Rights of Arrestee

1. Introduction:

The law of arrest is one of balancing maintenance of peace and order in the society
and protection of individual rights and liberty. It is about these conflicting claims
which require reconciliation. The procedure must be such which prevents unnecessary
arrest on one hand and provide for safeguards to the arrestee on the other. The journey
of evolution of arrest law in its present form is a fine example of maintaining such
balance between these two conflicting interests. The Code of Criminal Procedure,
1973 (hereinafter as Code) is equipped with various safeguards to protect the rights of
arrested person. Under the changed regime the use of arrest power by the police
officer is rationalised. The police officer is made accountable for every arrest.

The law or procedure depriving a person of ‘personal liberty’ must stand the test of
just, fair and reasonableness and should not be arbitrary, fanciful or oppressive.1 It is
with this idea the exercise of arrest power is made subject to review by judicial power
as arrest without court’s sanction seriously invades the liberty of a citizen.

2. Meaning of arrest:

The Code of Criminal Procedure does not contain any definition of ‘arrest’ but one
can trace the meaning of the term from other sources. The dictionary meaning of
‘arrest’ refers to ‘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’.

The Halsbury’s Laws of England defines ‘arrest’ as ‘apprehension or restraint or the

deprivation of one’s personal liberty. However, every deprivation of liberty or
physical restraint is not arrest. Only the deprivation of liberty by legal authority, in a
professionally competent and adept manner amounts to arrest. Further when the
restraint is total and deprivation of liberty is complete that would amount to arrest.’
Thus arrest means ‘apprehension of a person by legal authority resulting in
deprivation of his liberty’.

In ordinary and natural sense, it denotes to absolute denial of freedom of movement.

The person arrested is taken away from his/her known environment and put in a
strange world. It brings social stigma which puts his/her reputation at peril.

3. Kinds of Arrest:

Arrest may be categorised as ‘preventive’ and ‘punitive’. From the point of view of
the Code it may be classified as ‘pre-offence arrest’ and ‘post-offence arrest’.

The preventive arrest also known as preventive detention is covered under clauses (3)-
(7) of Article 22 of the Constitution. In cases of preventive arrest, commission of a
crime or an offence is not a necessary condition of arrest thus leaving wide discretion

1
177th Report on ‘Law relating to Arrest, Law Commission of India, 2001.
on the authority to exercise power of arrest. The NCRB Crimes in India Report of
2015 indicates that over 3,200 people were being held in administrative detention in
Indian jails in December 2014.2

The division of arrest under the Code in ‘pre-offence arrest’ and ‘post-offence arrest’
is to prevent commission of cognizable offence on one hand and to prevent further
commission of crimes on the other. The cases of ‘pre-offence arrest’ is dealt in section
151 of the Code which confers powers on the police officer to arrest any person who
he believes is designing to commit any cognizable offence. Such a person if arrested
shall not be detained in custody for a period exceeding twenty-four hours from the
time of his arrest. The situations of ‘post-offence arrest’ are provided in sections 41,
42, 43 and 44 of the Code wherein powers to arrest are given to police officer, to
magistrates and, to a limited extent, even to private persons.

4. Who can be arrested?

As discussed above commission of crime is not sine qua non for making an arrest
under the Code. Even in situations of ‘post offence arrest’ it is seriousness of offence
(most notable being cognizable offences) which serves as a criterion for effecting
arrest under the Code. Prior to amendments of 2008 and 2010 to the Code, the
commission of cognizable offence was the sole criteria for making arrest under
section 41. But post amendments the arrest process has been made more rational with
inbuilt checks on the exercise of powers. In the changed regime ‘commission of
cognizable offence’ is no more the only criteria for effecting arrest. In such scenario,
the persons who may be arrested may be divided in the following category:

 More susceptible to arrest

This category covers persons falling under sub-clauses (a), (ba), (c), (d), (e),
(f), (g), (h) and (i) of clause (1) of section 41 of the Code which deal with

- Persons committed a cognizable offence in the presence of the

police officer;
- Against whom ‘credible information’ has been received disclosing
commission of a cognizable offence punishable with seven years or
more punishment including life imprisonment and death sentence;
- Who is declared a proclaimed offender;
- Who is found in his possession stolen property;
- Who obstructs police officer in discharge of his duty or who has
escaped or attempts to escape from lawful custody;
- Who is a deserter from any armed forces;
- Who has committed any offence outside India;
- Who has committed breach of any rule made under section 356(5)
and
- Who is required to be arrested on a requisition from another police
officer.

