TOPIC - 2
ARREST AND PRE-TRIAL DETENTION - ROLE OF JUDGE/MAGISTRATE
Sl. Officer Name and Designation Page Nos.
No. 2 - 16
Smt. U. Priyadarshini, 17 – 33
34 - 43
1. IV-Addl. Chief Metropolitan Magistrate, 44 - 65
Vijayawada.
2. Smt G. Chandramowleswari,
Prl. Junior Civil Judge, Machilipatnam.
Smt M. Satya Kumari,
3.
Addl. Judicial First Class Magistrate, Gudivada.
Smt S. Vara Lakshmi,
4.
Junior Civil Judge, Mylavaram.
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ARREST & PRE-TRIAL DETENTION
By
Smt. U. Priyadarshini,
IV-Addl. Chief Metropolitan Magistrate,
Vijayawada.
To appreciate the process of Indian criminal law, it is necessary to
understand the following important terminology:-
Bailable Offence, means an offence, which has been categorized as
bailable, and in case of such offence, bail can be claimed, subject to
fulfillment of certain conditions, as a matter of right under Section 436 of
the Cr.P.C. In case of bailable offences, the Police is authorised to give
bail to the accused at the time of arrest or detention.
Non-bailable Offence, means an offence in which the bail cannot be
granted as a matter of right, except on the orders of a competent court. In
such cases, the accused can apply for grant of bail under Section 437 and
439 of the Cr.P.C. It is important to note that the grant of bail in a non-
bailable offence is subject to judicial discretion of the Court, and it has
been mandated by the Supreme Court of India that "Bail, not Jail" should
be the governing and guiding principle.
Anticipatory Bail, under Section 438 of the Cr.P.C. means that a
person who apprehends arrest on a wrong accusation of committing a
non-bailable offence, can apply before a competent court for a direction to
police to immediately release such a person on bail in the event of arrest.
However, the grant of anticipatory bail is discretionary and dependant on
the nature and gravity of accusations, the antecedents of the applicant
and the possibility of the applicant fleeing from justice.
Cognizable Offence/case, has been defined under Section 2 (c) of
Cr.P.C., as an offence/case in which a Police Office can arrest without a
warrant.
Non-cognizable Offence/case, has been defined under Section 2 (l) of
Cr.P.C., as an offence/case in which a Police Officer has no authority to
arrest without a warrant.
Whether an offence/case is bailable or not bailable, and cognizable or
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non-cognizable, has been qualified under the 1st Table of the 1st
Schedule of Cr.P.C., which relate to the offences under IPC
Offence Cognizable Or Bailable Or
Non-cognizable Non-Bailable
Punishable With Non-cognizable Bailable
Imprisonment For
Less Than 3
Years or with fine
only
Punishable with Cognizable Non-Bailable
Imprisonment for
3 Years or more
I. “Arrest'' is not defined in Code of Criminal Procedure, 1973. According to
Legal dictionary, it conveys the meaning that ''to deprive one of his
liberty by virtue of legal authority.'' Another meaning- '' to stop'' or to
seize''. Thus, it means an exercise of the power to deprive a person of
his or her liberty; the taking or keeping of a person in custody by
legal authority, especially, in response to a criminal charge''.
II. “False Arrest” - A TORT (a civil wrong) that consists of an unlawful
restraint of an individual's personal liberty or freedom of movement by
another purporting to act according to the law.'' An action can be
instituted for the damages ensuing from false arrest, such as loss of salary
while imprisoned, or injury to reputation that results in a pecuniary loss
to the victim.
o Since no arrest is defined, still Sections 41 to 60A of Chapter V of
Cr.P.C details about Arrest and the procedures to be followed on
Arrest of a Person.
o Sections 41 to 44 contain provisions that govern the arrest of a
person by police and private citizens, while, Section 46 of Cr.P.C
explains ''Arrest how made''.
o Sec-41: When Police may arrest without warrant – Without
any order from a Magistrate or a warrant, arrest any person --
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(1) Any police officer may without an order from a Magistrate and
without a warrant, arrest any person -
(a) 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; or
(b) who has in his possession without lawful excuse, the burden of
proving which excuse shall lie on such person, any implement of
house-breaking; or
(c) who has been proclaimed as an offender either under this Code or by
order of the State Government; or
(d) in whose possession anything is found which may reasonably be
suspected to be stolen property and who may reasonably be
suspected of having committed an offence with reference to such
thing; or
(e) who obstructs a police officer while in the execution of his duty, or
who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the
Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint
has been made, or credible information has been received, or a
reasonable suspicion exists, of his having been concerned in, any act
committed at any place out of India which, if committed in India,
would have been punishable as an offence, and for which he is,
under any law relating to extradition, or otherwise, liable to be
apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made
under sub-section (5) of section 356; or
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(i) for whose arrest any requisition, whether written or oral, has been
received from another police officer, provided that the requisition
specifies the person to be arrested and the offence or other cause for
which the arrest is to be made and it appears therefrom that the
person might lawfully be arrested without a warrant by the officer
who issued the requisition.
Any officer in charge of a police station may, in like manner, arrest
or cause to be arrested any person, belonging to one or more of the
categories of persons specified in section 109 or section 110.
o In the case of Joginder Kumar vs State of UP, CrLJ, 1994, it
was held that no arrest can be made merely because it is lawful to
do so. There must be a justifiable reason to arrest. Further, in State
vs Bhera, CrLJ, 1997, it was held that the "reasonable suspicion"
and "creditable information" must relate to definite averments
which must be considered by the Police Officer himself before he
arrests the person.
Section 42 allows a police officer to arrest a person for a non-
cognizable offence, if he refuses to give his name and residence.
Section 42(1) when any person who, in the presence of a police officer,
has committed or has been accused of committing a non-cognizable
offence refuses, on demand of such officer, to give his name and
residence or gives a name or residence which such officer has reason to
believe to be false, he may be arrested by such officer in order that his
name or residence may be ascertained. However, as per sub clause (2),
the person must be released when the true name and residence of such
person have been ascertained. He may be required to execute a bond,
with or without sureties, to appear before a Magistrate if necessary.
Provided that, if such person is not resident in India, the bond
shall be secured by a surety or sureties resident in India.
Further, as per sub clause (3), should the true name and
residence of such person not be ascertained within twenty-four
hours from the time of arrest or should he fail to execute the
bond, or, if so required, to furnish sufficient sureties, he shall
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forthwith be forwarded to the nearest Magistrate having
jurisdiction
Arrest by Magistrate - Section 44(1), when any offence is committed
in the presence of a Magistrate, whether Executive or Judicial, within
his local jurisdiction, he may himself arrest or order any person to
arrest the offender, and may thereupon, subject to the provisions
herein contained as to bail, commit the offender to custody. Further, (2)
Any Magistrate, whether Executive or Judicial, may at any time arrest
or direct the arrest, in his presence, within his local jurisdiction, of any
person for whose arrest he is competent at the time and in the
circumstances to issue a warrant.
Important thing to note here is that Magistrates have wider power
than private citizen. A Magistrate can arrest on the ground of any
offence and not only on cognizable offence. As held in the case
of Swami Hariharanand Saraswati vs Jailer I/C Dist. Varanasi,
AIR 1954, the arrested person must be produced before Magistrate
within 24 hours, otherwise his detention will be illegal.
Arrest how made - Section 46 - unless the person being arrested
consents to the submission to custody by words or actions, the arrester
shall actually touch or confine the body of the person to be
arrested. Since arrest is a restraint on the liberty of the person, it is
necessary for the person being arrested to either submit to custody or
the arrester must touch and confine his body. Mere oral declaration of
arrest by the arrester without getting submission to custody or physical
touching to confine the body will not amount to arrest.
o As held in the case of Bharosa Ramdayal vs Emperor AIR 1941,
if a person makes a statement to the police accusing himself of
committing an offence, he would be considered to have submitted to
the custody of the police officer. Similarly, if the accused proceeds
towards the police station as directed by the police officer, he has
submitted to the custody. In such cases, physical contact is not
required. In case of Birendra Kumar Rai vs Union of
India, CrLJ, 1992, it was held that arrest need not be by
handcuffing the person, and it can also be complete by spoken words
if the person submits to custody.
o Section 46(2) If such person forcibly resists the endeavor to arrest
him, or attempts to evade the arrest, such police officer or other
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person may use all means necessary to effect the arrest. Thus, if the
person tries to runaway, the police officer can take actions to
prevent his escape and in doing so, he can use physical force to
immobilize the accused. However, as per Section 46(3), there is no
right to cause the death of the person who is not accused of an
offence punishable with death or with imprisonment for life, while
arresting that person. Further, as per Section 49, an arrested
person must not be subjected to more restraint than is necessary to
prevent him from escaping.
o Due to concerns of violation of the rights of women, a new provision
was inserted in Section 46(4) that forbids the arrest of women after
sunset and before sunrise, except in exceptional circumstances, in
which case the arrest can be done by a woman police officer after
making a written report and obtaining a prior permission from the
concerned Judicial Magistrate of First class.
o In Bhim Singh, MLA Vs State of J&K And others, the Hon'ble
Supreme Court held that '' the police officers should have greatest
regard for personal liberty of citizens, their mala fide, high handed
and authoritarian conduct in depriving the personal liberty of
person has to be strongly condemned.'' In this case, the Hon'ble
Supreme Court directed the Respondent no.1, the State of Jammu
and Kashmir to pay to Shri Bhim Singh a sum of Rs 50,000/- within
two months.
