspect who has committed a non-bailable offence or any proclaimed offender and take them immediately to a police officer; if the officer is not present, the suspect must be taken to the closest police station.

 

If the arrest of that person falls under Section 41, the police officer must re-arrest him, according to Section 43(2).

 

According to Section 43(3), if there are grounds to think that the person has committed a crime for which bail is available and he refuses to furnish the police officer with his real name or address, he will be dealt with in accordance with Section 42's rules. However, if there are no compelling reasons to suspect that he has committed a crime, he will be freed.

 

1. ARREST BY MAGISTRATE

Here, the term "magistrate" refers to either a judicial or executive magistrate. According to Section 44(1) of the Criminal Procedure Code, when an offence is committed in front of a magistrate within the scope of his local jurisdiction, he has the authority to either make the arrest himself or to make an arrest order for someone else, and according to the terms of the bail agreement, commit the accused to custody.

 

The Magistrate may also arrest or instruct to be arrested any person in his presence who is within his local jurisdiction and who he is competent to arrest at the moment and under the circumstances, according to Section 44(2), which is in addition to Clause 1.

 

1. AN EXCEPTION OF THE ARMED FORCES

According to Section 45 of the CrPC, personnel of the armed forces are protected from arrest.

According to Section 45(1), no member of the armed forces may be detained for anything done while performing official responsibilities without the Central Government's approval. It is governed by the restrictions listed in Sections 41 through 44 of the Code.

 

According to Section 45(2), the State Government may, at any time that they are serving, order that the sub-section (1) apply to any class or category of members of the armed forces who are responsible for maintaining public order as may be stated therein. In other words, the State government has the same authority to exercise the aforementioned powers as the Central Government.

 

1. PROCEDURE OF ARREST

The entire technique is not provided by a complete code. Nevertheless, Section 46 describes the arresting process.

 

It is the only place where an arrest definition may be found.. According to Section 46(1), the police officer or the person making the arrest must physically touch or restrain the apprehended person's body. Women are believed to have consented to being held after receiving an oral arrest notification, and police officers are not allowed to touch them unless they are female. Contrary to what is stated, however, it is possible under unusual circumstances.

 

In circumstances where the individual being detained violently resists or makes an attempt to elude arrest, the police are permitted by Section 46(2) to use a reasonable amount of force or other means to make the arrest.

 

 

What we observed in the Hyderabad Rape Case (2019) is a recent example. In order to stop the accused from escaping, the police officer employed a certain level of force authorised by this clause. The court will look into the issue of whether or not the degree of force used was reasonable.

The right to kill someone who is not under suspicion for a crime is not granted by Section 46(3). In such circumstances, the penalty is either death or life in prison.

 

According to Section 46(4), a woman cannot be arrested before or after sunset, except under certain circumstances. In these cases, the woman police officer may request advance permission from the Judicial Magistrate with the local jurisdiction to make the arrest by filing a written report.

 

1. ADDITIONAL AUTHORITY TO MAKE AN ARREST AND CONDUCT A SEARCH

The search of a place entered by a location sought to be entered is allowed under Section 47 of the Criminal Procedure Code. Additionally, it states that whoever possesses the warrant has the obligation to enter the suspect's home. The person has the right to smash through the door if they cannot readily enter the property or if they are not permitted to do so. To catch the person off guard, it is done.

 

However, if a female is present, the person who was arrested must give her notice to leave and must provide every practical convenience for doing so. They might even enter the flat.

Any police officer or anyone performing the arrest is allowed to smash open the door to free himself if he becomes trapped during the arrest.

 

1. PURSUIT OF OFFENDERS

The act of pursuing someone or something is called a pursuit. In this instance, the focus is primarily on the offenders. Without a warrant, police personnel are allowed to follow offenders in any location in India under Section 48.

 

1. A SPECIAL PROVISION FOR FEMALE ARREST

Women have been granted some specific privileges that must be adhered to when making an arrest. The basic norm is that no female should be detained without a female constable present, and no female should be arrested after sundown. However, there is an exception where the crime is particularly terrible and the arrest is crucial because in certain situations, arrests can be done on special orders based on the circumstances of such cases. Women are to have access to separate lockups.

 

Additionally, only licenced female medical professionals must be chosen to examine female accused, according to section 53 sub-section 2 of the Criminal Procedure Code.

