wea manne ancl women + OO 1s prowea rite Om o>) -m™ OAM ACP PPD ove . pa meen caanytan Ma pels og | a fo Aa taking pana cacgped. froor Cr OG| Arrest 1. Meaning and Purpose Arrest means apprehension of a person by leg deprivation of his liberty. For instance, when a police officer ap a pick-pocket he is arresting the pick-pocket; but when a dace hends a person with a view to extract ransom, the dacoit 1s not arres! that person but wrongfully confining him. Secondly, every compulsi physical restraint is not arrest but when the restraint is total and ¢ uion of liberty is complete, that would amount to arrest. Arrest of a person might be necessary under the following circur al authority result! stances: (1) For securing attendance of an_accused at tria —When a per is to be tried on the charge of some crime. his attendance «' time of trial becomes necessary. If his attendance is not lik to be ensured by issuing a notice or summons to him. prooao.y his arrest and detention is the only effective method of » his presence at the tial,! revenive or precautionary measure. —If there is imm: of the commission ol a serious crime (cognizad dang fence), arrest of the person intending to commit such a ct 2 bs : d may become necessary as a preventive measure.” There m Mi other circumstances where it is necessary as a precautionary measure to arrest a habitual offender or an ex-convict. a person found under suspicious circumstances. (3) For obtaining correct name and address.—Where a person. on being asked by a police officer, refuses to give his name and address. then under certain circumstances, would be proper on the part of the police to arrest such a person with a view lo ascertain his correct name and addres: St 42) (4) For removing obstruction to police. —W hoever obstructs a police Officer in the execution of his duty would be and should be hable (2) 1. See S. 204 read with S$. 87: also see clauses (a) and (c) of S 41(1) and S. 43 2 SeeS.15! Sail 3. See S. 41(2) in respect of persons specified in S. 110: see also S. 41 KAY - 2 4. See clauses (b) and (d) of S. 41(1); see also S. 41(2) in respect of persons specitied 19 S. 109. 5. See S. 42.L nares on Criminal Procedure to be arrested then and th e by such ods. caped trom lawlul custody should be <— police.” 1 AIDE 2. Decision to arrest “A person wh oeA Person who fas Arrested forthwith by tne We now know the circumstances in which “arrest of essential or at least desirable, The determination a, at Ol @ Person is such circumstances and the consequent decision to fairly having due regard to the liberty of the indivi or the society. Ideally a judicial officer is best suited to decide with a fair measure of reasonableness. impartiality Therefore. basically it is for a magistrate to make an information generally obtained from the police of ti the magistrate makes a decision to arr aS 1 the existence of attest should be made ‘dual and the interests uch issues, and detachment 1 t he would issue a warrant of arvest. A warrant of arrest is a written order signed. se. J ‘aled and issued by 4 magistrate and addressed to a police officer or some other person specially named and commanding him to artest the body of the (aceused, person named in it Jt would also be seen that there might be circumstances where prompt and immediate arrest is needed and there is no time to approach a magistrate and obtain a warrant from him. For instance, in a case where serious crime has been perpetrated by a dangerous pe son and there is cxery chance of the person absconding unless immediately arrested, it ‘sould be certainly unwise to insist on the arrest being made only after optaining a warrant from a magistrate. There may be occasions where preventive action may be necessary in order to avert the danger of sudden cak of crime, and immediate arrest of the trouble-maker may be an Mportant step in such preventive action. In those cases, often the arrest- vecision will have to be made by a person other than a judicial magistrate. Ip such cases it is the investigating agency which has discretion to effect urests. In exercising its discretion it may sometimes arrest some individ- us whereas their co-accused are not arrested and detained. In such a case the Delhi High Court opined that in a country governed by rule of aw the discretion of the investigating agency does not mean whim, fancy o¢ Wholly arbitrary exercis of discretion®. In all cases where arrests are de by the investigating agency, however, the Code contemplates a judicial scrutiny soon after such arrest. According to the Code, every 6. See S. 41(1Xe). 