“Pre-Trial Detention” - Prisoners in pre-trial detention, or in remand, are
those who have been detained without a sentence and are awaiting legal
proceedings. They are also known as untried or un-convicted prisoners. In
India as many as seven out of ten Indian prisoners are pre-trial detainees.
Section 50 CrPC provides that any person arrested without warrant
shall immediately be informed of the grounds of his arrest.
Section 50-A making it obligatory on the part of the police officer to
inform the friend or relative of the arrested person about his arrest and
also to make an entry in the register maintained by the police. See
Joginder Kumar v. State of Uttar Pradesh, 1994 SCC (4) 260 and D.K.
Basu v. State of West Bengal, 1997 (1) SCC 416
Arrest and Bail : In Siddharam Satlingappa Mhetre Vs. State Of
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Maharashtra [(2011) 1 SCC 694], the Honourbale Apex Court has
observed at that, "116. Personal liberty is a very precious fundamental
right and it should be curtailed only when it becomes imperative
according to the peculiar facts and circumstances of the case."
According to Article 22 of Constitution of India, a person who is
arrested for whatever reason gets Three independent rights.
1. right to be told or informed the reasons for the arrest as soon
as an arrest is made;
2. right to be produced before a Magistrate within 24 hours;
3. right to be defended by an advocate of his choice;
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“Magistrate ROLE”
Magistrate in investigation can be understood in terms of Five steps:
1. Step – I : Soon after the registration of FIR;
2. Step – II : In cases where the arrest is effected by the Investigating
officer, on his production before the court and while deciding the
question of the validity of arrest and need for further custody – Judicial
or Police;
3. Step – III : Magisterial interventions while deciding misc. applications
for recording of statement(s) u/s 164 of the Cr.P.C, test identification
parades, etc;
4. Step – IV : Monitoring of investigation;
5. Step – V : Further investigation, post-filing of police report u/s 173 of
the Cr.P.C;
Step-I - Soon after the registration of FIR:
1. Criminal justice Administration is set into motion with the receipt of
information with respect to the commission of a cognizable offence
(Section 154 of the Cr.P.C).
2. Section 157 mandates the sending of a report to this effect to the area
Magistrate forthwith, to bring the matter to his scrutiny. A FIR (often
termed ‘occurrence report’) is to be brought to Magistrate as soon as
possible, and any delay can adversely affect the prosecution case at
trial.
3. The Andhra Pradesh Civil Rules of Practice and Circular Orders
mandates the Magistrate to make an endorsement on the FIR
regarding date/time, place of receipt & sign on the FIR legibly,
forthwith on its receipt.
Step-II - Production of the Accused before the court for the first time:
1. In cases covered u/s 41(1)(b) of the CrPC where the case relates to
offence punishable with imprisonment of 7 years or less, arrest can be
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made by the police only on satisfaction (recorded in writing) to the
effect that, the arrest is imperative for:
1. prevention of further offences;
2. proper investigation of the offence;
3. prevention of tampering or disappearance of evidence;
4. prevention of any undue influence/threat to the complainant or
witnesses;
5. ensuring His presence in the Court;
1. The recording of these reasons, therefore, is a condition precedent for
arrest. Section 41A of the CrPC provides for service of a notice on the
Accused by the Investigating Officer (‘IO’) seeking participation in
investigation and the necessary information from him.
2. If the Accused does not comply with the notice, He can be arrested,
after recording the factum of His non cooperation in writing.
3. After examining the validity of the arrest, the next point of inquiry is:
1. whether there are grounds to keep the Accused in detention [or]
whether he can be released on bail, or otherwise discharged.
2. The Hon'ble Supreme Court recently in Arnesh Kumar v. State
of Bihar has ruled that, decision to detain & remand is not a
mechanical act and a remand order has to be a reasoned order
and should reflect due application of mind. Mere mechanical
reproduction of above elements in remand application is also to
be deprecated.
(a) The Magistrate is also under an obligation to peruse the Arrest
Memo/Medical examination report of the Accused (to rule out cases of
police torture) as well as the victim (to preserve crucial medical
evidence).
(b) Magistrate to ensure production of the Accused before itself within 24
hours of arrest and communication of information to relatives/friends
about His arrest and compliance of the detailed guidelines laid down by
the Supreme Court in D.K.Basu.
(c) Case diary is an effective instrument for the Magistrate to keep a tab
on the propriety of an investigation.
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(d) When a person arrested is produced before a Magistrate for remand,
the Magistrate has to peruse and scrutinize copies of FIR/Case Diary,
which ought to be in the form of a volume, contain statements of the
witnesses recorded U/s. 161 of the CrPC and reflect the progress of
investigation.
(e) The High Court Rules make it upon the Magistrate to record reasons
for the grant of remand and to sign and date every page of the case
diaries or copies thereof as a token of His having seen them. This rule
out any fabrication, embellishment or interpolation of case diary at a
later Step.
(f) The Magistrate is duty bound to ensure Legal Representation for the
Accused at the very first production and to give Him an effective
opportunity of being heard. If the Accused does not have a private
counsel, Legal Aid from the State is to be ensured.
(g) Remand to Police Custody:
a. Detention in police custody (permissible only within 15 days of the
first remand), is usually dis-favoured by law and needs to be seen
cautiously.
(h) In view of police’s predilection for disclosure statements & confessions
(often extorted), instead of scientific and objective methods of
investigation, therefore, at the time of giving police remand, the
Magistrate has to ensure and record the imperative need for police
custody, and as to why it is necessary for an effective investigation.
(i) The need for discovery of the weapon of the offence, fruits of crime,
unearthing a larger conspiracy and facilitating the arrest of co-Accused
by disclosure are important considerations. However, mere verification
of information given by the Accused is not a ground for police custody.
(j) Similarly, the Magistrate has duty to ensure that remand is not taken
merely to make a ‘pointing out’ memo. Such pointing-out memos,
needless to state, have no statutory sanction or admissibility in a court
of law. Only when there is a certain physicality to a discovered fact:-
i. that the same falls within the definition of Section 27 of the
Evidence Act. Practice has shown that ‘Pointing out Memos’ are
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recorded with a view to circumvent the clear embargo on police
confessions under Section 25 of the Evidence Act, and to permit a
rather dangerous inclusion of incriminating facts through a
indirect route.
(k) Magistrates to remember that Police custody ought not to be given at
the drop of a hat and at the mere asking of the police.
(l) Magistrate to scrupulously ensure medical examination of the Accused
before and after the grant of police custody, so as to rule out torture at
the hands of the police.
(m) In many a cases the injuries on the person of the Accused are
suppressed in the Medical Certificates. In such cases, the Magistrate
may order a fresh medical examination of the Accused by a team of
doctors at a reputed and independent medical institution and entrust
the safety of the Accused personally to a higher police functionary.
(n) Release by special order in case of unjustified arrests.
a. If the arrest seems unwarranted in the facts of the case, Magistrate
can always disallow both judicial and police custody and release the
person on bail (on surety or personal bonds), or even by way of a
special order U/s. 59 of the CrPC. A more active use of this provision
is the need of the hour.
1. Special Provisions relating to juveniles:
(i) While dealing with juveniles, the Court ought to proceed strictly in line
with the principles of parens-patriae & best interests of the child and
zealously guard their welfare.
(ii)Any offender under the age 18 ought to be tried by the Juvenile Justice
Board and is not to be exposed to the rigors of ordinary criminal law
process.
(iii) Whenever a plea of juvenility is taken by an Accused, the age
determination enquiry has to be conducted by the court only, in
accordance with the provisions of Juvenile Justice (Care and Protection
of Children) Act, 2000. Where, in the opinion of the Magistrate, the
Accused is patently (from the physical appearance or otherwise) below
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18, the court shall immediately transfer the child to observation home
and order production of the juvenile before the Juvenile Justice Board
concerned.
