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Arrest, and the Rights of the Arrested Person Arrest means the deprivation of a person of his liberty by legal authority or at least by apparent legal authority. For instance, when a police officer apprehends a pick-pocket he is arresting the pick-pocket; but when a dacoit apprehends a person with a view to extract ransom, the dacoit is not arresting that person but wrongfully confining that person. Secondly, every compulsion or physical restraint is not arrest but when the restraint is total and deprivation of liberty is complete, that would amount to arrest. If a person suppresses or overpowers the voluntary action of another and detains him in a particular place or compels him to go in a specific direction, he is said to imprison that other person. If such detention or imprisonment is in pursuance of any legal authority or apparent legal authority, it would amount to arrest. Preventing a person from making his movements and from moving according to his will amount to arrest of such person In a free society like ours, law is quite jealous of the personal liberty of every individual and does not tolerate the detention of any person without legal sanction. The right of personal liberty is a basic human right recognized by the General Assembly of the United Nations in its Universal Declaration of Human Rights. This has also been prominently included in the convention on Civil and Political Rights to which India is now a party. Our Constitution recognizes it as a fundamental right. Article 21 provides: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Further, the procedure contemplated by this article must be „right and just and fair‟ and not arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.Thus the persona! liberty being the corner-stone of our social structure, the legal provisions relating to arrests have special significance and importance. Arrest can be made either under a warrant or without a warrant under certain circumstances. Arrest under sec -41 to 60 A Cr.P.C deals in following aspects (a) how the arrests are made, (b) what powers have been given to persons making arrests to facilitate their work, (c) what restraints are put on the exercise of these powers for safeguarding public interest, (d) what rights are given to the arrested person for facilitating his defence, and (e) what are the legal consequences of the non-compliance of the rules relating to the above-said matters. Section 41 – When police may arrest without warrant 1. Any police officer may without an order from a Magistrate and without a warrant, arrest any person,-
1. who commits, in the presence of a police officer, a cognizable offence; 2. 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 punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:1. the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; 2. the police officer is satisfied that such arrest is necessary,1. to prevent such person from committing any further offence; or 2. for proper investigation of the offence; or 3. to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or 4. to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or 5. as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing. (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence; or who has been proclaimed as an offender either under this Code or by order of the State Government; or 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 who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or who is reasonable suspected of being a deserter from any of the Armed Forces of the Union; or 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
5. 6. 7.
8. who, being a released convict, commits a breach of any rule made under SubSection (5) of section 356; or 9. 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. 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 of his having so concerned, shall be arrested except under a warrant or order of a Magistrate. Section 41A – Notice of appearance before police officer 1. The police officer may, 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 person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. 4. Where such person, at any time, fails to comply with the terms of the notice, it shall be lawful for the police officer to arrest him for the offence mentioned in the notice, subject to such orders as may have been passed in this behalf by a competent Court. Section 41B – Procedure of arrest and duties of officer making arrest Every police officer while making an arrest shall,1. bear an accurate, visible and clear identification of his name which will facilitate easy identification; 2. prepare a memorandum of arrest which shall be,1. attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made; 2. countersigned by the person arrested; and 3. 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. Section 41C – Control room at districts
1. The State Government shall establish a police control room,1. in every district; and 2. at State level. 2. The State Government shall cause to be displayed on the notice board kept outside the control rooms 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 Headquarters at the State level shall collect from time to time, details about the persons arrested, nature of the offence with which they are charged and maintain a database for the information of the general public. Section 41D – 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 throughout interrogation.
