ARREST under Indian Criminal Law

An Analysis on D.K.Basu Guidelines laid down by Supreme Court

Author: Deepak Tongli

Research Associate (Law)

You are under Arrest…..! are the set of words which none of us like to hear. This is
something curtailing us from our freedom and liberty. There were many instances that Arrest is
been challenged in the court of law as it is infringing Fundamental Rights on Personal Liberty under
Art. 21 of the Constitution of India. However, there is a succeeding line in the article which reads as
“except according to procedure established by law”. This protects the state from making laws in the
interest of state and maintaining peace, law and order.

Once arrested, the person so arrested is deprived of his personal liberty and detained in the
custody. He is under direct control of the Police Authorities and there will be none from his side to
represent in the custody. There are instances wherein excessive use of power, misuse of power
during interrogation in the police custody. We have heard of Custodial Torture and Custodial
Deaths. These are something which is against the mankind. Though there are set procedures
elaborately discussed in our procedural law like Code of Criminal Procedure on Arrest, Trail etc yet
there are cases of Custodial Deaths and Tortures in the country. In this article, I am expressing the
analysis of Judicial activism in such Custodial Harassment and how it has issued guidelines to the
State in case of Arrest and detention.

Arrest means “the deprivation of a person of his liberty by a legal authority or at least by apparent
legal authority”. For instance, when a police officer apprehends a theft, he is arresting the thief, but
when a robber apprehends a person with a view to extracting ransom, he is not arresting the
person but, illegally confining him. Moreover, it has to be noted that “every compulsion or physical
restraint is not arrested but when the restraint is total and deprivation of liberty is complete, it
amounts to arrest”

In India, the Criminal Law reckons that every accused is entitled to a fair trial which shall be
conducted in the presence of the accused. Further, under Section 235 of the Code, if the accused
is found guilty of the offence charged with, the court should hear the accused on sentence and
then determine it. Thus, ensuring the presence of the accused during trial and judgment is the
primary reason for the arrest. 1
H ISTORY OF ARREST
An arrest is an anachronism and the concept of arrest has existed throughout time and space. In
England, during the 18th century, the concept of police officers did not exist. In 1749, Magistrate
Henry Fielding appointed six men to conduct arrest, search and seizure on his authority to
effectuate criminal trials and provide assistance to the Magistrates. These men were the “first
professional police service of England and came to be known as the Bow Street Runners”.

MODERN CONCEPT OF ARREST

The power to arrest is now vested upon designated police officials under the employment of the
State through several legislations. In the United States, the offences are divided into Minor Crimes
or infractions and Serious Crimes or felonies. In case of minor crimes, the offender is served with a
citation to appear before the court and no arrest takes place. The arrest is allowed only for felonies
and the person is kept in a pre-trial prison under the surveillance of the police.

Further, in the United States, there is a clear difference between detention which is an informal
interrogation or investigatory stop and arrest.

In the United Kingdom, the main legislation dealing with arrest powers and procedures is the Police
and Criminal Evidence Act, 1984. An arrest is divided into ‘arrest with a warrant’ and ‘arrest
without warrant’ and the Act provides situations when an arrest can be made without a warrant
and when a warrant is vital to effect the arrest.

CONCEPT OF ARREST UNDER CRIMINAL PROCEDURE CODE, 1973.

 OBSERVATIONS & ELEMENTS:
In R.R. Chari v. State of Uttar Pradesh, the apex court defined arrest as “the act of being taken
into custody to be formally charged with a crime”. The court observed that in a Constitutional
sense, it means the seizure of a person (body of a person).

In State of Punjab v. Ajaib Singh, the court observed that arrest is the “physical restraint put
upon an abducted person in the process of recovering and taking that person into legal custody
with or without any allegation or accusation of any actual or suspected commission of the
offence”.

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 The elements necessary to constitute arrest were summarized by the Madras High Court
in Roshan Beevi v. Joint Secy. To the Govt. of Tamil Nadu. The vital elements required to
institute arrest are:
1. “There must be an intent to arrest under legal authority,
2. There must be seizure or detention of the person,
3. The person must be in the lawful custody of the arresting person and
4. The act of arrest must include the actual confining of the person and not mere oral
declaration of arrest”.

 PURPOSE
The code contemplates arrest of an alleged offender under five circumstances:
1. “For securing the attendance of the accused at trial
2. For prevention of an apprehended offence or as a precautionary measure.
3. For obtaining the correct name and address of the person arrested.
4. For removing obstruction created to police.
5. For retaking a person escaped from custody”.
These circumstances are not restricted only to the Code of Criminal Procedure, but the
purpose of arrest remains the same under every law. Also, it can be noticed that the Code
allows arrest on the apprehension of a cognizable offence as well. In Rajesh Raut v. State of
Maharashtra, for instance, it was held that where an arrestee has a design (preparation) to
commit a cognizable offence affecting the peace and order in that place, his detention for
certain days ordered by the Magistrate would be proper and justified.