 

RIGHTS OF AN ARRESTED PERSON

"Innocent until proven guilty" is the cornerstone of the Indian legal system. Article 21 of the Constitution, which provides that "no person shall be deprived of his right to life and personal liberty except in the course of a procedure established by law," can be broken by arresting someone. It means that the process must be impartial, transparent, and free from bias or oppression.

 

1. Right to know the grounds of Arrest

• Article 22(1):

No police officer may make an arrest without giving the suspect notice of the reason for the arrest, according to Article 22(1) of the Indian Constitution.

 

• Section 50:

According to Section 50 of the Criminal Procedure Code, every police officer or other person with the authority to detain someone without a warrant is required to inform the detained individual of the offence for which they have been detained as well as any additional justifications. The police officer cannot reject because it is his duty.

 

• Section 50A:

A person making an arrest is required by Section 50A of the CrPC to inform any of his friends, relatives, or other people in his interest about the arrest. As soon as the suspect is taken into custody, the police officer needs to let him know that he has a right to information about his arrest being given to the designated person.

 

• Section 55:

According to Section 55 of the Criminal Procedure Code, anytime a police officer gives his subordinate permission to make an arrest without a warrant, the subordinate officer is required to inform the subject of the arrest of the nature of the written order that was made, including the infraction and additional grounds for the arrest.

 

• Section 75:

According to Section 75 of the Criminal Procedure Code, the arresting officer (or any other officer carrying out the warrant's instructions) must explain the situation to the suspect and, if necessary, show him the warrant.

 

1. Right to be produced before the Magistrate without Unnecessary Delay

• Article 22 (2):

According to Article 22(2) of the Constitution, a police officer who makes an arrest must appear before a magistrate within 24 hours of the arrest. The police officer will be held accountable for illegal detention if he doesn't appear before the magistrate within 24 hours.

 

• Section 55:

According to Section 55 of the Criminal Procedure Code, a police officer who makes an arrest without a warrant must, subject to the terms of the arrest, present the suspect without undue delay before the magistrate with jurisdiction or the police officer in charge of the police station.

 

• Section 76:

According to Section 76 of the Criminal Procedure Code, the police officer executing an arrest warrant is required to present the arrested individual before the court where he is legally required to do so. The suspect must be turned in within 24 hours of their arrest, according to the clause. The time needed to travel from the location of detention to the Magistrate Court shall not be included when calculating the 24-hour timeframe.

 

1. Right to be released on Bail

• Section 50:

When a police officer arrests a person without a warrant for an offence other than a non-cognizable offence, according to Section 50 of the Criminal Procedure Code, he is required to tell that individual of his right to release on bail and to arrange for sureties on his behalf.

1. Rights to a Fair Trial

The CrPC makes no mention of the right to a fair trial, but this right can be inferred from the Constitution and numerous court decisions.

 

According to Article 14 of the Constitution, "all persons are equal before the law." It implies that all disputing parties should be treated equally. Regarding both parties, the natural justice concept should be taken into account.

 

In the case of Huissainara Khatoon v. Home Secretary, State of Bihar, the court ruled that the right to a quick trial is recognised and that "the trial is to be disposed of as expeditiously as possible."

 

1. Right to Consult a Lawyer

• Article 22(1):

According to Article 22(1) of the constitution, a person who has been arrested has a right to select a defence attorney and be represented by that attorney.

 

• Section 41D:

During questioning, inmates have the right to speak with an attorney under Section 41D of the Criminal Procedure Code.

 

• Section 303:

A person has the right to be represented by a lawyer of his choosing when they are accused of committing an infraction before a criminal court or when legal action has been taken against them, according to Section 303 of the Criminal Procedure Code.

 

1. Right to free Legal Aid

• Section 39A:

A state is required by Article 39A to offer free legal representation in order to uphold the rule of law. Additionally, this right was expressly granted in the case of Khatri (II) v. State of Bihar. The judge ruled that it was necessary "to provide the poor accused person with free legal aid." Additionally, it is given once the proceedings get underway and the accused is first brought before the magistrate. Even if the accused does not submit an application, their right cannot be rejected.