(iv) In other cases, the inquiry has to be conducted by the court, and
if the Accused turns out to be a juvenile, he shall be ordered to be
transferred to observation home the same day and if person has turned
an adult on the date of such order, in that case, to a place of safety.
(v) Contrary to popular misconceptions, an age inquiry, envisaged under
the Act is a summary inquiry to be completed within 30 days of
Juvenile Justice (Care and Protection of Children) Act, 2000 and not a
full blown investigation or trial. Oral evidence need not be recorded to
arrive at a finding. Lengthy examination/cross examinations are also
out of the question, unless of course, a vexed question of fact arises. The
input for such an inquiry may be prima face opinion on the basis of
documents.
(vi) In case of person arrested being within 18 to 21 years of age, the
Investigating officer of the case has to mandatorily prepare an age
memo and collect proof regarding the age of the Accused, and court also
has to conduct an age inquiry in such cases, if juvenility is pleaded.
Step – III – Magisterial interventions while deciding applications for
recording of statement u/s 164 of the Cr.P.C/Test Identification
Parade.
(a) Coming back – Section 164 allows recording of statement of witnesses
& confessions by the Magistrate. The statement of witnesses under this
section is recorded on oath.
(b) The underlying objective is to preserve evidence, get an account of the
testimony of the witness at the first instance (while it is still fresh), and
to prevent retraction of testimony at a later Step. Another upside of a
statement recorded U/s. 164 of the CrPC is that the same can be used
for corroboration of the witness’s testimony at trial, thereby
strengthening the veracity of prosecution case.
Step – IV – Monitoring Of Investigation
Apart from the magisterial interface with the investigation, as
discussed above: The question as to how a case has to be investigated
has been traditionally considered to be the sole prerogative of the
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investigating officer, premised on.
There is no provision in CrPC that allows the Magistrate to monitor an
investigation has been debunked by the Supreme Court conclusively in
Sakiri Vasu case wherein such power has been read within Section
156(3) of the CrPC.
Power to direct investigation U/s. 156(3) of the CrPC is wide enough to
include all such powers in a Magistrate which are necessary for
ensuring a proper investigation. Therefore, in appropriate cases, the
victim, complainant or a witness can approach the court seeking
necessary directions to the police and supervision of investigation. The
fact that he ought not to remain a mute spectator to the distortions and
inadequacies of investigations, but make meaningful interventions.
Step – V – Further investigation after filing of police report.
Magisterial vigil does not terminate on the filing of the police report on
the conclusion of the investigation and the court is not bound to accept
the results of an investigation conducted by the police.
In the case the police conclude that, no case is made out against the
Accused, the Magistrate has to issue a notice to the informant/victim
and hear him out. After hearing the informant, the court can,
notwithstanding the closure report, choose to proceed with the matter,
as a case based on police report or even on a prior complaint.
Section 173(8) of the CrPC expressly lays down such a course of action.
However, the section does not enlist considerations that will govern the
exercise of such power. Illustrative cases where further investigation
may be ordered are-:
i. where the police acts in a partisan manner to shield the real
culprits and the investigation has not been done in a proper and
objective manner but is tainted, non-examination of crucial
witnesses, clearing of doubts and to substantiate the prosecution
case.
ii. To conduct fair, proper and an unquestionable investigation is
the obligation of the investigation agency and the court in its
supervisory capacity is required to ensure the same.
Having said that, further investigation is to be distinguished from re-
investigation or a de-novo investigation, which is not permissible.
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In cases where vital evidence has been disregarded by the police, the
court can order further investigation that aspect. The result of the
further investigation is called a ‘supplementary report’ and can
supplement the primary police report, already on record.
The earlier investigation is not wiped-off from the record and the
subsequent investigation only supplements the earlier investigation.
The Magistrate also cannot order a further investigation by a different
agency (agency other than the original investigating agency) either, as
that will amount to re-investigation.
Only the higher courts have the power to order reinvestigation by a
different agency, such as the CBI. Having said that, in such cases, the
Magistrate is not powerless, if the Magistrate suspects foul play in
investigation, he can always pass orders for senior officers to supervise
the investigation personally and file periodic compliance reports, in a
process akin to a continuing investigation.
Conclusion:
The Hon’ble Apex Court has framed very strict & obligatory guidelines
in the light of Judgments of Joginder Kumar & Arnesh Kumar to adhere
before any person can be arrested. Order of Remand is a judicial order to be
passed on application of mind to the contents of the Remand report submitted
by the investigating officer. Perusal of the case diary is a must before remand
of any kind – be judicial or police custody. It is a dereliction of duty if the
Magistrate did not ask for and peruse the case diary before he authorizes any
custody. Trilochan Singh v. State, Cri. Misc. (Main) No. 298 of 1981, decided
on 17th July, 1981 (reported in 1981 Cri. LJ 1773). The Magistrate before
whom case diary is produced has to scrutinize the act of Police and has to see
whether the act of arrest was legal, proper and other formalities required by
law had been complied with.
The Magistrate has to be watchful as the power to arrest without
warrant on suspicion U/s. 41 of CrPC is liable to be abused. The Magistrate
should not authorize detention of an accused to any custody mechanically in
routine. A remand to Police custody should not be given unless the officer
making the Application is able to show definite and satisfactory grounds,
since, great care has now been taken to see that the accused persons are not
unnecessarily remanded.
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Personal feelings of the police officer or vague surmise would not be
enough. The word “reasonable” brings in the requirement of honest belief
based on facts. The words “reasonable” and “credible” in section 41 of CrPC,
1973, have reference to the mind of the Police officer receiving information
and such information must afford sufficient material for the exercise of an
independent judgment at the time of making arrest and sending the Accused
to Remand.
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ARREST AND PRE-TRIAL DETENTION ROLE OF JUDGE/MAGISTRATE
By
Smt G. Chandramowleswari,
Prl. Junior Civil Judge,
Machilipatnam.
Our Indian Constitution guarantees that every person should have a
right to enjoy, respect for their life and liberty. Article 21 of Indian
Constitution guarantees that 'No person shall be deprived of his life or his
personal liberty except according to procedure established by law'. So, without
any efficient mechanism and effective legal remedies, it is highly difficult to
protect the guarantees in respect of life and liberty envisaged in the
Constitution of India.. Article 22 specifies that protections to which each
arrested person is entitled by law, namely the right to be informed the grounds
for his/her arrest as soon as possible after being taken in to the custody, the
right to consult and be represented by legal practitioner of his/her choice and
right to be produced before Magistrate within 24 hours of arrest and not to be
detained beyond 24 hours without approval of Magistrate. So it casts an
obligation on detaining authority to show that the detention is in accordance
with these Constitutional imperatives.
The key components engaged in criminal administration of justice are
the courts, police, prosecution and defence. Administering the criminal justice
satisfactorily in a democratic society governed by rule of law and guaranteed
Fundamental Rights is a challenging task. The Judge is a custodian of all this.
Powers of arrest to Magistrate Section 44:
A Magistrate can arrest when a person within his jurisdiction who commits a
crime in his presence and through the issue of a warrant of arrest.
Powers of arrest to police
Section 41(1):
a. The person has been “concerned in a cognizable offence, or against
whom a reasonable complaint has been made,...credible
information has been received, or a reasonable suspicion exists”.
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b. The person has “any implement of house-breaking” in his/her
possession without a lawful excuse.
c. A person is declared a proclaimed offender under the Code of
Criminal Procedure or by State Order.
d. Anything that an officer reasonably suspects is stolen property in
the possession of an individual whom the officer reasonably
suspects to have committed an offence related to that property.
e. A person attempts to escape from legal custody or obstructs a
police officer in the execution of his/her duty.
f. A person is reasonably suspected of deserting the armed forces.
g. Any situation involving a released convict breaching specific rules
laid out in the Code of Criminal Procedure.
h. An officer receives a proper requisition from another officer, which
indicates the person to be arrested and the offence committed, and
where it appears that the arrest will be lawful without a warrant.
Section 41 (2):
Finally, any officer in charge of a police station may arrest, or have
arrested, any person whom the officer in charge reasonably believes is
concealing himself/herself with the purpose of committing an offence, or if that
person is a habitual offender.