7. Ibid. 8. See Binoy Jacob v. CBI, 1993 Cri LI 1293 (Del HC). Sheet : 4 Police atticer* essential for the elective discharge of police yet” This isp, | (1) @ ) §) For retaking a person escaped from cus ; oct ace posse stellen aoe ne sa ee 3) P y v 'yi Ce? RSF. 2 4" arren 0 the OHO Anestod without a warrant 1s juired 10 be produced before 1 I sa weihin Sa ure of his arrest.‘The police is repored fy such @ case e within 24 4 ap egal t quite 0 egal requirement qu ‘in Stived by 8 Hucticoal magi We have: 1 Flesurtinnge tht the Kerala High Court riled that whenever a complaint but has Mawistrate that a porson has heen arrested within his jurisdiction a ty Not been produced hetore him within 24 hours or a complaint is MACE ion beyond Him that a person iy being detained within his jurisdict hours of his atvest he cun and should call upon the police off 40 stale, Whether the allegations are true, and if so, on wl whose custody he is being so held, ih IF the officer denies the arrest the magistrate can make an inquiry and 8 appropriate orders.” Further detention shall be illegal untess permitted by & competent judicial magistrate,!? Thuy it would be seen that the Code contemplates two types of arrests: (a) arrest made in pursuance of a warrant issued by a magistrate; and (b) aitrest made without such a warrant but made in accordance with some legal provision permitting such an arrest. ficer concerned hat and under 3. Arrest with a warrant We have earlier seen the distinction between cognizable and non-cog- hizable offences.!' Where a person has been concerned in a non-cogniz- able offence, he cannot, except in a few cases to be considered later, be arrested without a warrant. The Code however does not expressly em- Power a magistrate to issue a warrant of arrest before taking cognizance of any such offence, much less does it mention the circumstances in which such a warrant can be issued, In the absence of any restrictive provision, it may perhaps be theoretically possible for a magistrate to issue a warrant of arrest in case of a cognizable or non-cognizable offence even before taking cognizance of the offence: in practice a warrant for arrest is hardly ever issued prior to taking cognizance of the offence. TA warrant for arrest may be issued by a magistrate after taking cognizance of any offence, whether ‘cognizable’ or “non-cogniz- able’.'?/Here the distinction between a summons case and a warrant cas 9. Pounwinv Sid of Police, 1993 Cri LJ 2183 (Ker HC). See Sections 56 and 57 CrPC and ‘Att, 22(2) of the Constitution, See also Joginder Singh v, State of U.P...(1994) 4 SCC 260 supra n. 72 and Ashak Hussain Allah Detha alias Siddique v. Asstt, Collector of Customs, 1990 Cri LJ 2201 (Bom HC) wherein the High Court observed that the arrest commences with the restraint placed on the liberty of the accused and not with the me Of arrest recorded by the arresting officer. 10. See Ss. $7 and 167 11. See Lecture 1, para 5, Firstly: 12. See $s, 204 and 87,i eee . : ad Lectures on Criminal Procedure (Lect. 4 is refevant.!” If the case in which the cognizance has been taken is a : 1d to the accused person in the summons case, a summons shall be iss and if the case is a warrant case, first instance for his attendance in cou! 4 warrant for the arrest of the accused may normally be issued for causing the accused to be brought before the court.!4 The Code however gives discretion to the magistrate to depart from this general rule if the cireurn- Siances so demand in a particular case.!5 For instance, if, at any time, the magistrate has reason to believe that the accused has absconded or would not obey the summons, he may issue a warrant for his afrest. In practice, however, the magistrate has hardly any occasion tlissue 2 Warrant of arrest if he has taken cognizance of a cognizable offence on “Police report, because, the police report is submitted to the magistrate duct the Police has completed the investigation into the offence: and Curing the investigation the police has power to arrest without warrant a Petson involved in the commission of a cognizable offence.}6 Further the Police is under a legal duty to apprehend every person whom it is legally authorised to apprehend.'? These provisions lead to the arrest and pro- duction of the accused before the court during investigation and therefore there would be no occasion in practice for issuing a warrant after taking Cognizance of any offence can be taken by a magistrate not only jon a police report but also (i) upon receiving a complaint, of (ii) upon information received from any person other than a police officer. or (iif) upon the knowledge of the magistrate himsclf.'