COMMENT Cases where a police officer may arrest a person without warrant are specified in Schedule I of this Code. This section enumerates nine categories of offences and cases relating thereto where a police officer may arrest any person without an order from a Magistrate and without a warrant. It was held in Avinash v. State of Maharashtra that Section 41 is a depository of general powers of the police officer to arrest but this power is subject o certain other provisions contained in the Code itself as well as in the special statute to which the Code is made applicable. If Section 155(2) prohibits a police officer from investigating a noncognizance case without the order of Magistrate then in respect of such offence a police officer cannot exercise the powers contained under Section 41(1)(d) of the Code. These powers are although general powers of the police officers h connection with the arrest of a person but they cannot be read in isolation and must be read in conjunction with the provisions of Sections 155 and 156 of the Code with reference to the nature of the offence. „Credible information‟ and „a reasonable suspicion‟.—Information upon which arrest may be made by a police officer must be based upon definite facts. The police officer must consider over all materials placed before him in support of arrest before taking final decision in this respect. Where a wrong arrest is made by a police officer under a bona fide mistake he will be protected and an illegal arrest does not affect the trial of the case. Similarly where an arrest is made on mere suspicion, it must be reasonable and in such cases investigation should be carried out by the police without delay. Magistrate must also be watchful, for this power is very likely to be abused by the police. Whether there are reasonable grounds for suspicion will depend upon the circumstances in each case. If a person is suspected to be in possession of stolen clothes and he
fails to answer satisfactorily, it would be a reasonable ground for suspicion iustifying his arrest.5 But mere suspicion would not be enough, it must be reasonable. Clause (b).—Under clause (b) a police officer may arrest a person only when he has a definite knowledge or at any rate a definite information, that he is in possession of implements of housebreaking. Where an arrest is made in absence of such knowledge or information the person has a right of private defence even though such implements are actually found in his possession after search. 42. Arrest on refusal to give name and residence.—(l) 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 riis 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. (2) When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required: Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India. (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 forthwith be forwarded to the nearest Magistrate having jurisdiction. COMMENT :- If the name and residence of a person is either ascertained or is otherwise undoubted by the police officer,‟ the person arrested should be released on executing a bond to appear before a Magistrate. If the person does not give his name or residence, or gives a name and residence which the police officer believes to be false he may be taken into custody pending ascertainment of his name and residence. In no case should he be detained beyond twenty-four hours but should be presented before a Magistrate. 43. Arrest by private person and procedure on such arrest.—(1) Any private person may arrest or cause to be arrested any person who in his presence commits a non-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 police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station. (2) If there is reason to believe that such person comes under the provisions of Section 41, a police officer shall re-arrest him. (3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe w be false, he shall be dealt with under the provisions of Section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at mce released.
COMMENT :- A private individual may arrest a person only when (1) the person is a proclaimed offender, or (2) if the person commits cognizable and non-bailable offence in his view. The word „in his view‟ means “in the presence of‟ and not “in his opinion or on “suspicion” or “on receipt of information”. Where an individual seeing a person fleeing with a knife in hand being pursued by many men, shouting for his apprehension, tries to arrest the fleeing person the arrest is without any right as contemplated by this section. 44. Arrest by Magistrate.—(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. (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. COMMENT :- Sub-section (1) gives the Magistrate power to arrest a person who has committed an offence in his presence and also to commit him to custody. Under sub-section (2) the Magistrate has power to arrest a person who is suspected of having committed an offence hut he has no power to commit him to custody in this case. The omission of this power to commit such suspect to custody is not accidental but deliberate. 45. Protection of members of the Armed Forces from nrrest.—(1) Notwithstanding anything contained in Sections 41 to 44 (both inclusive), no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government. (2) The State Government may, by notification, direct that the provisions of sub-section (1) shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section shall apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted. COMMENT :- The provisions of this section are new. The protection from arrest is not absolute. A member of the Armed Forces may be arrested only after obtaining the consent of the Central Government. In the event of action by the State Government under sub-section (2), the „consent‟
referred to in sub-section (1) shall he that of the „State Government‟ instead of the Central Government. 46. Arrest how inade.— (1) In making an arrest the police officer or other person making the same 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. (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. Arrest being a restraint of the liberty of a person it can be effected by 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 a 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. Whether the means used for arrest were necessary or not would depend On the other hand sub-sec. (3) of S. 46 enjoins in clear terms that h 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. Again S. 49 provides that „the person arrested shall not be subjected to more restraint than is necessary to prevent his escape‟. Arrest ofJudicial Officer In the Delhi Judicial OfficersAssociation 1991 (3), JT S.C. 617, the Supreme Court laid down the following guidelines regarding arrest and detention of Judicial Officers: (a) If a Judicial Officer is to be arrested for some offence, it should be done intimation to the District Judge or the High Court, as the case may be. (b) If facts and circumstances necessitate the immediate arrest of Judicial of the subordinate judiciary, a technical or formal arrest may be eftécted (c) The fact of such arrest should be immediately communicated to the and Sessions Judge of the concerned Distt. and the Chief Justice of the Court.