2
Rajshree Chandra, ‘A Lawless Law’, available at:
http://indianexpress.com/article/opinion/columns/jignesh-mewani-dalit-leader-khurram-parvez-human-
rights-activist-3053386/
  Less susceptible to arrest

Sub clause (b) of section 41(1) discourages routine arrest and provides that
persons who are either involved in or suspected of committing an offence
which is punishable with seven years or less punishment shall not be arrested
at once. The procedural requirement under sub clause (b) must be fulfilled
before making any arrest for the offences falling under this category.

 Least susceptible to arrest

Law protects certain persons from arrest. In this regard section 45 of the Code
exempts members of armed forces from arrest for the acts done by them in
discharge of their official duties.

5. Significance of Rights of Arrestee:

The chances of misuse of power by the arresting authority minimises where arrest is
made under the warrant of a court. In such cases the judicial mind has already been
applied while issuing the warrant. But in cases of arrest without judicial sanction the
decision depends more on subjective satisfaction of the police officer. In cases of
arrest without warrants the legality of arrest is not verified until the arrested person is
brought before the court. Arrests without warrants call for greater protection than do
arrests under such warrants.

Chief Justice M. N. Venkatachalliah in Joginder Kumar v. State of U.P.3 has rightly

observed that

“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 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 bona fides of a
complaint and a reasonable belief both as to the person’s complicity and even
so as to the need to effect arrest. Denying a person of his liberty is a serious
matter.”4

Chief Justice M. N. Venkatachalliah has aptly summarised the issue and opined that

“No arrest can be made because it is lawful for the police officer to do so. The
existence of the power to arrest is one thing. The justification for the exercise
of it is quite another.”5

Thus it becomes pertinent to confer the arrested person with safeguards to protect his
freedom and personal liberty. Such safeguards are provided in the Constitution as well

3
(1994)4SCC260.
4
Id. at para 20
5
Ibid.
as in the Code. The new Code of Criminal Procedure after 2008 and 2010
amendments subjected all arrests to rule of law. It is categorically stated in section
60A which discourages unnecessary arrests by subjecting arrests to the strict
compliance of the Code.

6. Constitutional Parameters:

Article 22 of the Constitution is the key provision which safeguards the arrested
person from further harassment in the hands of arresting authorities. Clause (1) of
Article 22 directs the arresting authority to inform the person so arrested

- grounds of arrest, and

- right to consult and defended by a legal practitioner of his choice.

Clause (2) of Article 22 sets an upper limit on the period of detention of a person who
has been arrested and detained without the authorization of a Magistrate. It states

- Every person arrested and detained in custody shall be produced

before the nearest Magistrate within a period of 24 hours of such
arrest.

No such person shall be detained in custody beyond the period of 24 hours without
the authority of a magistrate. The language of Article 22 indicates that the clause
really contemplates an arrest made without a warrant of court.

The idea behind inserting such safeguards was to protect the liberty and dignity of
every individual which has been conferred on them by virtue of Article 21. These
protections will put limitation on the authority and will prevent abuse of power at the
hands of law enforcement agencies. It is interesting to note that these procedural
safeguards were borrowed from the 1898 Code of Criminal Procedure by the drafters
of the Constitution to bring the ‘due process’ element in the procedure established by
law.