* Tn such cases -ge-where the cognizance has been taken ‘on a Police report in respect of a non-cog- nizable offence, the magistrate may issue a warrant for arrest in accord- ance with the above-mentioned rules. Detailed provisions have been made in Sections 70-73 in respect of form and contents of a warrant for arrest." Form 2 in the Second Schedule indicates the form in which such a warrant may be issued. Provisions have been made in Sections 74-81 in respect of the mode of the execution of a warrant for arrest. Sections 37 and 38 deal with the duty and power of a private citizen to assist in the execution of a warrant for arrest. For a general understanding of these matters the sections mentioned above may be looked into. 13, See Lecture |, para 5, Thirdly. 14. See S. 204, 15. See S. 87. 16. See S. 41 17. See S. 23 of the Police Act, 1861. 18. See S. 190. it Sanjay Suri 19. Warrant for detention should specify age of the person to be detained. See v. Dethi Admn., 1988 Supp SCC 160 : 1988 SCC (Cri) 348 : 1988 Cri LJ 70S. cognizance of a cognizable offence on a police report. , K ’PREIS HERS Weng? OMT TTB 0 op rer cast © & Petr offen ir Aap: apelin Ma Hin, Ca Woy Peston Troe lho bmi an nani a) Arg, agri Bicte rriay cette 7 1c iaTD lirartart 3} Arrest 25 { 4 Arrest without # warrant : We have allready seen the necessity of making arrest without a warra under emergent circumstances. Powers to arrest without warrant ax mainly and widely conferred on the police: but in some circumstanc these are conferred on others also. (A) A police officer may arrest without a warrant— (1) any person actually concerned or reasonably suspected (0 concemed in a cognizable offence: (2) any person who, in the presence of such an officer. ha committed or has been accused of committing a non-cogni~ le otience and refuses to give his true name or residence In such @ case the arrest is to be made for the purpose 0 ascertaining the name or residence; and after such ascertain ment the arrested person is to be released on his executine 2 Sond (with or without sureties) to appear before a may) trate if so required. If such ascertainment or execution « bond could not be had within 24 hours from the time o! J arrest. the arrested person shall be forwarded to the nearest pol magistrate having jurisdiction;2! TY, (3) any person concemed or reasonably suspected to be con . cerned in any act committed at a place outside India which it committed in India would be punishable as an offence for which he would be liable to be apprehended or detained in custody in India:? (4) any person for whose arrest any requisition is received trom another police officer competent to arrest that person without a warrant: (5) any person reasonably suspected of being a deserter from any of the Armed Forces of the Union;”+ (6) any person found in possesson of any implement of house- breaking without any lawful excuse: (7) any person found in possession of property reasonably sus pected to be stolen. and who may be reasonably suspected o! having committed an offence with reference to such property 20. See S. 4111 Ka 21 See $. 42. 22. SeeS 411 xg). 23 SeeS sitnny 24. See S. 41h 25. See S411 Kb 26. SeeS 41 1Kd)Lectures on Criminal Procedure 28 (Leet. 2 (8) any person obstructing a pohee officer in the discharge of his duties: (9) any person who ha (10) any released convict under Section 356(5): (11) any person designing £0 Commit a cognizable offence which cannot be prevented (except) by the arrest of such a persons (B) In addition. a police officer in charge of a police station may as 4 preventive measure arrest without warrant any-peron belonging ie one or more of the caiegories of Persons specified(in Section 109 or Section €.g. persons taking precautions to conctal their presence with a (Siew to committing a cognizable offence: habitual robbers, here, breakers. thieves. etc. and persons habitually induleing in the commen of cenain social and economic offences. ‘An unusual situation created by the unlawful arrest of a magistrate by the potice has made the Supreme Court™ issue the following guidelines to be followed by the State Govts. and the High Courts while effecting the arrest of a subordinate judicial officer:— scaped from lawful Custody :2* Mittin 4 breach ¢ any rule made (a) If a judicial officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Coun as the case may be. (6) If the facts and circumstances necessitate the immediate arrest. of a judicial officer of the subordinate Judiciary, a technical or formal arrest may be effected. (c) The fact of such arrest should be immediately communicated to the District and Sessions Judge of the concemed District and the Chief Justice of the High Court. (d) The judicial officer so arrested shall not be taken to a police Station, without the prior order or directions of the District and Sessions Judge of the concerned district, if available. (e) Immediate facilities shall be Provided to the judicial officer, for communication with his family members, legal advisers and Judicial officers. including the District and Sessions Judge. 