(d) The Judicial Officer so arrested shall not be taken to the police station, the prior order or directions of the District and Sessions Judge of the co district if available: (e) Immediate facilities shall be provided to the Judicial Officer for comm with his family members, legal advisors and Judicial Officers includiri district and sessions judge. ( F) No statement of Judicial Officer who is under arrest be recorded nor any panchnama be drawn-up nor any medical tests be conducted except in the presence of the legal Advisor of the Judicial Officer concerned or another Judicial Officer ofequal or higher rank, if available. (g) There shourd be no handcuffing of a Judicial Officer, if however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be powered and handcuffed. In such case, immediate report shall be made to the District and Sessions Judge concerned and also the Chief Justice of the High Court. But the burden would be on the Police to establish the necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be established that the physical arrest and handcuffing of the Judicial Officer was unjustified, the police officer causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily determined by the High Court. The above guidelines are not exhaustive but these are minimum safeguards which must observed in case of arrest of a Judicial Officer. Guidelines of all Arrest :- In Joginder Kumar JT 1994(3) S.C. 423, the Supreme Court has laid down certain requirements to be followed in all cases of arrest. (a) Law of arrest is of balancing individual rights, liberties and privileges, on the hand and individual duties, obligations and responsibilities on the other, of weighing of balancing the rights, liberties and privileges ofthe single individual and of those individuals collectively; of simply deciding what is wanted and where to put the weight and emphasis ofdeciding which comes first the criminal or society, law violator or law abider. (b) “No arrest can be made because it is lawful for the police officer to do so. The existence ofthe power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able tojusti‟ the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of a commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and, perhaps, in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bonafides of a complaint and a reasonable belief both as to the persons
complicity and even so as to the need to effect arrest. Dying a person of his liberty is a serious matter. The recommendation of the police commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom, the person is not liable to arrest merely on the suspicion ofcomplicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such a lest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer, issues notice a person to attend the station house and not to leave station without permiss would do.” The Iordships of the Supreme Court in the above noted case further observed that the rights in Art. 21 and 22 (1) of the constitution are inherent and required to be recognized and scrupulously protected. For effective enforcement of these fundamental rights the lordship issued the following requirements: (i) An arrested person being held in custody is entitled, if he so requests to have one friend, relativeor other person who is known to him or likely to take an interest of his welfare told as far as is practicable that he has been arrested and where is being detained. (ii) The police officer shall inform the arrested person when he is brought to the police station of this right. (iii) An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow, from Art. 21 and 22(1) and enforced strictly (iv) It shall be the duty of the Magistrate, before whom the arrested person is produced to satisfy himself that these requirements have been complied (v) The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights if the arrested persons found in the various Police Manuals. (vi) These requirements are not exhaustive. The Directors General of Police of all States in India shall issue necessary instructions requiring due observance of these requirements. In addition, departmental instruction shall be issued that a police officer making arrest should also record in the case diary, the reasons for making the arrest.
In the case reported in AiR. 1997 S.C. 610 (D.K Basu v. State of West Bengal and others), the Supreme Court of India laid down the following guidelines— 1. “The Police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurates, visible and clear indentification and name tags with their dsignations. The particulars of all such police personnel who handle interrogation of the arrests must be recorded in a register.
2. That the Police Officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrest and shall contain the time and date of arrest. 3. - A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall entitled to have one friend or relative or other persons known or him or having interests in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particulars place, unless the attesting witness of the memo of arrest is himself such a friend or relative of the arrestee. 4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the LegalAid Organisation in the District and the Police Station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. 5. The person arrested must be aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest is detained. 6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. 7. The arrestee should, where he so reuqests be also examined at the time of his arrest and major and minor injuries, if any present or his/her body must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the Police Officer effecting the arrest and its copy provided to the arrestee. 8 The arrestee should subjected to medical examination by a trained doctor every 48 hours during this detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of concerned State or Union Territory. Director, Health Services should prepare such a panel for all Tahsils and Districts as well. 9. Copies of all the documents including memo of arrest, referred to above, should be sent to the allaka Magistrate for his record. 10. A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of the arrest and at the police control room it should be displayed on conspicous police board.” Additional powers for effecting arrest.—(a) Search of place: According to S. 47 an occupier of a house is under a legal duty to afford to the police all the facilities to search the house for the
