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Report No. 154

Chapter IV

Law of Arrest

1. Arrest entails deprivation of a person's liberty by legal authority or at least by apparent legal authority. In a democratic country such as ours, the Constitution and laws value personal liberty of every individual and contain provisions for safeguarding it. The right to personal liberty is a basic human right recognised by the Universal Declaration of Human Rights, 1948 and the International Government on Civil and Political. Rights, 1966 which India has ratified.

Furthermore, the Constitution of India recognises it as a fundamental right in Article 21 thus: "No person shall be deprived of his life or personal liberty except according to procedure established by law". In Maneka Gandhi v. Union of India, AIR 1978 SC 597 the Supreme Court has interpreted that the procedure under this Article must be "right, just and fair" and not arbitrary, fanciful or oppressive.

2. The provisions relating to arrest with or without warrant and the rights of arrested persons are incorporated in sections 41 to 60 of the Code of Criminal Procedure. Section 41 specifies the various categories of persons whom any police officer may arrest without warrant or an order from a magistrate. Out of this, the most important category is found in sub-clause (a) of clause (1) which refers to any person "who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned."

3. One of the compelling issues in the sphere of the law of arrests is how to balance the protection of human rights to personal liberty consistent with the society's interest in crime detection and maintenance of law and order in civil society. As pointed out very pertinently by the Supreme Court in Joginder Kumar v. State of Uttar Pradesh : Crimes 1994 (2) 106 (107).

"The horizon of human rights is expanding. At the same time, the crime rate is also increasing... The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the others, of weighing and balancing the rights, liberties and privileges of the, single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis, of deciding which comes first- the criminal or society, the law violator or the law abider..."

4. The National Police Commission had observed in its Third Report that the power of arrest is one of the sources of police corruption.1 As a result of the sample study made of the quality of arrests made in one State during the three year period 1974-1976, the Commission observed:

"It is obvious that a major portion of the arrests were connected with very minor prosecutions and cannot, therefore, be regarded as necessary from the point of view of crime prevention. Continued detention in jail of the persons so arrested has also meant avoidable expenditure on their maintenance. In the above period, it was estimated that 43.2 per cent. of the expenditure in the connected jails was over such persons only who in the ultimate analysis need not have been arrested at all."

1. Third Report of the National Police Commission, para. 22.23, (1980).

5. The National Police Commission had recommended the following guidelines for making arrests.1 An arrest during the investigation of a cognisable case may be considered justified in one or other of the following circumstances:

(i) The case involves a grave offence like murder, dacoity, robbery, rape, etc. and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.

(ii) The accused is likely to abscond and evade the processes of law.

(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.

(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.

It would be desirable to insist through departmental instructions, that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines.

1. Third Report of the National Police Commission, para. 22.23, (1980).

6.1. The Supreme Court in Joginder Kumar's case laid down some guidelines regarding the power of arrest by the police. The Court referred to the Report of Sir Cyril Phillips Committee-Report of the Royal Commission on Criminal Procedure (Command Papers 802, 1981) wherein the following suggestion was made:1

"To help to reduce the use of arrest we would also propose the introduction here of a scheme that is used in Ontario [Canada] enabling a police officer to issue what is called on appearance notice. That procedure can be used to obtain attendance at the police station without resorting to arrest provided a power to arrest exists, for example to be fingerprinted or to participate in an identification parade. It would also be extended to attendance for interview at a time convenient both to the suspect and to the police officer investigating the case."

1. Crimes 1994 (2) 106 (107, 110).

6.2. The Supreme Court also referred to section 56(1) of the Police and Criminal Evidence Act, 1984 in the United Kingdom which provides:1

"Where a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable, except to the extent that delay is permitted by this section, that he has been arrested and is being detained there."

1. Ibid., at 111.

6.3. The Court referred to the Royal Commission's Enunciation of Guidelines as follows:1

"We recommend that detention upon arrest for an offence should continues only on one or more of the following criteria:

(a) the person's unwillingness to identify himself so that a summons may be served upon him;

(b) the need to prevent the continuation or repetition of that offence;

(c) the need to protect the arrested person himself or other persons or property;

(d) the need to secure or preserve evidence of or relating to that offence or to obtain 'such' evidence from the suspect by questioning him; and

(e) the likelihood of the person failing to appear at court to answer any charge made against him."