7. Statutory recognition of rights of arrested person:

Chapter V of the new Code of 1973 extensively deals with procedure of arrest. It also
outlines duties of officer effecting arrest and the rights of person to be arrested. The
new Code of 1973 incorporated procedural safeguards analogous to the 1898 Code
but the constitutional dimensions of these safeguards were not considered. Many
procedural prerequisites for the exercise of power of arrest were carved out by the
judiciary which afforded these safeguards more effective meaning.6 Law Commission
has also time and again recommended amendments to the Code with the object of
ensuring effective enforcement of the constitutionally guaranteed safeguards.

Finally, the recommendations and court guidelines were incorporated through

amendments to arrest provisions in the new Code by the Code of Criminal Procedure
(Amendment) Act, 2005 and 2008.

6
B. Uma Devi, Arrest, Detention, and Criminal Justice System: A Study in the Context of the
Constitution of India, OUP, India (2012).
Under the changed regime more and more emphasis was given on protection of
individual liberty at the hands of law enforcement agencies. Partially it was done by
making the institutions accountable for every arrest and partially by conferring rights
on arrested persons.

7.1 Institution centric rights:

Chapter V of the new Code has many provisions which imbibe constitutional ethos of
preserving individual liberty and dignity and do not allow them to be curtailed
without following due process. The new Code has made significant departure from its
predecessor and obliges the officers vested with power of arrest to reflect compliance
of constitutional mandate in their conduct.

A. Duty to communicate grounds of arrest:

Section 50 imposes a positive obligation on the officer effecting arrest to

inform the person full particulars of the offence for which he is being arrested.
It casts similar duty on individuals other than police officer making arrest. The
grounds of arrest much be communicated forthwith. This requirement is
similar to the expression ‘as soon as may be’ mentioned in Article 22(1).

The duty to communicate the grounds of arrest was not present under the old
Code which only provided for supply of documents before the commencement
of inquiry or trial. The new Code rectified this anomaly and introduced this
duty in consonance with Article 22(1).

B. Duties of Officer making arrest:

The Code of Criminal Procedure (Amendment) Act, 2008 provided statutory

recognition to the procedural requirements issued by the Supreme Court (SC)
in DK Basu v. State of West Bengal.7 Among other requirements the SC
emphasised on some prerequisites which must be followed by every officer
making arrest.

Guidelines 1, 2 and 3 of DK Basu case are codified in Section 41B which lays
down the procedure of arrest. It requires that

- The police officer making arrest must bear an accurate, visible and clear
identification of his name which will facilitate easy identification;

- The police officer must prepare a memorandum of arrest which shall be

attested either by the member of the family of the person arrested or by a
respectable member of the locality where the arrest is made. The
memorandum of arrest must be countersigned by the person arrested.

7
AIR 1997 SC 610.
 - In case where the memorandum is not attested by a member of his family,
the person arrested shall be informed of his right to have a relative or a
friend named by him to be informed of his arrest.

Guidelines 4 and 6 of DK Basu case form part of section 50A which obliges
the police officer making arrest to forthwith inform the friends, relatives or
such other persons disclosed or nominated by the arrested person for this
purpose about the arrest and place where the arrested person is being kept.

To ensure that the police officer performs his duty without fail, sub section (3)
of section 50A makes it mandatory to enter the details such as the name of the
person informed of the arrest in the book maintained in this behalf in the
police station.

Interestingly, Sub-section (4) of section 50A provides for judicial oversight of

exercise of executive power. The Magistrate on production of the arrested
person must confirm that the arresting authority has complied with the
procedure laid down in sub section (2) and (3) of section 50A.

C. Establishment of Control Rooms:

Section 41C provides for establishment of police control rooms in each district
at state level. The control rooms shall display the names and addresses of the
persons arrested along with the name and designation of the police officers
who made the arrests.

The Police Headquarters at the State level shall collect and maintain a
database detailing the persons arrested and nature of the offence with which
they are charged for the information of the general public.

D. Reporting of Arrest:

Section 58 requires the station house officer to report to the District Magistrate
the cases of persons arrested without warrant along-with the information
whether such persons have been admitted to bail or not.