purpose of making arrests. If such facilities are denied or obstructions are put in the way of the police officer, the section allows the officer to use force for getting entry into the house for search and also for the purpose of liberating himself in case he is detained in the house. The section also puts reasonable restrictions on the police when the part of the house to be searched is occupied by a pardanashin woman. Section 47 is as follows: Search of place entered by person sought to be arrested.—(1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, any person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein. (2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance: Provided that, if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it. Section 48 – Pursuit of offenders into other jurisdictions A police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India. Section 49 – No unnecessary restraint The person arrested shall not be subjected to more restraint than is necessary to prevent his escape. Section 50 – Person arrested to be informed of grounds of arrest and of right 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. Section 50A – Obligation of person making arrest to inform about the arrest to inform about the arrest, etc., to a nominated person 1. Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information. 2. The police officer shall inform the arrested person of his rights under subsection (1) as soon as he is brought to the police station. 3. An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government. 4. It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of Sub-Section (2) and Sub-Section (3) have been complied with in respect of such arrested person. COMMENT The provisions of this section are mandatory. Where a person is arrested without any warrant, he should be immediately informed of the particulars of the offence and grounds of his arrest and where the offence is a bailable one, of his right to be released on bail. That is an arrest without warrant can be justified only if it is an arrest on a charge made known to the person arrested. This section confers a valuable right and non-compliance with it amounts to disregard of the procedure established by law.‟ The allegation that the grounds of arrest or its particulars would be enough to enable him to file a writ petition of habeas corpus were not given, has to be proved by the person making such allegation. Making known to the accused grounds of his arrest is a constitutional requirement and failure to comply with this requirement renders the arrest illegal. It was held in Ajit Kumar v. State of Assam, that when a person arrested without warrant alleges by affidavit that he was not communicated with full particulars of the offence leading to his arrest, in the face of this affidavit the police diary cannot be perused to verify the police officer‟s claim of oral communication of such particulars. No counter affidavit denying the petitioner‟s allegation was filed. Therefore even if such oral communication was made it is not clear whether full particulars were communicated or mere section was communicated. Hence the arrest and detention of that person was illegal. In Raj Kumari v. S.H. 0. Noida, the petitioner a leader of workers who had resorted to strike and violence was arrested in night after F.LR. of incident was lodged. The arrest was made by the police after investigation which showed that she had led the mob. The petitioner complained that she was arrested in the night in violation of the Supreme Court‟s decision in Joginder Kumar v. State of UP., and D.K. Basu v. State of West Ben gaI,’’ the petitioner supported her allegation on
affidavit but affidavit of her relatives were not filed. She also complained that police officers who arrested her did not bear name plates and no memo of arrest was prepared. The allegation that she was arrested in night was denied by police by filing affidavit. It was held that the affidavit of the petitioner was the only supportive evidence on record. There was no other corroborative material or affidavit of her relatives. Therefore, the plea of petitioner that she was arrested at night was not tenable, more so because the plea of violation of Supreme Court decision was not raised in her bail application moved on same day and with legal assistance. Therefore, the allegation of petitioner was not accepted and the petition to initiate action against police was held liable to be set aside. Section 51 – Search of arrested persons 1. Whenever a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person Arrested cannot furnish bail, and whenever a person is arrested without warrant, or by a private person under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail. The officer making the arrests or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing-apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person. 2. Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.
COMMENT This section makes provision regarding search of the arrested person and making an inventory of the articles found upon him. Before making a personal search of the accused, the searching officer and others assisting him should give their personal search to the accused as it avoids possibility of implanting an object to be shown in the search. Where no grounds of arrest are given to the accused, the search becomes illegal. However, it is not necessary that the witnesses also be female. Regard to decency does not mean that a male cannot even witness the search of a female. In Kasturi Lal v. State of UP., it was held that where a person is arrested on suspicion that he was carrying stolen property and the property found on search is seized, such seizure shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of the property.