The Hon’ble Apex Court has discussed at length about the applicability
of Section 41 CrPC and also framed guidelines as to how an officer should act
while making an arrest in a case of Arnesh Kumar v. State of Bihar1 held as
follows: “Our endeavour in this judgment is to ensure that police officers do
not arrest accused unnecessarily and Magistrate do not authorise detention
casually and mechanically. In order to ensure what we have observed above,
we give the following direction:”
Section 41A of Cr.PC aimed to avoid unnecessary arrest. In above case
it was observed that the Magistrate has to be first satisfied that the arrest
1 (2014) 8 SCC 273
19
made is legal and it is held in accordance with law and all constitutional rights
of a person is satisfied before he remanded to judicial custody. If the arrest is
effected by the police officer does not satisfy the requirements of section 41 of
Cr.PC, Magistrate concern has a duty not to authorize his further detention
and release the accused.
Procedure for Arrest
As per Section 46(1) Cr.PC, the officer making the arrest must
“actually touch or confine the body of the person to be arrested,” unless the
person submits to custody after a verbal command. The arresting officer may
use all means necessary to effect the arrest of a person who forcibly resists or
attempts to evade arrest, as given under section 46(2)CrPC. Section 46(3) CrPC
says, in the course of making an arrest, the police have no power to cause the
death of a person who is not accused of an offence punishable by death or life
imprisonment.
Seticon 50(1) CrPC mandates every officer or other person arresting any
person without a warrant shall immediately inform the arrested person of the
full particulars of the offence for which he/she is arrested or other grounds
for such arrest.
Section 50(2) CrPC enunciates that Where a police officer arrests any
person without warrant, other than a person accused of a non-bailable
offence, he shall inform the person that he is entitled to be released on bail
and that he may arrange for sureties.
Section 50(A)(1) Cr.PC enables that Every police officer making an arrest
is obliged to give information regarding the arrest and place where the
arrested person is held to any of his friends, relatives or any other person
nominated by him.
In the case of D.K. Basu v State of West Bengal2 the Hon’ble Supreme
Court of India has laid down 11 specific requirements and procedure that the
2 . AIR 1997 SC 610
20
police and other agencies have to follow for the arrest, detention and
interrogation of person. These are as follows:-
1. Police arresting and interrogating suspects should wear “accurate, visible
and clear” identification and name tags, and details of interrogating
police officers should be recorded in a register.
2. A memo of arrest must be prepared at the time of arrest. This should
have the time and date of arrest, be attested by at least one witness who
may either be a family member of the person arrested or a respectable
person of the locality where the arrest was made and be counter-signed
by the person arrested.
3. The person arrested, detained or being interrogated has a right to have a
relative, friend or well-wisher informed as soon as practicable, of the
arrest and the place of detention or custody. If the person to be informed
has signed the arrest memo as a witness this is not required.
4. Where the friend or relative of the person arrested lives outside the
district, the time and place of arrest and venue of custody must be
notified by police within 8 to 12 hours after arrest. This should be done
by a telegram through the District Legal Aid Authority and the concerned
police station.
5. The person arrested should be told of the right to have someone informed
of the arrest, as soon as the arrest or detention is made.
6. An entry must be made in the diary at the place of detention about the
arrest, the name of the person informed and the name and particulars
of the police officers in whose custody the person arrested is.
7. The person being arrested can request a physical examination at the
time of arrest. Minor and major injuries if any should be recorded. The
"Inspection Memo" should be signed by the person arrested as well as the
arresting police officer. A copy of this memo must be given to the person
arrested.
21
8. The person arrested must have a medical examination by a qualified
doctor every 48 hours during detention. This should be done by a doctor
who is on the panel, which must be constituted by the Director of Health
Services of every State.
9. Copies of all documents including the arrest memo have to be sent to the
Area Magistrate (laqa Magistrate) for his record.
10. The person arrested has a right to meet a lawyer during the
interrogation, although not for the whole time.
11. There should be a police control room in every District and State
headquarters where information regarding the arrest and the place of
custody of the person arrested must be sent by the arresting officer. This
must be done within 12 hours of the arrest. The control room should
prominently display the information on a notice board. These
requirements were issued to the Director General of Police and the Home
Secretary of every State. They were obliged to circulate the requirements
to every police station under their charge. Every police station in the
country had to display these guidelines prominently. The judgment also
encouraged that the requirements be broadcast through radio and
television and pamphlets in local languages be distributed to spread
awareness.
In addition to these requirements other rights and rules to be followed, such
as:
1. The right to be informed at the time of arrest of the offence for which the
person is being arrested.
2. The right to be presented before a magistrate within 24 hours of the
arrest.
3. The right not to be ill-treated or tortured during arrest or in custody.
4. A boy under 15 years of age and women cannot be called to the police
station only for questioning.
22
As Per Section 51(2) CrPC, If the person arrested is a female, the
searching police officer must also be a female and perform the search “with
strict regard to decency”.
Section 46(4) says, Women are specially protected from being arrested
between sunset and sunrise, except in exceptional circumstances when prior
permission must be obtained from a Judicial Magistrate.
Police personnel making an arrest must wear accurate and visible
identification tags showing their name and designation.
In Joginder Kumar v State of UP3, the Hon’ble Court said: “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 other; on
weighing and balancing the rights of the single individual and those of
individuals collectively….”
The Hon'ble Apex Court of India also held in this case that a police
officer “must be able to justify the arrest apart from his power to do so”. It went
on to declare that “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.” The Supreme Court then went on to specify 3 requirements to
ensure the protection of every individual’s constitutional rights:
If an arrested person so wishes, he/she may inform a person of
his/her choosing of the fact of his/her arrest and her location
A police officer must inform an arrested person of his/her right to
inform a person of her choosing of her arrest
Officials must keep a record of the arrested person’s request and to
whom it was made.
3 AIR 1994 SC 1349
23
In Pranab Chaterjee vs State of Bihar4 the Hon’ble Supreme Court
held that section 50 of Cr.PC is mandatory. If particulars of offence are not
commercial to an arrested person, his arrest and detention are became illegal.
Right to Be Brought Promptly Before a Magistrate
Article 22(2) of the Constitution guarantees that “every person who is
arrested and detained in custody shall be produced before the nearest
Magistrate within a period of twenty-four hours of such arrest excluding the time
necessary for the journey from the place of arrest to the court of the Magistrate
and no such person shall be detained in custody beyond the said period without
the authority of a Magistrate”
Section 56, 57 and 76 CrPC specifies the procedure that the police must
follow when making an arrest or detaining an individual. A police officer
making an arrest without a warrant must take or send the arrested person to a
Magistrate or an officer in charge of a police station without undue delay, but
not beyond 24 hours unless there is a special order by a Magistrate.
Section 167(1) & (2) CrPC: If a person is arrested and detained in custody
and it appears that the investigation cannot be completed within the
designated 24 hours, and there are grounds for believing that the accusation or
information is well-founded, then the police officer in charge of the police
station or the investigating police officer, if not below the rank of sub inspector,
must transmit a copy of the required diary entries along with the accused
to the nearest Magistrate. The Magistrate to whom the accused and the
information are forwarded may authorise the detention of the accused in the
custody he/she deems appropriate for not more than 15 days, whether or not
the Magistrate has jurisdiction to try the case.
Section 167(3) & (4) CrPC: If the Magistrate does not have jurisdiction
to try the case or to commit it for trial and finds that further detention is
unnecessary, he/she may forward the accused to a Magistrate with the
4 1970 (3) SCC 926
24
necessary jurisdiction. While doing this, the Magistrate must also transmit all
the relevant information, including diary entries, to the new Magistrate. As a
safeguard against prolonged detention and violence in custody, no magistrate
can authorise detention in any custody unless the accused is produced before
him. Where the Magistrate authorises police remand beyond the statutory 24
hours he/she must record the reasons in writing. The copy of this reasoned
order must be sent to the Chief Magistrate.
Section 167(5) & (6) CrPC: If in a summons case triable by a Magistrate,
the investigation is not concluded within six months from the date on
which the police arrested the individual, the Magistrate must make an order
stopping the investigation unless the investigating officer convinces the
Magistrate of some special reasons to extend the investigation. The Sessions
Judge may overrule a Magistrate’s order to stop the investigation in such a
case if he/she is convinced through a separate explanation that there are
grounds for further investigation.
In the case of Chiguluri Krishna Rao, President, the Bezawada Bar
Association v Station House Officer, II Town Police Station and Ors.5 The
High Court of Andhra Pradesh held that, in case of arrest by police, there is no
choice for anyone, neither the courts nor the police, but to apply Article 22(1)
and (2) in letter and spirit, which would mean that an arrested person must:
1. Be informed of the reasons for his arrest as soon as possible;
2. Shall not be denied his right to consult a lawyer of his choice;
3. Be brought before a Magistrate within 24 hours, excluding travelling
time.