27. See S. 41(1 Xe) 28. Ibid. 29. See S. 411A). 30. See S. 151. a See S. 41(2); see also $s. 109 and 110 2. Se Delhi Judicial Service Assn. Tis Hazari Court v. State of Gujarat, 1991) 4 SCCme SR. n Arrest : No statement Of a judicial officer who is under arrest be recorded ny medical test gal adviser of the ricer concerned oF anther judicial officer of equal OF F funk, if available (2) There should be no handcuffing of a judicial officer. If aerial violent resistance to arrest is offered or there 1s imminend tor to effect physical arrest in order to avert danger to life sated. the person resisting arrest may be overpowered and et aid In such case, immediate report shall be made to the Dis i the Ps Sessions Judge condemned and also to the Chief Justice of High Coun. ae The Court has added that these are pot exhaustive and that if the arrest and handcuffing are found to be unjustified the police officer would be guilty of misconduct and personally liable for compensation or da ages as may be summarily determined by the High Court. (C) Any private person may arrest without a warrant” — F 1, (1) any person committing a non-bailable and cognizable of- a fence in his presence; or (2) any proclaimed offender. Such a private person arresting another shall, without delay, make ‘over the arrested person to a police officer or if necessary take the arrested person in custody to the nearest police station. The police officer may then re-arrest the person so handed over to him, if any of the above-men- tioned provisions for arrest without a warrant by a police officer is applicable; and if no such provision is applicable, he shall at once release that person. (D) Any magistrate may arrest without a warrant— | “ (J) any person committing any offence within the local jurisdic- ¥ tion of, and in the presence of, such magistrate;>> or (2) any person within his local jurisdiction for whose arrest he 4 4% is competent to issue a warrant2° & Mae the above rules contained in (A), (B), (C) and (D), a member of the Armed Forces shall not 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 Government controlling the concemed Armed Force37 33. See S. 4311) 34, See sub-seciions (2) and (3) of S. 43. 35. See 441) 36. SeeS. 44(2), \ 37. Sees. 45 « e e@ « « « ( ( ,mS a i - = - , > ) => . “a ¢ Aer bier, Ah) Plo ty 28 Lectuhey on Criminal Procedure bec 4 S. Arrest howmade ( es Se og sire oh Whether the arrest to be made is wit Ot OF without a warrant, A 7 tathee it ts necessary. thal in making such an arrest the police officer or other See ime person making the same actually touches or confines the body of the © *@ape person to be arrested unless there be a submission to custody by word or action. An oral declaration of arrest without actual contact or submission to custody will not amount to arrest. The importance of the precise arrest-procedure becomes ob» while determining the question as to whether at a particular time a : was under arrest or not. 7 The Code gives the following powers for effecting an arrest— 46 (1) Bower to use force—{fhe person making an arrest may u Means necessary to make the arrest if the person to be arre: resists the endeavour to arrest him or attempts to evade ratte the power to use necessary force for making | an arrest shall not extend to causing the death of a person who is not accused of an offence punishable with death or imprisonment for life.‘ lt may also be noted that the arrested is not to be subjected to more restraint than is necess to prevent his escape.