The new Code provides an inbuilt check to curb unnecessary arrest and
requires review of every arrest by a senior officer or by a jurisdictional
Magistrate. Section 56 states that the police officer making an arrest without
unnecessary delay take or send the person arrested before a Magistrate having
jurisdiction in the case, or before the officer in charge of a police station.
Thus, the officer in charge of a police station is under an obligation to decide
whether the arrest is necessary or not.

7.2 Arrested person centric rights:

The third Report of National Police Commission admitted that the powers of arrest
give ample scope for harassment and humiliation of persons. Many a times exercise of
power is prompted by mala fide considerations. More than 50% arrests are
unnecessary. the constant efforts of Law Commission and Indian Supreme Court
resulted in change of arrest law. Earlier the law was more power centric (giving wide
range of powers to authorities) which post amendments became rights centric
(conferring more rights on individuals to protect their liberty).

A. Production before the Magistrate:

Section 57 corresponds to Article 22(2) of the Constitution. It is desirable

particularly in cases where police officer arrests any person without warrant that
the person arrested must be produced before the nearest Magistrate forthwith.
Section 57 prescribes that the arrested person must be produced before the nearest
Magistrate within 24 hours from the time of arrest. It ensures the immediate
application of a judicial mind to the legality of arrest and the review of subjective
satisfaction of the officer effected arrest.

B. Right to Counsel:

Right to legal assistance in a criminal proceeding has been accepted as part and
parcel of fair trial guarantee. The right is extended to have a legal counsel at state
expenses if the accused is financially incapable of engaging a counsel. While the
right to legal assistance during the trial has become an established norm, the
presence of lawyer during interrogation is still a contentious issue.

As early as in Nandini Satpathy v. PL Dani8 the Supreme Court has extended the
scope of right to counsel to interrogation stage. The Court has taken this view in
light of the right against self- incrimination available to accused person under
Article 20(3) of the Constitution. Though, this view was doubted in subsequent
decisions of the Supreme Court.9

The statutory recognition of right to counsel during interrogation came with the
Code of Criminal Procedure (Amendment) Act, 2008 when section 41D was
inserted in the new Code. Section 41D conferred right on arrested person to meet
an advocate of his choice during interrogation. Section 41D prohibits presence of
advocate throughout interrogation.

In Senior Intelligence Officer, Directorate of Revenue Intelligence v. Jugal

Kishore Samra10 the Supreme Court ruled that the presence of counsel during
interrogation in the context of section 41D allows the counsel to ‘watch
proceedings from a distance or from beyond a glass partition but not within the
hearing distance’. Section 41D does not allow the counsel to whisper in the ears of
accused the answer of questions asked during interrogation.

More recently, in Mohd Ajmal Amir Kasab v. State of Maharashtra11 the Supreme
Court clarified that failure to provide counsel during trial is different from pre-trial
stage. In case of former it will vitiate the trial whereas such failure at pre-trial
stage will result into mere irregularity.

8
AIR 1978 SC 1025.
9
Poolpandi v. Superintendent, Central Excise AIR 1992 SC 1795.
10
(2011)12 SCC 362.
11
(2012) 9 SCC 1.
 C. Right to information:

Every arrested person has right to know the full particulars of offence including
the grounds of arrest immediately. Where the person is arrested for a bailable
offence he must be informed of his entitlement to be released on bail with sureties
(Section 50). This is in addition to the rights conferred by Article 22 of the
Constitution.

The arrested person has right to nominate any person including his friends or
relatives who must be informed his whereabouts by the arresting officer (Section
50A).

D. Right to medically examined:

Section 54 deals with one of the vital safeguards of arrested persons. It protects
arrested persons from custodial torture. The medical examination is conducted to
ensure that the arrested person is not subjected to any violence. The medical
officer is obliged to furnish a copy of such examination to the arrested person or
any one nominated by him. Similarly, section 55A mandates the officer in-charge
of custody to take reasonable care of heath and safety of the accused.

