The author has described the meaning, procedure and the rights associated within the act of arrest. Judicial precedents have been used accordingly.
What is an Arrest?
Generally, a person who breaks the law is arrested. The term arrest means to apprehend a person by the legal authority to cause deprivation of liberty. Furthermore, an arrest can also be understood as a seizure or forcible restraint. It is an exercise of power to deprive a person of his or her liberty and involves the keeping of a person in custody by legal authority, especially, in response to a criminal offence.
Under criminal law, an arrest is an important tool to bring an accused before the court and to not let him abscond.
Types of Arrest
Following are the two types of Arrest:
- An arrest made in view of a warrant issued by a magistrate
- An arrest made without such a warrant but in accordance with some legal provision permitting such an arrest.
The procedure of Arresting a Person
In cases where the police arrest a person by the virtue of an arrest warrant issued by a magistrate, the person shall be no be handcuffed unless the magistrate has ordered to do so.
In cases where a woman is to be arrested, her submission to custody shall be presumed on an oral intimation of arrest unless the circumstances indicate the contrary, or unless there is a female police officer, the male officer making the arrest shall not touch the woman who is to be arrested.
It is when a person to be arrested forcibly resists, or attempts in any manner to evade the arrest, then the police officer or other person affecting the arrest may use all means necessary to give effect to the arrest.
No women shall be arrested after sunset and before sunrise except under exceptions and where such exceptional circumstances exist, it is the duty of the woman police officer to make a written report, and obtain the prior permission of the Judicial Magistrate of the first class with competent jurisdiction of the offence for which such arrest is to be made.
Rights of an Arrested Person in India
An accused in India is given certain rights, the most basic of which are found in the Indian Constitution.
Article 21 of the Indian Constitution provides such rights. The treatment of such people has to be humane and, in the manner, prescribed by law.
Right to remain silent:
Article 20(3) of the Constitution of India guarantees every person the right against self-incrimination, and it has been stated under this article that no person, who has been accused of an offence, shall be compelled to act as a witness against himself. This same rule has been reiterated by a decision of the Supreme Court in the case of Nandini Sathpathy v. P.L. Dani and it was held by the court in this case that no one can forcibly extract any statement from the accused.
Right to know the Grounds of Arrest:
According to Section 50(1) of Cr.P.C., an accused who is being arrested by any police officer, without any warrant, has the right to know the full particulars of offence for which he is being arrested, and so it’s the undeniable duty of the police officer to inform the accused of the particulars.
Under Section 55 of Cr.P.C., there shall be a written order against him, specifying the offence or other cause for which the arrest is being made. The arrest will be illegal in case of non-compliance with this provision.
Right to be released on Bail:
Article 21 of the Indian Constitution says that every individual shall have a right to liberty as per procedures established by law. However, an accused cannot be given all these liberties till he is proven innocent. But he needs to be informed that he has a right to apply for bail in bailable offences and even in non-bailable offences, bail could be granted by the Court after taking into factors such as nature or seriousness of the offence, the character of the evidence, etc.
Right to be taken before Magistrate without delay:
Section 55 of Cr.P.C. states that a police officer arresting without a warrant should produce the arrested person without unnecessary delay before the Magistrate having jurisdiction or a police officer in charge of the police station, subject to the conditions of the arrest.
Section 76 of Cr.P.C. states the person should be produced within 24 hours of arrest before the Court. While calculating 24 hours, it must exclude the time which is required for the journey from the place of detaining to the Magistrate Court.
Article 22(2) of the Constitution states that the police officer making an arrest should be produced before the Magistrate within 24 hours of arrest. If the police officer fails to produce before Magistrate within 24 hours, he will be liable for wrongful detention.
Right to a Fair Trial:
Article 14 of the Constitution of states that “all persons are equal before the law”. It means that all the parties to the dispute should be given equal treatment. The principle of natural justice should be considered in respect of both parties. Right to a speedy trial is recognized in the case Huissainara khatoon vs Home Secretary, State of Bihar, the court held- “the trial is to be disposed of as expeditiously as possible”.
Right to a Speedy Trial:
Regardless of this right not being mentioned in the constitution, the SC in the Hussainara Khatoon case has made it mandatory that the investigation in the trial must be conducted “as expeditiously as possible.”
In cases, where the maximum punishment to be imposed is 2 years, once the accused is arrested, it is important that the investigation for the trial gets completed within six months or is stopped after an order from the magistrate has been received, unless the Magistrate receives and accepts, with his reasons in writing, that there is cause to extend the investigation.
Right to consult a Legal Practitioner:
It is the right of every arrested person to consult a legal practitioner of his own choice. This has also been enshrined as a fundamental right in Article 22(1) of the Constitution of India, which is undeniable in all cases. Section 50(3) of the Code also states that the person against whom proceedings are initiated has a right to be defended by a pleader of his choice. This right begins as soon as the person is arrested.
Right to Free Legal Aid:
The Supreme Court in the case of Khatri v. the State of Bihar held that the state is under a constitutional obligation as is implicit in Article 21 of the constitution as well to provide free legal aid to an indigent accused person.
It is important to note the fact that this right commences at the time of trial and continues till the accused is produced the first time before the magistrate and also when remanded from time to time.
The Supreme Court has emphasized the importance of this right by stating that that failure on the part of the state to inform the accused of this right will vitiate the whole process of trial.
Therefore, it is a binding duty imposed on all magistrates and courts to inform the indigent accused of his right to get free legal aid. The apex court has taken a step further in Suk Das v. Union Territory of Arunachal Pradesh, wherein it has laid down that this constitutional right cannot be denied if the accused failed to apply for it.
Right to be examined by a Medical Practitioner:
Section 54 of Cr.P.C. enumerates this right and it states that examination of arrested person by medical practitioner at the request of the arrested person.
When an arrested person, whether on a charge or otherwise alleges at the time when he is produced before a Magistrate or at any time for which he is detained in custody that the examination of his body will afford evidence which will lead to disproving the commission of the offence by him or which will establish the committing of offence by any other person against his body, the Magistrate shall direct the examination of the body of such person by a registered medical practitioner.
The Magistrate needs to use his discretion to see that the request is not made for vexation or delay or for defeating the ends of justice.
Custodial death and illegal arrest are major problems in India. It infringes Article 21 of the Constitution and also the basic human rights which is available under the Universal Declaration of Human Rights. The guidelines issued by the Supreme Court in D.K Basu vs State of West Bengal are not properly being implemented. Proper implementation of the provision and guidelines can result in a decreasing number of illegal arrests.