‘! J Time and again the Supreme Court has been emphasising th: for exercising caution in subjecting the arrested person to handc Since the police has been. allegedly handcuffing arrested persons indis- criminately. in spite of the courts’ warnings, the Supreme Court has ordered thus: ke we “In all the cases where a person arrested by police is produced 9 : before the magistrate and remand—judicial or non judicial— by the magistrate the person concerned shall not be handcutted special orders in this respect are obtained from the Magistrate time of the grant of the remand. When the police arrests a person in execution of a warrant of tute arrest obtained from a Magistrate the person so arrested shall not be Ig handcuffed unless the police has also obtained orders from the Magis- trate for the handcuffing of the person to be so arrested. Where a person is arrested by the police without warrant the police officer concerned may if he is satisfied. on the basis of the 38. See S. 46(1). Also see observations in Roshan Beewt v. Jt. Sey t Govt. of LN. 1984 Cri LJ 134 (FB) (Mad). 39. See S. 46(2) 40. See S. 46(3) 41, See S. 49.Pile 1 RTH 29 : “ Arrest 3) handeuff s necessary to Evidlines piven by us in para above, thai i necessary Jo andi! such a person, he may do so tll the ti sgistrate, Further aD Pogues “7 mash © borsony he hin production before the Magistrate, Further ther Fee BART | se of fetters thereafter can naly be under the orders the OMRYOEE Fs aicendly indicated by u Sa cites ae i (2) Power te search a place.-An occupier of a hous under § on. : legal duty to afford to the police, and to any person acti « warrant of arrest, all the facilities to search the house tor the Purpose of making arrests. If such facilities are denied or : structions are put in the search, the police officer (or other persor executing a warrant) shall have power to use force for entry into the house for search and also for the Purpose hiberating himself in case he is detained in the house. The Powers are subject to reasonable restrictions if the part o! th house to be searched is in occupation of any pardanashir 7 <— woman.* om cE 3) Power —fr police officer may, for the purpose ot ae arresting without warrant any person whom he is authorised 1g. TA a arent trae a person into any place in India,‘ > ie SecF7B Incase the arrest is to be made under a warrapf, Section 77 =< of the Code makes it clear that the warrant may Boexceuted any place in India. However, when a warrant of arrest is to he . executed outside the local jurisdiction of the court issuing it. 1 special procedure as prescribed in Sections 78-81, will have t L be followed, $e wat? 44), Power to obtain assistance —A police officer can reasonably ask any Person to assist him in the taking of or preventing the escane FOF any other person whom he (the Officer) is authorised tw one y Pp 7 arrest.“ The person asked to assist is under a legal obligation to nj » give assistance eee failure on his part is punish : able under Sectj6n 187, LPC watt . , | {5) Power to require subordisare officer to arrest—Any ofticer in Jetta V charge of a police station, or any police officer making an investigation under Chapter XII of the Code, can require any subordinate officer to arrest without a warrant (other than in his Presence) anYeperson who may lawfully be arrested witho: a warrant. and shall deliver to the officer So required an order in H. See S. 4 45. See $37rearrest escapee I person in Lowiyh cacapes of is rescued, ihe racy eaten ew Wony fe rescued may immed MISue and arrest him in wea ‘dia, The person making such a re-arrecs inal tere, Mime powers and duties as Mentioned above sn sub-paragraph and (2) in respect of using force for arrest, and of seach vy place ote” fut Go Sec? 2 After-arrest procedures : Scanch of arrested person.—Whenever a person who is arrested - Shnot legally be admitted to bail, ot is unabie to furmsh bait the police officer making the arrest (or to whom the arrested person is made over after arrest by a private person) may search such a person. and place in safe custody all articies. other than Lee necessary wearing apparel, found upon him. A receipt showing te the articles so seized shall be given.to such a person.fThe police's. = FO siture to take out a recovery re irregularity—was how- — 1: : sole £7 ever held not vitiating the wial.® Where the arrested person is 2% 4 whet € Power 10 (re 990 woman the search shall be made by another woman with strict ae et to decency.*? A 2) Seizure of offensive weapons —The police officer or other person ¢ A 5% ct SI making any arrest may take from the person arrested any offens- > = ive weapons which he has about his person. and shall deliver all weapons so taken to the court or officer before which or whom the arrested person is to be produced.