No difficulties that the police or magistracy may face, even the absence of
infrastructure, “can be reason for violating the mandate of Article 22 of the
Constitution. Absence of requisite infrastructure cannot be a reason for
defeating the fundamental rights of the detenues”
5. 2006(1) ALT 259
25
In case of Francis Voralie Mullain vs Administrates Union Territory
of Delhi6: it was held that “Any form of torture, cruel, in human or degrading
treatment or punishment, offensive to human dignity, violates the all important
right to life and personal liberty under article 21 of Constitution is plainly be
unconstitutional and violation of article 14 and 21 of Indian Constitution.”
In case Nilabaki Behra vs State of Orissa7 wherein it is held that “in
addition to any civil remedy in tort, victims and families of them have a right to
monetary compensation under public law.”
Magistracy to Guard Against Illegal Detentions
Personal liberty is paramount. Any deprivation of this, however short or
temporary, has to be justified. The Magistrate is the main bulwark against
unnecessary detention and abuse of power and process. It is his/her duty to
guard citizens vigilantly against needless and illegal detentions.
There are no exceptions under the Criminal Procedure Code regarding
bringing an accused before a Magistrate within 24 hours. The police officer,
who fails to comply with this rule, is guilty of the offence of illegal
detention/confinement. The Magistrate’s duty is to take note of that and act on
it. It cannot be ignored or condoned.
At the first production before him, the Magistrate must assure himself/
herself that all the documents which must accompany the accused are
presented to him. These include the first information report, the arrest memo,
the inspection memo, the medical examination certificate, and the case diary
along with the general diary entry number. Later, there are also documents,
6 . AIR 1981 SC 746
7 . 1993 SCC 746
26
specifically the case diary, that indicates the pace and directions the
investigations are taking. The presence of these papers at this time is a factual
necessity that must be complied with.
It is mandatory at first production for all the papers to be available. And
it is mandatory for the Magistrate to peruse them. In the absence of a careful
examination of a full set of papers, there can be no proper application of mind
and the process of remand becomes a mechanical exercise for the convenience
of the police and in violation of the rights of the accused. Such remands are
likely to be challenged and set aside.
The guidelines to be testified before accepting a remand:
4. A remand to police custody of an accused person should not
ordinarily be granted unless there is reason to believe that material and
valuable information would thereby be obtained, which cannot be
obtained except by his remand to police custody.
5. Where a remand is required merely for the purpose of verifying a
statement made by the accused, the Magistrate should ordinarily
remand the accused person to magisterial custody.
6. If the Magistrate believes that it is not necessary for the purposes of
the investigation to remand the accused in police custody, he should
place the accused person in magisterial custody. In case he has no
jurisdiction to try the offence charged, he should issue orders to forward
the accused person to a Magistrate having the jurisdiction.
7. If the Magistrate is of the view that the police not only require more time for
their investigation, but that for some good reason, they require the accused
person to be present with them during that investigation, the Magistrate may
remand him to police custody, but while doing so, he must record the reasons
for his order
27
If the criminal jurisprudence is keenly seen, a person has to be
arrested in three broad conditions. They are
6. If there is a chance of committing same offence by the accused.
7. If there are chances of influencing the witnesses by the accused.
8. If there are chances of non appearance of accused for the trial.
The above mentioned conditions are the criterian for even granting bail to
an accused. If the accused could satisfy the court that he would not fall in any
one of the conditions dealt above, he may be granted bail, if not, no.
Cases Where Bail Can be Taken:
Bailable offences are those in which the police can grant bail themselves.
If the police then produce the person before a Magistrate, as they usually do,
the Magistrate must grant bail, with or without conditions, as a matter of
course. The arrested person can seek bail at any point of the proceedings. Bail
will be granted with or without conditions, and on an assurance of future
appearances.
Section 436(1) CrPC: Where the court is satisfied that a person is too
poor to provide a money guarantee and is also unable to provide any other
sureties to stand up for him, the court may, at its discretion, release the person
on his/her own personal bond that he/she will be available to appear at all
trial hearings. Where the offence is bailable, the court has no discretion, and
must release him/her on his/her bond within seven days of the arrest.
Section 436 A CrPC: There are three further circumstances under
which bail must be granted by law and cannot be refused. An indefeasible right
to be released on bail arises where a person has been held in custody for a
period which amounts to half or more of the maximum sentence he would have
served for the offence he has been accused of, if he were found guilty, must be
released on bail under a personal bond with or without sureties
Section 167 (2)(a)(i)&(ii)CrPC: Where a person is accused of an offence
punishable with death, life imprisonment or imprisonment for a term of not
28
less than ten years, and no charge sheet has been filed within 90 days of his
arrest, whether or not investigations have been completed, the court must
release the arrested person on bail and cannot authorise any further detention
beyond 90 days. Similarly, in every other case if ongoing investigations stretch
beyond 60 days and no charge sheet has been filed, the accused must be
released on bail and cannot be detained beyond 60 days.
Section 437 CrPC: While bail is the rule, in very serious offences bail
should not be granted to the accused where there appear “reasonable grounds
for believing that he has been guilty of an offence punishable with death or
imprisonment for life”, or if the accused has been previously convicted of an
offence punishable with death, life imprisonment, or imprisonment for seven
years or more; or has been previously convicted on at least two occasions of a
cognisable offence punishable with imprisonment for three years or more but
not less than seven years. However, in these circumstances, persons below 16
years, women and infirm people may be released on bail. Equally, the court
may also release on bail a person accused of a cognisable offence and
previously convicted of an offence punishable with death or life imprisonment,
if it is satisfied that it is just and proper to do so. However, the court is bound
to hear the Public Prosecutor before releasing such a person on bail.
While dealing with the issue of fixing the amount of bond for releasing
the accused on bail, the Hon'ble Apex Court had held as follows in the case of
Hussainara Khatoon v State of Bihar8
“It was a travesty of justice that people spend extended time in custody,
not because they are guilty but because the courts are too busy to try them
and the accused are too poor to afford bail. Quite often the bail amount fixed
by the magistrate is “unrealistically excessive” and the poor cannot arrange for
it. The Court asserted that “courts must abandon the antiquated concept
under which pre-trial release is ordered only against bail with sureties.”
8 1980 1 SCC 84
29
Releasing all persons incarcerated, the Court gave the following
directives: when satisfied of the accused’s roots in community the Magistrate
should release the accused on a personal bond without sureties and that the
bail amount should notbe based merely on the nature of the charge but should
be fixed keeping in mind the individual financial circumstances of the accused
and the probability of his absconding.
In Motiram v State of Madhya Pradesh9 the Hon'ble Apex Court held as
“it shocks one’s conscience to ask a mason to furnish a surety of Rs. 10,000 for
a release on bail”. The Court also expressed anguish that the Magistrate
demanded surety from the appellant’s own district and wondered:
“What is a Malayalee, Kannadiga, Tamilian or Andhra to do if arrested
for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair,
Pahalgam or Chandni Chowk?”
Directing the release of the petitioner on his own bond for Rs. 1,000 the Court
said that bail should be given liberally to poor people simply on a personal bond
if reasonable conditions are satisfied. The bail amount should be fixed keeping
in mind the financial circumstances of the accused and the accused should not
be required to produce a surety from the same district especially when he/she is
a native of some other place.
Conditions for granting the Bail:
While a detailed examination of evidence and elaborate documentation of
the merits of a case are not usually necessary, there is a need to provide clear,
reasoned orders about why bail is granted or rejected. Courts need to take
account of following Whilst fixing bail/sureties:
1. The nature of the accusation;
2. The gravity of the crime;
3. The circumstances of the individual concerned;
4. Whether further detention is at all necessary;
9 1978 4 SCC 47
30
5. The risk of flight;
6. The risk of subverting or tampering with evidence;
7. The nature of the evidence in support of the accusation;
8. The severity of the punishment which conviction would entail; and
9. Whether the sureties are independent, or indemnified by the accused
person.
If a Magistrate is satisfied after making an enquiry into the condition and
background of the accused that the accused has his roots in the community
and is not likely to abscond, he can safely release the accused on order to
appear or on his own recognizance.
When the accused is too poor to find sureties, there is no point in
insisting on his furnishing bail with sureties, as it will only compel him to be in
custody with the consequent handicaps in making his defence.
The only reason for remaining in custody cannot be poverty. The law
itself has recognized this and now requires the release on the personal bond of
indigent under trials. This course of action should be resorted to in most cases
where there is no substantial risk of non-appearance of the accused.