If the state denies the poor defendant with legal representation, the entire trial would be declared invalid. The court ruled in Sukh Das v. Union Territory of Arunachal Pradesh that an accused person who is impoverished cannot have their rights denied even if they choose not to apply for them. The state's failure to offer the poor defendant legal representation renders the entire trial null and void.

 

• Section 304:

According to Section 304 of the Criminal Procedure Code, when a trial is held before the Court of Session and the accused is not represented by an attorney or it appears that the accused lacks the necessary resources to appoint a pleader, the court may name a pleader for the accused's defence at the expense of the State.

 

1. Right to Keep Silence

No statute recognises the right to remain silent, although it can draw its legitimacy from the CrPC and the Indian Evidence Act. This right mostly relates to the confession and statement made in court. Every time a confession or statement is made in court, the magistrate has the responsibility of determining whether the confession or statement was made freely or not. No one who has been arrested can be forced to testify in court.

 

• Article 20(2):

According to Article 20(2), no one may be forced to testify against themselves. This is the self-incrimination principle. The Nandini Satpathy v. P.L. Dani (1978) case reaffirmed this idea. The sentence said, "No one has the right to compel anyone to make a statement or to respond to inquiries, and the accused person has the right to remain silent throughout the interrogation process."

 

1. Right to be Examined by the Medical Practitioner

• Section 54:

According to Section 54 of the Criminal Procedure Code, the court may order a medical examination of an accused person upon request from him (the accused), unless the court is satisfied that such a request is made with the intent to thwart the administration of justice. This applies when the arrested person claims that examination of his body will reveal information that will refute the fact that he committed an offence or that it will encourage someone else to commit an offence against his body.

 

1. Other Rights

• Section 55A:

According to Section 55A of the Criminal Procedure Code, the person in charge of the arrested person has a responsibility to take reasonable precautions for the accused's health and safety.

 

• Section 358:

The person who has been arrested must be shielded from inhumane treatment. A person who has been unlawfully detained has the right to compensation under Section 358 of the Criminal Procedure Code.

 

• Section 41A:

According to Section 41A of the Criminal Procedure Code, a police officer may notify a suspect of a cognizable offence to appear before him at the specified date and location.

 

• Section 46:

The mechanism of the arrest is specified under Section 46 of the CrPC. i.e., consent to custody, physical contact with, or proximity to, a body. If the suspect is not accused of a crime carrying a death or life sentence, the police officer has no right to kill the person while conducting the arrest.

 

• Section 49:

According to Section 49 of the Criminal Procedure Code, the police officer should not apply more restraint than is required for the escape. Detention or restraint without an arrest is prohibited.

 

CASE LAWS

• D K Basu v. State of West Bengal (1996)

This case established some rules that had to be adhered to in every arrest and detention situation. Additional rights granted to the individual who was arrested or imprisoned were discussed in this case. This was carried out in an effort to reduce the incidence of police aristocracies and occurrences of deaths in custody.

• Birendra Kumar Rai v. Union of India (1992)

According to the ruling, if the suspect consents to being taken into custody, the arrest can be made entirely by spoken commands rather than handcuffs.

 

• Kultej Singh v. Circle Inspector of Police (1992)

According to the court's ruling, limiting a person's movement to the police station's grounds or keeping them in custody there counts as arresting them.

 

CONCLUSION

Each and every citizen of the nation has rights. To ensure seamless operation and eliminate any confusion when carrying out any kind of arrest, a number of provisions have been established under the CrPC and the Indian Constitution. In an appropriate manner, a number of rights have been given to those who have been detained in order to prevent any kind of exploitation on the part of the arresting authority. The legislation has therefore placed emphasis on both the arrest and the arrestee. The police must, however, adhere to the method outlined in Chapter V of the Code of Criminal method (CrPC).

 

REFERENCES

• https://blog.ipleaders.in/rights-of-an-arrested-person/
• https://restthecase.com/knowledge-bank/legal-rights-of-arrested-people-in-india#:~:text=Article%2022(1)%20of%20the%20constitution%20claims%20that%20the%20prisoner,(lawyer)%20of%20their%20choice.
• https://www.legalserviceindia.com/legal/article-7839-rights-of-arrested-person.html
• https://www.helplinelaw.com/employment-criminal-and-labour/RAPI/rights-of-an-arrested-person-in-india.html
• https://blog.finology.in/criminal-law/rights-of-arrested-person