1. Crimes 1994 (2) 106 (107, 109-110).

6.4. The Supreme Court after examining the law in England, proceeded to lay down guidelines for making arrest. Balancing the need for arrest with the right to personal liberty in Article 21 of the Constitution, the Court observed:1

The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest.

Denying a person of his liberty is a serious matter. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave station without permission would do."

1. Ibid., at 110.

6.5. The Court formulated the following requirements for effective protection of Fundamental Rights of Articles 21 and 22(1):1

"(1) 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 told as far as is practicable that he has been arrested and where is being detained.

(2) The police officer shall inform the arrested person when he is brought to the police station of this right.

(3) 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."

1. Ibid., at 111.

6.6. The Court also laid down that it shall be the duty of the magistrate before whom the arrested person is produced, to satisfy himself that the requirements have been complied with.

7.1. The Law Commission in its One Hundred and Fifty-second Report on Custodial Crimes, (1994) has recommended the insertion of two sections, namely, that in section 41 after sub-section (1), the following new sub-section (1A) be inserted1

"41(1A) A police officer arresting a person under clause (a) of sub-section (1) of this section must be reasonably satisfied, and must record such satisfaction, relating to the following matters:

(a) the complaint, information or suspicion referred to in that clause, is not only in respect of a cognizable offence having been committed, but also in respect of the complicity of the person to be arrested, in that offence;

(b) arrest is necessary in order to bring the movements of the person to be arrested under restraint, so as to inspire a sense of security in the public or to prevent the person to be arrested from evading the process of the law or to prevent him from: committing similar offences or from indulging in violent behaviour in general."

1. See 152nd Report on Custodial Crimes, paras. 14.4., 14,6, (1994) (Unpublished).

7.2. A further suggestion to incorporate a new section 41A on the basis of the Supreme Court's decision in Joginder Kumar's case was made:1

"41A. Notice of appearance.-Where the case falls under clause (a) of sub-section (1) of section 41, the police officer may, instead of arresting the person concerned, issue to him a notice of appearance requiring him to appear before the police officer issuing the notice or at such other place as may be specified in the notice and to cooperate with the police officer in the investigation of the offence referred to, in clause (a) of sub-section (1) of section 41.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of that notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice, it shall be lawful for the police officer to arrest him for the offence mentioned in the notice, subject to such orders as may have been passed in this behalf by a competent court."

1. Ibid.

8.1. The Law Commission of India in its 135th Report on "Women in Custody" the following recommendations regarding the arrest of women1:

"450B. Arrest of women.-(i) Where a woman is to be arrested under this Code, then unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed, and unless the circumstances otherwise require or unless the police officer arresting is a female, the police officer shall not actually touch the person of the woman for making her arrest.

(See para. 2.2)

(2) Except in unavoidable circumstances, no woman shall he arrested after sunset and before sunrise, and where such unavoidable circumstances exist, the police officer shall, by making a written report, obtain the prior permission of the immediate superior officer not below the rank of an Inspector for effecting such arrest or, if the case is one of extreme urgency, he shall, after making the arrest, forthwith report the matter in writing to his such immediate superior officer, with the reasons for arrest and the reasons for not taking prior permission as aforesaid and shall also make a similar report to the Magistrate within whose legal jurisdiction the arrest has been made."

(See para. 2.3)

The aforesaid recommendation has been adopted as sub-section (4) of section 46 in clause 7 of the 1994 Bill in the following manner:

"(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise and where such exceptional circumstances exist, the police officer shall, by making a written report, obtain the prior permission of his immediate superior officer for effecting such arrest or, if the case is one of extreme urgency and such prior permission cannot be obtained before making such arrest, he shall, after making the arrest, forthwith report the matter in writing to his immediate superior officer explaining the urgency and the reasons for not taking prior permission as aforesaid and shall also make a report to the Magistrate within whose local jurisdiction the arrest had been made."

We reiterate this recommendation.