Legal Aid to the Accused at State Expense in Certain Cases:
Every court should appoint an attorney to the accused at the expense of
the state when he “is not represented by a pleader, and where it appears to the
court that the accused has not sufficient means to engage a pleader”. With the
approval of the state government, the High Court may fashion the rules that
will provide for the mode of selecting lawyers, the “facilities” allowed to the
lawyers, and the fee to the appointed lawyers are to receive.
The Legal Services Authorities Act, 1987 mandates the setting up of
legal aid authorities and committees at the state, district and block
(taluk/tahsil) levels which are expected to maintain a panel of lawyers to
provide free services to needy persons. Section 12 of the Act provides that every
person who has to file or defend a case will be entitled to legal aid, if that
person is:
31
6. A member of a Scheduled Caste or Scheduled Tribe;
7. victim of trafficking in human beings or beggar;
8. A woman or a child;
9. A mentally ill or otherwise disabled person;
10. person under circumstances of undeserved want such as being a
victim of a mass disaster, ethnic violence, caste atrocity, flood,
drought, earthquake or industrial disaster;
11. industrial workman;
12. n custody, including custody in a protective home; or
13. receipt of an annual income less than rupees nine thousand or
such other higher amount as may be prescribed by the state
government, if the case is before a court other than the Supreme
Court, and less than rupees twelve thousand or such other higher
amount as may be prescribed by the central government, if the case is
before the Supreme Court.
In, Khatri (II) v State of Bihar10 the Hon'ble Supreme Court reaffirmed
that the right to legal representation begins when the accused is first brought
before a Magistrate and not merely at the trial stage. It is at this stage that the
accused is at highest risk, and thus he is entitled to legal representation. The
Court remarked that it would be unfair to expect an illiterate person to ask for
representation because he most likely did not even know that he was entitled
to this right. Therefore, the Court held that magistrates and judges must
inform every accused person that he is entitled to free legal services at the
state’s expense.
In Nandini Satpathy v P.L. Dani11 the Hon'ble Supreme Court held that
simply because every arrested person has the right to an attorney of his choice,
it does not necessarily mean that people not under arrest or in custody can be
10 . 1981 1 SCC 627
11 AIR 1978 SC 1075; (1978) 2 SCC 424,
32
denied that right. The Court went on to say: “The spirit and sense of Article
22(1) is that ‘it is fundamental to the rule of law that the services of a lawyer
shall be available for consultation to any accused person under circumstances
of near custodial interrogation. Moreover, the observance of the right against
self incrimination is best promoted by conceding to the accused the right to
consult a legal practitioner of his choice’.”
The Legal aid for the accused must be provided from the stage of
remand. No accused shall be deprived of his legitimate right to have a legal aid.
This was reiterated by the Hon'ble Supreme Court in the case of Md.Ajmal
Md.Amir Kasab @Abu ... vs State Of Maharashtra on 29 August, 2012.
The Indefeasible right of the accused to have the legal aid at the cost of
state is also dealt in the case of State (NCT of Delhi) v. Navjot Sandhu and in
the case of Kartar Singh v. State of Punjab.
Conclusion:
No person can deprive such right of an individual unless there is strong
reason and of course, under due process of law. Depriving a person of liberty
is a last resort. Always remember that person is innocent until guilty proved.
The dominant priciple in Democratic society is “Bail, but not Jail”. Joginder
Kumar's case12, D.K.Basu's case13 and Arnesh Kumar's case14 are very
prominent decisions in respect of arrest and are most relevant decisions to
follow for the best administration of justice. Exceptions are how ever can be
dealt in accordance with the law. The duty of the police officer and the
Judge/Magistrate is very crucial in safeguarding the interests of the persons
and their role in justice delivery system is pivotal in dealing with arrest,
12 AIR 1994 SC (2) 260
13 1997 (1) SCC 416
14 2014 (8) SCC 273
33
remand and bail. No individual can be even deprived of his right to have legal
aid and it is also established law that the person has to be provided free legal
aid at the cost of state when he is unable to get it for himself. The Magistrate
being instrumental to the justice delivery system has a prime role in dealing
with the personal liberty of an accused and he has to take all precautionary
measures while remanding him to judicial custody and granting bail.
34
ARREST AND PRE-TRIAL DETENTION
By
Smt M. Satya Kumari,
Addl. Judicial First Class Magistrate,
Gudivada.
The three major criminal statues, namely the Code of Criminal
Procedure, the Indian Penal Code and the Indian Evidence Act cannot operate
de hors or outside the fundamental rights given in the Constitution. That is to
say, that the three do not function in a vacuum. Their operation is governed by
the standards and limitations laid down in the Constitution. The
Constitution’s normative framework defines the everyday working of the court
and forms the benchmark by which the performance of all the officers of the
court, the prosecutor, the defence counsel and most importantly the judge will
be evaluated. The quality of a trial will be judged by the measure of compliance
with constitutional norms and it is the presiding officer who ha sthe onerous
duty of ensuring that fair trial norms are strictly adhered to without fear or
favour. From this comes the old saying that justice must nor only be done but
be seen to be done.
Everywhere, the treatment of suspects, accused and detainees is
governed by the need for fairness. Just as the notion prevails that the
punishment must fit the crime the laws governing the administration of justice
are designed both substantively and procedurally to balance the interests of all
the state and the individual, the accused and the victim, the prosecution and
defence. Thus, safeguarding human liberty is a prime constitutional value and
35
the law of arrest is one of balancing individual rights, liberties and privileges,
on the one hand, and individual duties, obligation and responsibilities on the
other;
Arrest and detention of a person in police custody can cause incalculable
harm to the reputation and self esteem of the person. Therefore, arrests
should not be made in a routine manner on the mere allegation that a person
has committed an offence. Arrests must only be made after reasonable
satisfaction that the complainant has adequate substance to ground a sensible
suspicion that an offence has been committed by that person.
Right to Freedom from Arbitrary Arrest and Detention
Freedom from arbitrary arrest and detention means that no one may be
deprived of his or her personal liberty except through means that are “fair, just
and reasonable”. The state cannot take away life or personal liberty by the
mere enactment of a law. The law itself, its procedures and its actual
implementation must all pass the test of being “fair, just and reasonable”. If
they do not, then the actions of the state and its agents are liable to be
considered arbitrary and unjust and will be struck down by the courts.
Domestic law
Police and Magistrate’s powers of arrest are clearly laid out in the Code of
Criminal Procedure. This creates two types of offences – cognizable and non
cognizable. Cognizable offences are of a more serious nature. Non cognizable
36
offences are of a somewhat less serious nature, where the apprehension that
the accused may commit more offences and pose an instantaneous danger to
society is not so high. Where the person is suspected of committing a
cognizable offence, and in certain specified circumstances, the police are
empowered to carry out an arrest without a warrant from a judicial magistrate.
In other instances (non cognizable offences), arrests can only be carried out
after obtaining a warrant from a magistrate. The implication of this distinction
is that in some matters, a judicial mind must be applied before an arrest can
be justified, while in others, the police have the discretion to arrest. However,
it is equally necessary for the arresting authority to apply its mind.
There is a common misconception – both within the public and the police
– that the latter have unlimited powers to arrest. But he power to arrest is
conditioned by the limitations mentioned above and those placed on it by the
procedure for arrest. Repeated disregard of these procedures has led to
concern about the numbers and reasonableness of arrests and to repeated
Supreme Court pronouncements and statutory amendments giving content to
the freedom from arbitrary arrest, by carefully detaining every step of the
procedure.
The Fundamental Protection of Life and Liberty Under the Constitution
Article 21 of the Indian Constitution guarantees that “no person shall be
deprived of his life or his personal liberty except according to procedure
established by law”.
37
Article 22 specifies the protections to which each arrested person is
entitled by law, namely the right to be informed of the grounds for his/her
arrest as soon as possible after being taken into custody; the right to consult
and be represented by a legal practitioner of choice, and the right to be
produced before a Magistrate within twenty four hours of arrest and not to be
detained beyond twenty four hours without the approval of a Magistrate.
Personal liberty guaranteed under article 21 is sacrosanct, in that it casts an
obligation on any detaining authority to show that the detention is in
accordance with these constitutional imperatives.
Right to Be Brought Promptly Before a Judge or Judicial officer
The fundamental principle in relation to the power of arrest is that it is
granted strictly for the purpose of bringing a suspect before a court of law. The
power is coupled with the duty to produce the arrested person before a judicial
authority at the very earliest. This means that after arrest, a person cannot be
held by the police on any grounds whatsoever beyond the statutory time limit.