In Raghbir Singh v. State of Punyab, the Supreme Court held that the officers functioning in the anti-corruption department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the Court and the Court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. They should insist on observing this safeguard for the protection of public servants against whom a trap may have been laid. It was held in Mahadeo v. State of U.P., that taking of signature of the person searched on the memo of recovery list is not required by this section and if recovery memo is not signed by the accused, the search is not illegal. Section 52 – Power to seize offensive weapons The officer or other person making any arrest under this Code may taken from the person arrested any offensive weapons which he has about his person, and shall deliver all weapons so taken to the Court or officer before which or whom the officer or person making the arrest is required by this Code to produce the person arrested. Medical examination of accused after arrest at the request of Police Officer .—”To facilitate effective investigation, provision has been made authorising an examination of the arrested person by a medical practitioner, if, from the nature of the alleged offence or the circumstances under which it was alleged to have been committed, there is reasonable ground for believing that an examination of the person will afford evidence . Section 53 – Examination of accused by medical practitioner at the request of police officer 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 an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-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 reasonable 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 female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner. Explanation: In this section and in Sections 53A and 54: (a) “examination” shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests
which the registered medical practioner thinks necessary in a particular case; (b) “registered medical practitioner” means a medical practitioner who possesses any medical qualification as defined in clause (h) of Section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register. Question might arise as to whether this provision is violative of the constitutional privilege against self-incrimination. Relying on the principles laid down by the Supreme Court in Kathi Kalu case it has been held that S. 53 is not violative of Art. 20(3) and that a person cannot be said to have been compelled “to be a witness” against himself if he is merely required to undergo a medical examination in accordance with the provisions of S. 53. The power to compel the accused to submit to medical examination is hedged in various conditions. The object obviously is to balance the conflicting interests of the individuals and the society. The medical examination contemplated by the section may take various forms.The expression „examination of the person‟ as used in S. 53 cannot be restrictively confined only to the examination of the skin or what is visible on the body itself. The examination of some organs inside the body for the purpose of collecting evidence may become necessary and such an examination cannot be held to be beyond the purview of this section. Examination by a medical practitioner logically take in examination by testing his blood, sputum, semen, urine etc. It may include X-ray examination or taking electrocardiograph depending upon the nature of the case. The section itself permits the use of force as is reasonably necessary for the purpose of medical examination of the arrested person. Sometimes such a medical examination may cause pain and hurt to the examinee. It may be at some discomfort is caused to the person the samples of whose blood or semen are taken for medical examination under this section; and if the ocess of taking such samples is reasonable under the circumstances, then the causing of consequential discomfort to the person is justified by the section. Though the section lays down a condition that the medical examination is to be done at the instance of a police officer not below the rank of sub-inspector, it does not debar other superior officers or the court concerned from exercising the said power if it becomes necessary for doing justice in a criminal case. It is therefore open to the court which is seized of the matter to issue direction or to grant approval or permission to the police for carrying out further investigation under S. 53. The medical examination contemplated by the section is in respect of a person arrested on a charge of committing of an offence‟. Even if an accused person is released on bail, he is still „a person arrested on a charge of committing an offence‟. Moreover, such a person while released on bail is notionally in the custody of the court (through the surety) and therefore his medical examination can be carried out in terms of S. 53.
It may be useful to mention here some of the provisions of the Identification of the Prisoners Act, 1920, which, like the medical examination of the accused under this section, are helpful for police- investigations. Section 4 of the Act empowers a police officer to take measurements (including finger impressions and foot-print impressions) of a person arrested in connection with an offence punishable with imprisonment which may extend to one year or more. Section 5 of the Act further provides that if in the opinion of a Magistrate it is expedient to direct any person to allow his measurements or photographs to be taken for the purpose of investigation or proceeding under the CrPC, he may make an order to that effect, provided that the person at some time or other has been arrested in connection with such investigation or proceeding. Section 53A – Examination of person accused of rape by medical practitioner 1. When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a subinspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose. 2. The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely1. the name and address of the accused and of the person by whom he was brought, 2. the age of the accused, 3. marks of injury, if any, on the person of the accused, 4. the description of material taken from the person of the accused for DNA profiling, and”. 5. other material particulars in reasonable detail. 3. The report shall state precisely the reasons for each conclusion arrived at. 4. The exact time of commencement and completion of the examination shall also be noted in the report. 5. The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of Sub-Section (5) of that section. Section 54 – Examination of arrested person by medical officer 1. When any person is arrested, he shall be examined by a medical officer in the service of Central or State Government, and in case the medical officer is not available, by a
registered medical practitioner soon after the arrest is made; Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner. 2. The medical officer or a registered medical practitioner so examining the arrested person shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted. 3. Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person. COMMENT :- This section confers on the arrested person the right to have his medical examination done. It was held in D.J. Vaghela v. Kantibhai Jethabhai, that the Magistrate owes a duty to inform the arrested person about his right to get himself examined in case he has complaints of physical torture or maltreatment in police custody. The Supreme Court has cautioned the lower Courts not to adopt a casual approach to custodial torture. In case the Magistrate considers the request of the accused to be vexatious or for defeating the ends of justice, he may refuse it. It has been held in Mukesh Kumar v. State, that the procedure adopted by the Magistrate to examine the body of the accused himself and then dismissing the application with his observation that they were seen in normal posture was wholly unwarranted and erroneous. Section 54A – Identification of person arrested :- Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction, may on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit.” Section 55 – Procedure when police officer deputes subordinate to arrest without warrant 1. When any officer in charge of a police station or any police officer making an investigation under Chapter XII requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made and the officer so required shall, before making the arrest, notify to the person to be arrested the substance of the order and, if so required by such person, shall show him the order. 2. Nothing in Sub-Section (1) shall affect the power of a police officer to arrest a person under section 41.