*” (3) Medical examination of accused —If the offence with which the arrested person is charged is of such a nature and is alleged to have been committed under such circumstances that the evidence as to the commission of the offence would be afforded by the medical examination of such an arrested person, then, at the instance of a police officer not below the rank of a sub-inspector, such examination could be made by a registered medical practi- Uoner in order to ascertain the facts that might afford such evidence. For the purposes of such medical examination such force as is reasonably necessary could also be used. If the person é 6. See S.55, ’ 47. See S. 60, 48 s, 3 = eect ¥. State, 1990 Cri LJ 858 (All HC). 2 D Sees. 591 Arrest at «woman the examination sh Pz are istered lady medi be made to be I prac dS. Se under the supervision of. m Fee o', Uboner © viol Fee Neh meen examination a eam LS 0 tt of Aruele 2013) of the Constitution iemself Shonciing the artes person to be # witness” against MEET The examination is not restrictively confined to what is: cat con the body’ itself; it may include testing of blood. spr, semen, urine ete. depending upon the nature of the ease. IF We process of examination is reasonable, then the discomfort. Fh or hurt caused 10 the examinee in such examination is just by the section. “Though the examination is to be done at the instance of @ police officer not below the rank of sub-inspector. that does not mean that other superior police officers or the court concernet are debarred from exercising the power under Section 53 if suctt pe examination, becomes necessary for doing justice in a erimin case Even if an accused person is released on bail he is still “a person arrested on a charge of committing an offence’ as con- templated by Section 53; moreover such a person while released con bail is notionally in the custody of the court (throtigh the ¥ surety) and therefore his medical examination canbe carried out in terms of Section 53.4 (4) Reports of arrests to be sent to District Magistrate—Every AGE ilicer in charge of a police station is required to report to the GeF°" District Magistrate the cases of all persons arrested without warrant. within the limits of his station.*S Person arrested not to be discharged except on bond or bail—A 44 feson who has been arrested by a police officer shall not be we discharged except on his own bond or on bail or under the special order of a magistrate.°® 7. Rights of arrested person (1) Right to be informed of the grounds for arrest—In every case of arrest with or without a warrant the person arresting shall e communicate to the arrested person, without delay, the grounds SI. See S. 53 52. Anil A, Lohande v. State of Maharashtra, 1981 Cri LJ 125 (Bom HC). 53. Ibid. at p. 130, 131 54. Ibid. at p. 137. Also see Thaniel Victor v. State of T.N.. 1991 Cri LJ 2416 (Mad HC). 55. See S. 58. 56. See S. 59,GLY CA .— oS TL sch esi Mm feb aba oh hfe Oe i BES war to te ter as othe Baw 20 pony wi Mou? Gees CeSxnsagyes on Hl Proce for tin arest Thus i a precious ¢ ‘ and has been recognised by the Const fundamental rights Timely information of the grounds of acrest : serves the arrested persom in many ways. It ives hin an oppor Tonty to-remove any mistake, misapprehension or misunder Standing, i any. in the mind of the arresting authority: i 2ls0 Enables him to apply for bail, or for a writ of abeas corpus. OF to make other expeditious arrangements for his defence Right to be informed of right 10 bail—Kvery police officer airesting without ant any person other than 3 person accused of a non-bailable offence, is required to inform the > person arrested that he is entitled 0 be released on bail and he may arrange for sureties on his behalf.” Right 10 be produced before a magistrate without delay.—In case of every arrest, Whether the arrest has Been made with oF without 4 warrant, the person arresting is required, without unnecessary . delay and subject to the provisions regarding bail, w produce the_g- See CSE) arrested person before the magistrate or court having jurisdiction B Kee? FE in the case. Right _of not bei ing devined for more than 24 hours without As 0 judicial scrut in case of every arrest, the person making the uifest is required to. produce the arrested person without un. eat Ss? necessary delay before the magistrate; and it has been categori- 3 Se | cally provided that such a delay in no case shall exceed 24 hours exclusive of the time necessary for the-journey from the place oof arrest to the magistrate’s court! ffhe tendency of certain officers authorised to arrest, to note oe Ofanest in such a Sthok os manner that the accused's production before the magistrate was Al(ah Pe well within 24 hours of the arrest came to be criticised by the V3 Bombay High Court, The Court ruled that the arrest commences Asst C7 ‘ai with the restraint placed on the liberty of the accused and-not Cu $22 Co Writh the time of arrest recorded by the arresting ier Fe ot o) in at ‘at 2 > ~* ‘ight has also been incorporated in the Constitution as off of the fundamental rights. This right has been created with a view (i) 57, See Ss. 50,55, 75 " 58. See Article 22(1) of the Constitution of India. 