Report No. 41
Arrest, Escape and Retaking
5.1. Section 46 to 5.-Physical examination of arrested person.-
Chapter V is divided into two parts, part A dealing with "arrest generally" and part B with "arrest without warrant". In regard to part A consisting of sections 46 to 53, no amendments have been suggested in the previous Report. But the Commission considered.1 at length the question as to how far the physical examination of the arrested person is legally and constitutionally permissible and what provision, if any, should be made in the Code for this purpose.
It came to the conclusion that a provision on the subject was needed and recommended a new section authorizing, in certain circumstances and subject to certain safeguards, the examination of the person of the accused by a qualified medical practitioner. We agree that such a provision is necessary for effective investigation and will not offend against Article 20(3) of the Constitution. A new section 53A may be inserted after section 53 as follows:
"53A. Examination of person by medical practitioner.- (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of the offence, it shall be lawful for a registered medical practitioner acting at the request of a police officer not below the rank of su.-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.
(2) Whenever the person of a woman is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner."
1. 37th Report, para. 183 and Appendix 6.
5.2. Section 54.-
In part B of this chapter the previous Report recommended a few amendments and two new provisions to which we shall briefly refer. In regard to section 54(1), clause ninthly, there has been a sharp controversy as to whether the "requisition" received from the other polic.-officer must be in writing before it can be acted upon. We agree that it should be set at rest. The clause should refer to "any person for whose arrest any requisition, whether written or oral, has been received from another police officer."
5.3. Section 55.-
Two minor amendments are proposed in section 55. First, in clause (a) of su.-section (1), the reference should be to "any person within the limits of such station who is found taking precautions to conceal his presence under circumstances etc." Secondly, in clause (c), the phrase "in fear for injury" should be replaced by "in fear of injury".
5.4. Section 56.-
For the avoidance of any controversy, it is proposed to insert a su.-section (1A) in section 56 reading.-
"(1A) Nothing in su.-section (1) shall affect the power of a polic.-officer to arrest a person under section 54."
5.5. Section 57.-
Where a person committing or accused of committing a no.-cognizable offence refuses, on demand by a police officer, to give his name and residence, or gives a false name or residence, he can be arrested by the polic.-officer, under section 57(1). Under section 57(2), when the true name and residence is ascertained such person is to be released on his executing a bond to appear before a Magistrate if so required. In the previous Report,1 the words "having jurisdiction" were proposed to be added after the words "a Magistrate", (following the Bombay and Punjab amendments). We are, however, of the view that this amendment is unnecessary. If strictly interpreted, it would throw upon the police officer the burden of finding out which Magistrate would have jurisdiction to deal with the case and entering the name of that Magistrate in the bond, which in the circumstances would be quite impracticable.
1. 37th Report, para. 198.
5.6. Section 59.-
Section 59 deals with the right of a private person to arrest any person who "in his view" commits a no.-bailable and cognizable offence. Two points pertaining to this section were considered in the previous Report. The first point1 was whether it is necessary to replace the words "in his view" by the words "in his sight" or by the words "in his presence". The case law on the subject was examined, but it was considered unnecessary to make any change. The matter was raised again before us, and it was stressed that a verbal alteration was desirable, since the word "view" might also mean "opinion".
As this point has provoked considerable discussion,2 we think that the opportunity may be taken to clarify it. Both in section 57 and in section 64, the words "in his presence", are used to express the same idea. We propose that the words "in his presence" may be substituted for the words "in his view" in section 59(1) also. The second point3 was that the section should expressly enable the private person not only to arrest the offender himself, but also "to cause him to be arrested." Su.-section (1) of section 59 may accordingly be amended to read as follows.-
"(1) Any private person may arrest or cause to be arrested any person who in his presence commits a no.-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a polic.-officer, or in the absence of a polic.-officer, take such person or cause him to be taken in custody to the nearest polic.-station."
1. 37th Report, para. 200(i).
2. See Nazir v. Rex., AIR 1951 All 3 (Full Bench).
3. 37th Report, para. 200(ii).
5.7. New Sections 59A and 5913.-
The previous Report1 recommended the insertion of two new sections after section 59 as follows.-
"59A. Person arrested to be informed of grounds of arrest.- Every police officer or other person arresting any person without warrant shall communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.
B. Polic.-officer to inform person arrested of right to bail.- Where a polic.-officer arrests without warrant any person other than a person accused of a no.-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties to offer bail on his behalf."
1. 37th Report, paras. 201 and 202.
5.8. Section 61.-
In section 61, the previous Report recommended1 a verbal change in the opening part making it read "No person who has been arrested without warrant shall be detained in custody for a larger period etc." On reconsideration we do not think that this change from a clear and mandatory direction to the polic.-officer making the arrest which is in conformity with Article 22(2) of the Constitution is necessary or even desirable.
1. 37th Report, para. 204.