1. See 135th Report on Women in Custody (1989).

8.2. We suggest the following amendments to section 46 of the Code of Criminal Procedure:

"In the light of the discussion in the preceding para, proviso (b) on the following lines be added to sub-section (1) of section 46 in the following manner:

Provided that where a woman is to be arrested then, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation, arrest shall be presumed and unless the circumstances otherwise require or unless the police officer arresting is a female the police officer shall not actually 'touch the person of the woman for making her arrest."'

8.3. We also suggest that the following new sub-section (2) be inserted in section 46 in the following manner:

"(2) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the police officer shall, by making a written report, obtain the prior permission of his immediate superior officer for effecting such arrest, or if the case is one of extreme urgency and such prior permission cannot be obtained before making such arrest, he shall, after making the arrest, forthwith report the matter in writing to his immediate superior officer explaining the urgency and the reasons for not taking prior permission as aforesaid and shall also make a report to the Magistrate within whose local jurisdiction the arrest had been made."

[As provided in Clause 7 of the 1994 Bill.]

8.4. In view of above proposed changes, the other existing sub-sections be re-numbered.

9. The Law Commission of India in its 152nd Report on Custodial Crimes recommended that a new section 50A be inserted after section 50 in the Code of Criminal Procedure, 1973 on the following lines:

"50A. (1) whenever a person is arrested by a police officer, intimation of the arrest shall be immediately sent by the police officer (along with intimation about the place of detention) to the following person:

(a) a relative or friend or other person known to the arrested person, as may be nominated by the arrested person;

(b) failing (a) above, the local legal aid committee.

(2) Such intimation shall be sent by telegram or telephone, as may be convenient, and the fact that such intimation has been sent shall be recorded by the police officer under the signature of the arrested person.

(3) The police officer shall prepare a custody memo and body receipt of the person arrested, duly signed by him and by two witnesses of the locality where the arrest has been made, and deliver the same to a relative of the person arrested, if he is present at the time of arrest or, in his absence, send the same along with the intimation of arrest to the person mentioned in (1) above.

(4) The custody memo referred to in (3) above shall contain the following particulars:

(i) name of the person arrested and father's name or husband's name;

(ii) address of the person arrested:

(iii) date, time and place of arrest;

(iv) offence for which the arrest has been made;

(v) property, if any, recovered from the person arrested and taken into charge at the time of the arrest; and

(vi) any bodily injury which may be apparent at the time of arrest.

(5) During the interrogation of an arrested person, his legal practitioner shall be allowed to remain present.

(6) The police officer shall inform the person arrested, as soon as he is brought to the police station, of the contents of this section and shall make an entry in the police diary about the following facts:

(a) the person who was informed of the arrest;

(b) the facts that the person arrested has been informed of the contents of this section; and

(c) the fact that a custody memo has been prepared, as required by this section."1

1. See 152nd Report on Custodial Crimes, para. 14.7, (1994).

10. The Law Commission of India in its 152nd Report on Custodial Crimes recommended that section 57A be inserted in the Code of Criminal Procedure, 1973 on the following lines:

"57A. Duty of Magistrate to verify certain facts.-When a person arrested without warrant is produced before the Magistrate, the Magistrate shall, by inquiries to be made from the arrested person, satisfy himself that the provisions of sections... have been complied with (sections relating to safeguards in connection with arrest, rights on arrest, etc. to be entered) and also inquire about, and record, the date and time of arrest."1

1. See 152nd Report on Custodial Crimes, para. 14.9, (1994).

11. In view of the guidelines enunciated by the Supreme Court in Joginder Kumar's case and also the consequent recommendations of the Law Commission in its 152nd Report the following new sub-clause to section 41 be inserted in the Code:

"41(3). A police officer arresting a person under clause (a) of sub-section (1) of this section must be reasonably satisfied that arrest is necessary and must record such satisfaction in respect of matters covered every clause of sub-section (1)."

Further a new section 41A be also inserted in the Code on the following lines:

"41A(1). The police officer may, if satisfied that immediate arrest of the person concerned is not necessary, issue to him a notice requiring him to appear before the police officer at specified time and place for further investigation and it shall be the duty of that person to comply with the terms of the notice.

(2) If such person fails to comply with the terms of the notice, it shall be lawful for the police officer to arrest him for the offence mentioned therein."

(Ch. IV, para. 11)



The Code of Criminal Procedure, 1973 Back




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