59. See S. 5012) 60. See Ss. 56 and 76 61. See S. 57, and proviso to S. 76. 62. See Ashak Hussain Allah Detha alias Siddique v. Asstt. Collector of Customs \P), 1990 Cri LJ 2201 (Bom HC) at 2208. 63. See Anticle"22(2) of the Constitution of IndiaTn pp rmercrr itz py 2 uma ' Te a anita E os oi Tipe seer eH enon DD Oy 0A WAG Gen clay horoie dale OuTa we ck WH : IO ES eoretcd? Fey meciced fee (F) Peg BO Mea sidooe 38 ation for the purpose of © ( ommpalling people 1 give inf ung to prevent arrest and confessions, oF as 1h; (if) to prevent police stations being used as though they we of the y sof arrest ; 1 ne aiford © unsuitable 4 purpose for which they are uns bani officer independent 0 0. This healthy prov wore prisone carly recourse (0 a judicta Pee police 01 all questions of bail or disch fae contained in Section 57 enables the magistrates to key et ove the pole investigation and it necessary that she sm should ly 1 enforce this reqtiirement and where ¥ = disobeyed, come down heavily upon the police.® The ene that should be followed in such eases has been spelt « 7 oe Pr eAS OCD, ean Hich Court im Poovun® as discunsed in para 2 above Sect $) Right to consult a legal practitioner fen the Consiiiu z 1 case Provisions of the Code recognise the right of evey thout person to consult a legal practitioner of his choice. rsa begins from the moment of arrest. The consultation w the Wwyer may be in the presence of the poiice officer but not w "Fr > the, CSE te AC cane © (6) Right of an arrested indigent person to free legal aid and + informed about it— in I (II) x. State’ of Bihar”. Supreme Court has held that the State is under a constitutions ASE mandate (implicit in Amticle 21) to provide free legai aid _—— S See FE « ‘ddigent accused person. and that this constitutional obligatior provide legal aid does not anse only when the trial commences t also when the accused is for the first time produced betcre the magistrate as also when he is remanded fiom time to time. Howe | fie ferse this constitutional right of an indigent accused to get tree lez Mah Pete may prove to be illusory unless he is promptly and duly intc about it by the Court when he is produced betore it. The S Ase CalleaTe Court has therefore cast a duty on all magistrates and cou 7a — inform the indigent accused about his right to get free leva . Ce o> It has gone a step further in Suk Das y. Union Territory of Arunachal Pradesh’, wherein it has been categorically laid down that this consi: uonal nght cannot be denied if the accused failed to apply tor it. [i as now clear that unless refused, failure to provide tree legal aid ¢ 64 See Muscmmad Suleman v. King Emperor, 30 CWN 985, 987, (FB) (per Rankor 65. Khatri Hiv. State of Bhar, (1981) 1 SCC 627: 1981 SCC (Cri) 228, 233 33 L470 66. 1993 Cr LJ 2183 (Ker HC) 67. See §, 303 and Amticle 22/1) of the Constitution of India 68. Supra. 65 69. (1986) 2 SC@401 » 1986 SCC (Cri) 166 : 1986 Cri LJ 1084Ee on Criminal Procedure Lectures Weer 3 1, entailing setting lide of the: , would vitiate the eee ned bya medical Practinoner—Ii any arrested be examine came when he is produced before a magis- during the period of his detention in custody, sn of his body will afford evidence which will ion by him of. any offence or which will the commission by any other person of any offence ablish the dy. then the magistrate, on the request of the Hs con, is required to direct the examination of his body arrested perver medical practitioner. However the magistrate need by a eesuch a direction if he considers that the request for rer mination has been made by the arrested person for the examina vexation or delay or for defeating the ends of justice.’ , scoping to the Supreme Court, the arrested accused person must Sad by the magistrate about his right to be medically examined ix ermy of Section 54." 