Section 55A – Health and safety of arrested person It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused. (c) Right to be taken before a magistrate without delay.—Whether the arrest is made without warrant by a police officer, or whether the arrest is made under a warrant by any person, the person making the arrest must bring the arrested person before a judicial officer without unnecessary delay. It is also provided that the arrested person should not be confined in any place other than a police station before he is taken to the magistrate. These matters have been provided by Ss. 56 and 76 which are as given below: Section 56 – 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, lake or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.
COMMENT :- The object of this section is that the arrested person should be brought before Magistrate having jurisdiction in the case without any unnecessary delay. Such a person should not be detained for more than twenty-four hours in police custody in absence of a special order of a Magistrate. (d) Right of not being detained for more than 24 hours without judicial scruitiny —Here again, whether the arrest is without warrant or under a warrant the arrested person must be brought before the magistrate or court within 24 hours Section 57 – 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 necessary for the journey from the place of arrest to the Magistrate‟s Court. It may also be noted that the right has been further strengthened by its incorporation in the Constitution as a fundamental right. Article 22(2) of the Constitution provides: “Every person who is arrested and detained in custody shall be produced before the nearest Magistrate with 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.”
In case of arrest under a warrant the proviso to S. 76 provides a similar rule in substance. The right to be brought before a magistrate within a period of not more than 24 hours of arrest has been created with a view (i) to prevent arrest and detention for the purpose of extracting confessions, or as a means of compelling people to give information; (ii) to prevent police stations being used as though they were prisons — a purpose for which they are unsuitable; (iii) to afford an early recourse to a judicial officer independent of the police on all questions of bail or discharge. The precautions laid down in S. 57 seem to be designed to secure that within not more than 24 hours some magistrate shall have seisin of what is going on and some knowledge of the nature of the charge against the accused, however incomplete the information may be. The Supreme Court has strongly urged upon the State and its police authorities to see that this constitutional and legal requirement to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest must be scrupulously observed. This healthy provision enables the magistrates to keep check over the police investigation and it is necessary that the magistrates should try to enforce this requirement and where it is found disobeyed, come heavily upon the police. If a police officer fails to produce an arrested person before a magistrate within 24 hours of the arrest, he shall be held guilty of wrongful detention. Frequent complaints about the police‟s noncompliance of this requirement has made the Kerala High Court to instruct the magistrates to call upon the police officer, on receipt of a complaint, to state in the form of an affidavit whether the allegations are true. If the officer denies the arrest the magistrate may make an inquiry into the issue and pass appropriate orders. The Magistrate can also exercise his powers for making searches under S. 97 to issue a search warrant and in case of non-compliance to proceed against the officer for contempt and initiate proceedings under S. 342 IPC. The tendency of certain officers to note the time of arrest in such a manner that the accused production before the magistrate was well within 24 hours of the arrest has been disapproved. In S. 57, the words “special order of a magistrate under S. 167” refer to the power of the Magistrate to order detention in police custody for a limited period in order to facilitate police investigations. The Magistrate before passing any such order under S. 167 has to satisfy himself as to the necessity of remanding the accused to police custody. Section 58 – Police to report apprehensions :- Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise. The object of the report is to keep the District Magistrate etc. informed of the situation regarding grave offences. The administration of police in a district is under the general control and direction of the District Magistrate. Therefore the report under this section would enable him to see whether the police are exercising their powers properly or not.
Section 59 – Discharge of person apprehended :- No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate. Once a person is arrested by police, he can be enlarged only after taking a bond or bail for his appearance before a magistrate; the police cannot discharge him on their own responsibility without the order of a magistrate. The special order of a magistrate contemplated in this section is a special order of a magistrate under 5. 167 which prescribes procedure when investigation according to police cannot be completed within 24 hours. Section 60 – Powers, on escape, to pursue and re-take :- If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in India. 1. The provisions of section 47 shall apply to arrests under Sub-Section (1) although the person making any such arrest is not acting under a warrant and is not a police officer having authority to arrest. Section 60A – Arrest to be made strictly according to the Code :- No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest.
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