E. No unnecessary restraint:

It is desired that the arrested person is afforded basic human dignity and should
not be subjected to unnecessary restraint to prevent his escape. Section 49 codified
this requirement. The landmark decision of Supreme Court banning handcuffing
was also aimed at restoring the dignity of arrested person.12

8. Latest Development:

The efforts of Law Commission and Supreme Court to rationalise arrest power have
resulted in adding of various progressive provisions in the new Code. For the first
time the ‘necessity principle’ was introduced in section 41 of the new Code. ‘Notice
of appearance’ was enacted in the form of section 41A as an alternate to arrest. The
police officer is required to record reasons in writing for making the arrest. These
initiatives clearly indicate that safeguarding personal liberty is the paramount
consideration of law. Despite these initiatives no real improvement was noticed. The
number of arrest had not come down and the liberty was invaded every now and then.

The hope for improvement has revived when the Supreme Court in Arnesh Kumar v.
State of Bihar 13 taken cognizance of this issue. The Bench opined that ‘the police
have not come out of the colonial image and using arrest powers as a tool of
harassment and oppression.’ The Bench came heavily on the magistracy as well and
observed that ‘detention beyond first 24 hours must be ordered with great care and
caution. Though, the experience reveals that detention is authorised in a routine,
casual and cavalier manner. Therefore, it is the duty of the Magistrate to satisfy
himself that the arrest made is legal and in accordance with law and all the
12
Prem Shankar Shukla v. Delhi Administration AIR 1980 SC 1535; Sunil Batra v. Delhi
Administration AIR 1980 SC 1579.
13
(2014) 8 SCC 273.
constitutional rights of the person arrested is satisfied.’ The Magistrate must peruse
the facts, reasons furnished by the police officer which necessitated arrest and must
confirm that the condition precedent for arrest under Section 41 has been satisfied.

In the concluding para of the judgment the Bench has given eight directions in which
first two were addressed to state governments whereas directions 3-6 were directly
related to role of police and magistracy in cases of arrest. Directions 7 and 8 set out
the penalty for erring officers and judicial magistrates.

The directions issued in Arnesh Kumar case provided the framework required for
effective implementation of arrest law. It has further strengthened the legislative
intent. The latest Report of the National Crime Records Bureau (NCRB) has reflected
drop in the number of arrest for offences punishable with less than seven years for the
first time in last five years.

Recently, the Supreme Court have come up with additional safeguards in cases of
arrest under section 498A, IPC and under the provisions of SC/ST POA Act. In case
of section 498A the Court has recommended for constitution of Family Welfare
Committee to review victim’s complaint and prohibited arrest till the receipt of report
of Welfare Committee.14

Similarly, in the case of Dr. Subhash Kashinath Mahajan v. State of Maharashtra15 the
same Bench have declared that to arrest a public servant under the provisions of the
SC/ST (PoA) Act, prior permission of the appointing authority is must. In case of
private person, approval of the Senior Superintendent of Police is necessary.

9. Summary:

The discussion in preceding lines portrays the development of law governing arrest
regime. It is seen that how the power of arrest which was once treated ‘discretionary’
in nature has been put to certain restrictions. The shift from ‘instant arrest’ to ‘notice
of appearance before the police officer’ is a clear indication that arrest is disfavoured
in law. The power of arrest cannot be used in a routine manner and there must be
sound reasons for the exercise of such power.

At the same time, the constitutional and statutory safeguards ensure that no person
should suffer harassment. The law is aimed at securing personal freedom of
individuals by rationalising the use of power of arrest.

Post Arnesh Kumar case both the police officer and the Magistrate are made
answerable for every single arrest which again reflects on the intention of the
judiciary that nothing is as precious as personal freedom.

14
Rajesh Sharma v. State of U.P. Decided on 27th July, 2017.
15
Criminal Appeal 416 of 2018 decided on 20th March, 2018.