's) The need for having more transparency in the accused-police © lations has been emphasised by the Supreme Court in Joginder Singh v. State of U. formulated ;-— ‘n arrested person being held in custody is entitled if-he so OA per ing | uests to have one friend, relative or other person who is reqi Pe known to him or likely to take an interest in his welfare, told, as far as is practicable that he has been arrested and where he 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 follow from Articles 21 and 22(1) and enforced strictly. The magistrate is oblig« ed to satisfy himself that these requirements have been complied with.” G wherein the following rules have been Apart from the above-mentioned rules the Supreme Court in_D.K. - State of W.B.”* issued the following instructions :-— See S. $4 Sheela Barse y. State of Maharashtra, (1983) 2 SCC 96 : 1983 SCC (Cri) 353 : 1983 ss Cri LI 642. Also see Mukesh Kumar v. State, 1990 Cri LJ 1923 (Det HC). 2. (1994) 4 SCC 260. 3. (1994) 4 SCC 260, 268, 74. (1997) 1 SCC 416: 1997 SCC (Cn) 92.s a Arrest 11Y The police personnel canying. out the arrest and handling ( interrogation of the arrestee should bear accurate, visible a7 clear identification and name tags with their designations 1 Particulars of all such police personnel who handle interrogate" OF the arrestee must be recorded in a register (2) "That the potice officer carrying out the arest of the arrestee shat) prepare a memo of aumestat the time of arrest and such memo, ‘shall be attested by at least one witness, who may either be 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 countersigned PY the arrestee and shall contain the time and date of arrest. (3) 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 tclegraphically within a period of 8 to 12 hours after the arrest. (4) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries. if any 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. (5) The arrestee should be subjected to medical examination by @ 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 State or Union Territory con- cemed. The Director, Health Services should prepare such a panel for all tehsils and districts as well. (6) Copies of all the documents including the memo of arrest referred to above should be sent to the Illaqa Magistrate for his record. (7) The arrestee may be permitted to meet his lawyer during inter- rogation, though not throughout interrogation. (8) A Police Control Room should be provided at all districts 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 it should be displayed on a conspicuous Notice Board. Failure to comply with the requirements herein above-mentioned shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the~ be Se — ~ ~ ~ ~ - Lectures on Criminal Procedure (Leer, Proceedings for contempt of court may be instituted in any High Count Of the country having territorial jurisdiction over the matter The right to. compensation for the victims of unlawful arrest and detention hasbeen recognised by the Supreme Court in Nilabati Behera v of Orissa’ (IRI SCO HE. It ts to be Noted that these instructions are applicable to authorities like Directorate of Revenue Intelligence, Directorate of Enforcement CBA. C.LB., C.LS.R, ete, which have the power to effect arrest and detain persons for interrogation 8. Consequences of non-compliance with the provisions relating to arrest (1) A wial will not be void simply because the provisions relating to arrest have not been fully complied with. (2) Though the illegality or irregularity in making an arrest would Rot vitiate the trial of the arrested person, it would be quite material if such a person is prosecuted on a charge of resistance 10 or escape from lawful custody. (3) If the arrest is illegal, the person who is being so arrested can exercise the right of private defence in accordance with. and Subject to, the provisions contained in Sections 96 to 106 of the IPC. (4) If the public servant having authority to make arrests, knowingly ses that authority in contravention of law and effects an illegal) arrest, he can be prosecuted for an offence under Section 220 of the IPC. Apart from this special provision, any person illegally arrests another is punishable under Section 342 of the IPC for wrongful confinement. (5) If the arrest is illegal, it is a tort of false imprisonment, and the arrested person is entitled to claim damages trom the person who made such an arrest, It has been categorically ruled by the Supreme Court in Nilabati Behera that victims of unlawful arrest and detention have right to com- pensation. ”° It may be mentioned here that the provisions relating to arrest cannot ed by alleging that there was no arrest but only informal detention. Informal detention or restraint of any kind by the police is not authorised by [aw, 75. (1993) 2 SCC 746, Also see D.K. Basu, supra (65c) and Penpie's Union for Ci Libernes v. Union of India, 1997 SCC (Cri) 434. 76. dbid. |