Any further detention beyond that must only be on the Magistrate’s order. The
Magistrate’s determination about the need to hold the person in custody, and
the duration of that custody, must be based on clear necessity, with personal
liberty being a paramount consideration in that determination.
Arrested person to be taken before a Magistrate of Officer in charge of a
38
police station
The Criminal Procedure Code specifies the procedures that the police must
follow when making an arrest or detaining an individual. A police officer
making an arrest without a warrant must take or send the arrested person to a
Magistrate or an officer in charge of a police station without under delay, but
not later than 24 hours unless there is a special order by a Magistrate.
Procedure when Investigation cannot be completed within twenty four
hours
If a person is arrested and detained in custody and it appears that the
investigation cannot be completed within the designated 24 hours, and there
are grounds for believing hat the accusation or information is well founded
then the police officer in charge of he police station or the investigating police
officer if not below the rank of sub inspector, must transmit a copy of the
required diary entries along with the accused to the nearest Magistrate. The
Magistrate to whom the accused and the information are forwarded may
authorize the detention of the accused in the custody he/she deems
appropriate for not more than 15 days, whether or not the Magistrate has
jurisdiction to try the case.
If the Magistrate does not have jurisdiction to try the case or to commit it
for trial and finds that further detention is unnecessary, he/she may forward
the accused to a Magistrate with the necessary jurisdiction. While doing this,
39
the Magistrate must also transmit all the relevant information including diary
entries, to the new Magistrate. As a safeguard against prolonged detention and
violence in custody, no magistrate can authorize detention in custody unless
the accused is produced before him. Here the Magistrate authorizes police
remand beyond the statutory 24 hours he/she must record the reasons in
writing. The copy of this reasoned order must be sent to the Chief Magistrate.
If in a summons case triable by a Magistrate, the investigation is not
concluded within six months from the date on which the police arrested the
individual, the Magistrate must make an order stopping the investigation
unless the investigating officer convinces the Magistrate of some special reason
to extend the investigation. The Sessions Judge may overrule a Magistrate’s
order to stop the investigation in such a case if he/she is convinced through a
separate explanation that there are grounds for further investigation.
The First Remand
Recognizing that Magistrates too often mechanically allow remand of the
accused under sections 167 or 309 of Code, without satisfying themselves that
there are reasonable grounds for such remand, the Bombay High Court, in a
circular to all Magistrates, laid down the following guidelines.
1. A remand to police custody of an accused person should not ordinarily
be granted unless there is reason to believe that material and valuable
40
information would thereby be obtain, which cannot be obtained except by his
remand to police custody.
2. Where a remand is required merely for the purpose of verifying a
statement made by the accused, the Magistrate should ordinarily
remand the accused person to magisterial custody.
3. If the Magistrate believes that it is not necessary for the purpose of
the investigation to remand the accused in police custody, he should
place the accused person in magisterial custody. In case he has no
jurisdiction to try the offence charged, he should issue orders to
forward the accused person to a Magistrate having the jurisdiction.
4. If the Magistrate is of the view that the police not only require more
time for their investigation, but that for some good reason, they
require the accused person to be present with them during that
investigation, the Magistrate may remand him to police custody, but
while doing so, he must record the reason for his order.
Cases where Bail can be taken
Bailable offences are those in which the police can grant bail themselves.
If the police then produce the person before a Magistrate, as they usually do,
the Magistrate must grant bail, with or without conditions, as a mater o f
course. The arrested person can seek bail at any point of the proceedings. Bail
will be granted with or without conditions and on a assurance of future
41
appearances. These assurances can be underwritten by money forfeits or
assurances from the arrested person or their guarantors.
Where the court is satisfied that a person is too poor to provide a money
guarantee and is also unable to provide any other sureties to stand up
for him, the court may, at its discretion, release the person on his/her
own personal bond that the/she will be available to appear at all trial
hearings. Where the offence is bailable, the court has no discretion, and
must release him/her on his/her bond within seven day of the arrest.
If at any time a person fails to comply with the time and location
conditions of the bail bond, the court may refuse to release the person on
bail on a later occasion. This refusal will not prejudice the court in
calling for the individual to pay the penalty on the bond.
Right to Legal counsel
The right to legal counsel which necessarily includes the right to
communicate with counsel is one of the most essential elements of a fair trial.
A suspect/accused without counsel is often unaware of all his rights and will
therefore often be more compliant with the investigative authorities. It is
crucial that the suspect/accused has early access to counsel in order to gain
such information, as to how long he may be detained, what are the allegations
against him what the allegations actually mean, and what the consequences of
a refusal to make a statement might be. An early access to counsel is also
42
important in order to draw up a sound defence strategy.
Domestic law
The Constitution provides every arrested person with the right to
consult and be defended by a legal practitioner of his choice.
Right of person against Whom proceedings are instituted to be defended
The Code of Criminal Procedure provides that any person accused of an
offence may of right be defended by a lawyer of his choice.
Legal aid to the accused at State Expense in Certain Cases
Every court should appoint an attorney to the accused at the expense of
the state when he “is not represented by a pleader, and where it appears to the
court that the accused has not sufficient means to engage a pleader”. With the
approval of the state government, the High Court may fashion the rules that
will provide for the mode of selecting lawyers, the “facilities” allowed to the
lawyers, and the fee the appointed lawyers are to receive.
The Legal Services Authorities Act, 1987 mandates the setting up of
Legal aid authorities and committees at the state, district and block
(taluk/tehsil) level which are expected to maintain a panel of lawyers to prove
free services to needy person. Section 12 of the Act provides that every person
who has to file or defend a case will be entitled to legal aid, if hat person is:
1. A member of a schedule caste or scheduled tribe;
43
2. A victim of trafficking in human beings or begar;
3. A woman or a child;
4. A mentally ill or otherwise disabled person;
5. A person under circumstances of undeserved want such as being a
victim of a mass disaster, ethnic violence, caste atrocity, flood, drought,
earthquake or industrial disaster;
6. An industrial workman;
7. In custody, including custody in a protective home; or
8. In receipt of an annual income less than rupees nine thousand or
such other higher amount as may be prescribed by the state government, if the
case is before a court other than the Supreme court, and less than rupees
twelve thousand or such other higher amount as may be prescribed by the
central government, if the case is before the Supreme court.
44
Arrest and Pre-trial detention - Role of a Judge/ Magistrate
By
Smt S. Vara Lakshmi,
Junior Civil Judge,
Mylavaram.
Arrest :
Means the deprivation of the person of his liberty by legal authority or at
least by apparent legal authority.
Arrest how made:
The circumstances in which police officers magistrates and private
citizens are authorized to make arrest without warrant have been
mentioned in Sections 41 to 44 of Cr.P.C. The manner in which the
arrest can be effected by any such person is provided by Section 46 of
Cr.P.C which is as follows.
Sec 46 Cr.P.C (1) In making an arrest the police officer or other person
shall actually touch or confine the body of the person to be arrested,
unless there be a submission to the custody by word or action.
(Provided that where a woman is to be arrested, 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 is a female,
the police officer shall not touch the person of the woman for making her
arrest)
(2) If such person forcibly resists the Endeavour to arrest him, or
attempts to evade the arrest, such police officer or other person may use
all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person
who is not accused of an offence punishable with death or with
imprisonment for life.
((4)Save in exceptional circumstances, no woman shall be arrested after
sunset and before sunrise, and where such exceptional circumstances
exist, the woman police officer shall, by making a written report, obtain
the prior permission of the Judicial Magistrate of first class within whose
local jurisdiction the offence is committed or the arrest is to be made).
Arrest being a restraint of the liberty of a person it can be effected by
45
actually contacting or touching the body of such person or by his submission
to the custody of the person making the arrest. An oral declaration of arrest
without actual contact or submission to custody will not amount to an arrest.
The submission to custody may be by express words or may be indicated by
conduct. If a person makes a statement to a police officer, accusing himself of
having committed an offence, he would be considered to have submitted to the
custody of the police officer. If the accused proceeds towards the Police Station
as directed by the police officer, he would be held to have submitted to the
custody of the police officer.
In case there is forcible resistance to or attempt to evade arrest, the
person attempting to make arrest may use all necessary means for the same.
On the other hand sub-section(3) of section 46 Persons making arrests
can use all necessary means for the purpose, they have not been given any
right to cause the death of a person who is not accused of an offence
punishable with death or imprisonment for life.
When police may arrest without warrant:
(1) Any police officer may without an order from a Magistrate and without a
warrant, arrest any person.