 MISUSE OF THE POWER OF ARREST

Arrest, as averred earlier, is a restriction on the “right to personal liberty”. Therefore, any
violation of this right “must be by a procedure established by law which shall be fair and
reasonable”. In Kajal Dey v. the State of Assam, the court said that “what is fair and reasonable
shall depend upon the circumstances of the case”.

Despite all the laid procedures and guidelines, misuse of the power of arrest and custodial
violence is not novel in India. In People’s Union for Democratic Rights v. Police
Commissioner, Delhi, the police officers arrested some poor people from the village and

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 compelled them to do certain work at the police station. On asking for wages, these people were
stripped and beaten up. Further, in Prem Shankar Shukla v. Delhi Administration, the
petitioner moved the Supreme Court contending that he and certain other prisoners were
forced to wear handcuffs during custody.

The frequent instances of police atrocities and custodial deaths prompted the apex court to pass
judgments such as Nilabati Behera, Joginder Kumar and Shyam Sunder Trivedi which were
later reviewed in D.K. Basu v. State of West Bengal.

DK BASU VS. STATE OF WEST BENGAL

ALONG WITH
ASHOK K. JOHRI VS. STATE OF UTTAR PRADESH

FACTS OF THE CASE :

D. K Basu, The Executive Chairman, Legal Aid Services, West Bengal, a non- Political organisation
on 26.08.1986 addressed a letter to the Chief Justice of India drawing his attention to certain news
items published in the Telegraph Newspaper regarding deaths in police lock up and custody. He
requested that the letter be treated as a Writ Petition within the “Public Interest Litigation”
Category. Considering the importance of the issues raised in the letter, it was treated as a Writ
Petition and notice was served to the Respondents. While the Writ Petition was under
consideration, one Mr. Ashok Kumar Johri addressed a letter to the Chief Justice drawing his
attention to the death of one Mahesh Bihari of Pilkhana, Aligarh in Police Custody. The same letter
was also treated as a Writ Petition and was listed along with the Writ Petition of D.K.Basu. On
14.08.1987, the Court made the Order issuing notices to all the State Governments and notice was
also issued to the Law Commission of India requesting suitable suggestions within a period of two
months. In response to the notice, affidavits were filed by several states including West Bengal,
Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra and Manipur.
Further, Dr. A.M.Singhvi, Senior Advocate was appointed as Amicus Curiae to assist the Court. All
the Advocates appearing rendered useful assistance to the Court.

ISSUE :
The Issue in the Present Case pertained to Custodial Torture and Deaths by the Police.

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FINDINGS OF THE COURT:
The Court issued a list of 11 guidelines in addition to the Constitutional and Statutory Safeguards
which were to be followed in all cases of arrest and detention.

GUIDELINES LAID DOWN IN D.K.BASU CASE ARE AS FOLLOWS :

1. The Police Personnel carrying out the arrest and handling the interrogation of the
arrestee should bear accurate, visible and clear identification and name tags with
their designations. The Particulars of all such personnel who handle interrogation of
the arrestee must be recorded in a register.

2. That the Police Officer carrying out the arrest of the arrestee shall prepare a memo of
the arrest at the time of arrest and such memo shall be attested by at least one
witness who may be either a member of the family of the arrestee or a respectable
person of the locality from where the arrest is made. It shall also be counter signed by
the arrestee 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 be entitled to have one friend
or relative or other person known to him or having interest in his welfare being
informed, as soon as practicable, that he has been arrested and is being detained at
the particular place, unless the attesting witness of the memo of the arrest is himself
such a friend or a 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 Legal Aid Organisation in the District and the police station of the
area concerned telegraphically within period of 8 to 12 hours after the arrest.

5. The person arrested must be made aware of his right to have someone informed of
his arrest or detention as soon he is put under arrest or is detained.

6. An entry must be made in the Case 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 if the
police official in whose custody the arrestee is.

7. The Arrestee should, where he so requests, be also examined at the time of his arrest
and major and minor injuries, if present on 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 be subjected to medical examination by a trained doctor every

48 hours during his detention in custody by a doctor on the panel of approved
doctors appointed by the Director, Health Services of the concerned State or Union
Territory.

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 9. Copies of all the documents including the memo of arrest should be sent to the
Magistrate for his record.

10. The Arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.

11. 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 effecting the
arrest and at the Police Control Room Board, it should be displayed on a conspicuous
notice board.

Recently, in Ratilala Raghavjibhai v. State of Gujarat, police has come to the complainant’s house
and said that her husband was involved in a theft incident and since he was not home they arrested
her son and told her to inform her husband if he returns and only then will her son be allowed to
go. These instances of meaningless misuse of power shake the entire concept of the arrest.

Finally, to conclude with in a free society like ours, “law is quite complex 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 the Civil and Political Rights to which India is now a party.

Even the Indian Constitution recognizes the right to personal liberty under Article 21 and also
provides that it can be violated only by a fair and reasonable procedure established by law. Thus,
personal liberty being the corner stone of our social structure, the concept of arrest and legal
provisions related to it have special significance.

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