(a) 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; or
(b) who has in his possession without lawful excuse, the burden of proving
which excuse shall lie on such person, any implement of house-breaking; or
(c) who has been proclaimed as an offender either under this Code or by order
of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected
to be stolen property and who may reasonably be suspected of having
committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has
escaped, or attempts to escape, from lawful custody; or
(f) who is reasonable suspected of being a deserter from any of the Armed
Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has
been made, or credible information has been received, or a reasonable
46
suspicion exists, of his having been concerned in, any act committed at any
place out of India, which if committed in India, would have been punishable as
an offence, and for which he is, under any law relating to extradition, or
otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule, made under
sub-section (5) of Section 356; or
(i) for whose arrest any requisition, whether written or oral, has ed from
another police officer, provided that the requisition specifies the person to be
arrested and the offence or other cause for which the arrest is to be made and
it appears there from that the person might lawfully be arrested with out a
warrant by the officer who issued the requisition.
((2) Subject to the provisions of Section 42, no person concerned in a non-
cognizable offence or against whom a complaint has been made or credible
information has been received or reasonable suspicion exists or his having so
concerned, shall be arrested except under a warrant or order of a Magistrate.)
Sec .41A Cr.P.C. Notice of appearance before police officer:
(1) ( The police officer shall), in all cases where the arrest of a person is not
required under the provisions of sub-section(1) of Section 41, issue a notice
directing the person against whom a reasonable complaint has been made,
or credible information has been received, or a reasonable suspicion exists
that he has committed a cognizable offence, to appear before him or at such
other place as may be specified, in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that
person to comply with the terms of the notice.
(3) Where such persons 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 officers 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 or is unwilling to identify himself, the police officer may, subject to
such orders as may have been passed by a competent court in this behalf,
arrest him for the offence mentioned in the notice.).
Sec 41B Cr.P.C. Procedure of arrest and duties of officer making arrest:
Every police officer while making an arrest shall:
(o) Ear an accurate, visible and clear identification of his name which will
facilitate easy identification ;
(p) Prepare a memorandum of arrest which shall be:
47
(vii) Attested by at least one witness, who is a member of the family of
(viii) the person arrested or a respectable member of the locality where
the arrest is made;
Countersigned by the person arrested; and
© inform the person arrested, unless the memorandum is attested by a
member of his family, that he has a right to have a relative or a friend named
by him to be informed of his arrest.
Sec. 41C Cr.P.C. Control room at districts:
(1) The State Government shall establish a police control room:
(c) In every district; and
(d) At State Level.
(2) The State Government shall cause to be displayed on the notice board kept
outside the control room at every district, the names and addresses of the
persons arrested and the name and designation of the police officers who made
the arrests.
(3) The control room at the Police Head quarters at the State Level shall collect
from time to time, details about the persons arrested, nature of the offences
with which they are charged, and maintain a database for the information of
the general public.
Sec 41D Cr.P.C Right of arrested person to meet an advocate of his choice
during interrogation: When any person is arrested and interrogated by the
police,he shall be entitled to meet an advocate of his choice during
interrogation, though not through out interrogation.)
Sec 42 Cr.P.C. Arrest on refusal to give name and residence:
Sec 43. Cr.P.C Arrest by private person and procedure on such arrest:
Sec 44. Cr.P.C. Arrest by Magistrate:
Sec 45 Cr.P.C. Protection of members of the Armed Forces from arrest:
Section 47 Cr.P.C.: Search of place entered by person sought to be arrested:
Sec 48 Cr.P.C. Pursuit of offenders into other jurisdictions:
Sec 49 Cr.P.C. No unnecessary restraint:
Sec 50 Cr.P.C. Person arrested to be informed of grounds of arrest and of right
48
to bail: (1) Every police officer or other person arresting any person without
warrant shall forthwith communicate to him full particulars of the offence for
which he is arrested or other grounds for such arrest.
(2) Where a police officer arrests without warrant any person other than a
person accused of a non-bailable offence, he shall inform the person arrested
that he is entitled to be released on bail and that he may arrange for sureties
on his behalf.
Sec 50A Cr.P.C. Obligation of person making arrest to inform about the arrest,
etc., to a nominated person.
Sec 51 Cr.P.C. Search of Arrested person.
Sec 52 Cr.P.C. Power to seize offensive weapons.
Sec 53 Cr.P.C. Examination of accused by medical practitioner at the request
of police officer.
Sec 53A Cr.P.C.Examination of person accused of rape by medical practitioner:
Sec.54 Cr.P.C: Examination of arrested person by medical officer:
Sec.54A Cr.P.C.Test identification of the accused:
Sec.55 Cr.P.C . Procedure when police officer deputes subordinate to arrest
without warrant:
Sec.55A Cr.P.C. Health and safety of arrested person:
Sec.56 Cr.P.C. Person arrested to be taken before Magistrate or officer in
charge of police station:
A police officer making an arrest without warrant shall, without
unnecessary delay and subject to the provisions herein contained as to bail,
take or send the person arrested before a Magistrate having jurisdiction in the
case, or before the officer in charge of a police station.
Sec.57 Cr.P.C. Person arrested not to be detained more than twenty - four
hours:
No police officer shall detain in custody a person arrested without
warrant for a longer period than under all the circumstances of the case is
reasonable, and such period shall not, in the absence of a special order of a
Magistrate under Section 167,exceed twenty-four hours exclusive of the time
49
necessary for the journey from the place of arrest to the Magistrate's Court.
Sec .58 Cr.P.C. Police to report apprehensions:
Sec.59 Cr.P.C. Discharge of person apprehended:
Sec.60 Cr.P.C Power, on escape, to pursue and retake:
(60A.Arrest to be made strictly according to the code:)
Outline of the provisions in Cr.P.C. for arrest of a person:-
Who can arrest :- A police officer may arrest without a warrant under
Cr.P.C. Sections 41 (a) to 151 of Cr.P.C; under a warrant under sections 72
to 74 Cr.P.C under the written order of an officer in charge under sections 55
and 157 ;under the orders of magistrate u/s 44 Cr.P.C and in non
cognizable offence u/s 42 Cr.P.C.
* A Superior officer u/s 36 Cr.P.C.
* An Officer in Charge of a Police Station u/s 42 (2) and 157 Cr.P.C.
* A magistrate u/s 44 Cr.P.C.
* A military officer u/s 130 and 131Cr.P.C.
* A private person without warrant u/s 43 Cr.P.C,. with warrant u/s 72
and 73, under order of Police officer u/s 37 and under order of a
magistrate u/s 37 and 44 Cr.P.C and also 60 (1) Cr.P.C.
Powers of police officer : Sections 41,42,151 Cr.P.C. and a Police officer
may arrest without warrant u/s 41 Cr.P.C.in the following conditions :
* Who has been concerned in any cognizable offence:
* Who has in possession, without, lawful excuse, of any house breaking
weapon.
* Who has been proclaimed as an offender either under Cr.P.C. or by
order of the State Government.
* Who is in possession of any stolen property.
* Who obstructs a police officer while in the execution of his duty or who
has escaped , or attempts to escape, from lawful custody.
* Who is reasonably suspected of being a deserter from any of the Armed
forces of the Union:
50
* Who has been concerned in any law relating to extradition:
* Who ,being a released convict commits a breach of any rule made under
sub-section (5) of Section (5) of Section 356 Cr.P.C.
* For whose arrest any requisition has been received from another police
officer specifying the person to be arrested and the offence and other
cause for which the arrest is to be made
Rights of under trial prisoners
Meaning:- From oxford dictionary who is on trial in courts of law is called
under trial prisoner.
The 78th commission 1979 under trial prisoner includes a person who is in
judicial custody on remand during investigation .
Thus under trial prisoner is a person who is correctly on trial or who is
imprisoned on remand whilst awaiting trial.
Hon'ble Supreme court of India in its judgments on various aspects prison
administration as laid down 3 broad principals regarding imprisonment and
custody.
1. A person in prison does not become a non person.
2. A person in prison is entitled to all human rights with in the limitations
of imprisonment.
3. There is no justification for aggravating the suffering already inheriting in
the process of incarceration.
Prisons in India and their administration is a State subject covered by
Item No. 4 under State list in the seventh schedule of the constitution of India.
The management and administration of prisons falls exclusively in the domain
of State Government and is Governed by the Prisons Act 1894 and the prison
manuals of the respective State Government . Thus every State have the
primary role, responsibility and authority to change the current prisons laws,
rules and regulations. The central Government provides assistance to states in
this matter.
The central Government of India concerned at the large number of under
trial prisoners in Indian jails has brought to the notice of the law commission
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ARREST AND PRE-TRIAL DETENTION - ROLE OF JUDGEMAGISTRATE
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