SYMBIOSIS INTERNATIONAL (DEEMED UNIVERSITY)

TOPIC

DRAFT ARREST POLICY OF INDIA

SUBMITTED BY

NAME: SWETA BASU

PRN: 21010323133
Division- B

BA LLB (2021-26)

UNDER THE GUIDANCE OF

DR.HIFAJATALI SAYEED

Assistant Professor

Symbiosis Law School, Hyderabad

 DRAFT ARREST POLICY IN INDIA

INTRODUCTION
Arrest – this is a word which one can see in every newspaper or news clipping very often.
‘Police arrested the wrong person’ or ‘Police arrests the accused for a particular reason’ are
phrases which catch the layman’s eye in every morning newspaper or evening news but what
is arrest or what is the procedure of arrest or what are the rights that the accused person has
while the arrest is being conducted against him are elements which concern the criminal law
or the criminal procedure.

The word ‘arrest’ has not been properly defined in the Criminal Procedure Code which enlists
the all procedures related to criminal matters. Therefore if one goes by the Cambridge
Dictionary definition it defines arrest as “to use legal authority to catch and take someone to a
place where the person may be accused of a crime” whereas the Collins Dictionary defines it
as “to deprive (a person) of liberty by taking him or her into custody, esp under lawful
authority” while the Black Law’s Dictionary defines arrest as “To deprive a person of his
liberty by legal authority.” Hence, from the given three definitions, a fair precise definition of
arrest can be made out as a condition in which a person is taken under legal custody by an
authorized police personnel and deprives him of his liberty but through a legal procedure.

PROCEDURE OF ARREST

The Code of Criminal Procedure which lays down the procedure as to arrest of persons in
India lays down different situations as to how an arrest can be affected. Sec 41 lays down
arrest of persons without warrant if the person is accused of cognizable offence then the
police officer has the power to arrest without warrant as well as in non cognizable offences if
the person produces false information to the police officer as to his name and whereabouts.
Sec 151 also allows the police officer to arrest a person on the suspicion that the person
accused may commit a cognizable offence though he has not committed one yet. Sec 70-81
talks about arrest with warrant which includes the process of issuing a warrant from the court
and subsequently the authority the police officer gets through the warrant to arrest that
person.
Sec 46 of CrPC talks on the exact method as to how to do an arrest and states that a police
officer has the power to confine the body of the person under arrest and also the code makes a
provision for the arrest of female accused by stating that only a lady officer is to arrest a
female to prevent any untoward incident and only in exceptional circumstances will a male be
allowed to make arrest of a female but he has to record reasons for the same in writing which
will later be examined by the Magistrate. Lastly by virtue of sec 46(3) a police officer has no
right to cause the death of the accused unless he is accused of an offence extending to life
imprisonment or death penalty.

Further, it can also be seen that the Code of Criminal Procedure also enshrines several rights
which are available to the accused persons while undergoing an arrest. The law presumes
‘innocent until proven guilty’ which means that the accused has the right to be treated fairly,
with all human dignity and all human rights should be guaranteed to him and he should be
respectfully presented before the court until he is proven guilty.

RIGHTS AVAILABLE TO ACCUSED

The rights which are available to accused person cover wide range which includes right to be
informed of the grounds of arrest whether such comes under bailable or non bailable offence.
Sec 50(1) of CrPc. Sec 50(2) further continues on this stance stating that if a person is being
arrested on bailable offence then the police officer has the duty to inform the same to the
accused that he can be released on bail.

Sec 161 also substantiates to state that if the investigation is not completed within 60 or 90
days then the accused is entitled to bail by default.

Sec 56 states that the accused is to be produced before the Magistrate without any further
delay and as early as possible within 24 hours of the arrest.

Other rights under the code include the right to a legal practitioner where the accused is
entitled to consult his lawyer from the moment he comes under arrest.

The right to free legal aid is also available incase the accused is not able to afford a legal
practitioner to represent him the state will appoint one for him. Lastly it is the right to get
medically examined under section 54 so that he may be able to disprove his offence via
medical examination.
Further the Constitution of India also guarantees him rights under Art 21 which states that
even an accused person cannot be stripped of the basic human dignity and guarantees
personal liberty until he is proven guilty and Art 22(2) states that the arrested person has to be
informed of the grounds of arrest as well as the right to consult a lawyer of his choice.
Further Art 39A of the Constitution allows the accused to be entitled to free legal aid by the
State through which he will be given a legal practitioner who will defend him.

SUGGESTIONS AND MODIFICATIONS

1. Directive Criterion to be included in sec 41(b) to narrow down the scope of

arrests based on reasonable suspicion

Sec 41(b) – the wordings of this section state that the police can arrest an accused person
even on ‘reasonable suspicion’ that the accused might commit a cognizable offence. This
phrase ‘reasonable suspicion’ vests an enormous power with the police to arrest any person
on mere suspicion. Thus it offers a wide scope to the police which they can misuse very
easily hence bars should be put on the usage of this particular phrase by the police.

In the 177th report of the Law Commission, it has been stated that this power has been
misused by the police very many times and even the Supreme Court and High Court have in
various cases issued guidelines as to regulate the behavior of the police and restrict their
power. According to this report, such arrest violates the human rights and the right to life and
personal liberty as enshrined under Art 21 1 of the Constitution of India. Moreover, according
to the said report, arrest of persons should be with warrant and such should be restricted only
to the major crimes like murder, rape, dacoity, etc.

Further looking into some of the known international conventions it can be seen that Art 9 of
the Universal Declaration of Human Rights (UDHR) states in clear words “No one shall
be subjected to arbitrary arrest, detention or exile” or in other words it places the personal
liberty of an individual over arrests to prevent arbitrariness. But the phrase ‘reasonable
suspicion’ in Sec 41(b) leaves room for arbitrariness and the police can use this provision to
arrest and detain the accused and even cause custodial deaths or use third degree in the name
of extracting information the whole basis of which is just a mere suspicion and hence the
scope of the same should be narrowed down.

1
IND CONST. art 21
Further it can be seen in the case of Pradeep Kumar Tiwari v. State of NCT, Delhi2, the
Delhi High Court has derived the meaning of the sec 41(b) and has stated that the police has
to be ‘satisfied’ that such arrest was necessary and such conditions preexisted to effectuate
the arrest and such has to be recorded in writing. But again the hint is to the ‘satisfaction’ of
the police or the fact that it is very subjective in nature and can be easily manipulated and
misused by the police in the name that he was satisfied that such conditions would have led to
the commission of a cognizable offence.

Further in the case of Arnesh Kumar v. State of Bihar3, the Court has stated that the police
must be able to justify the arrest and hence to ensure the same ‘arrest on mere reasonable
suspicion’ must be scraped and directive grounds must be included while making the arrest.

Hence, sec 41(b) should be amended in a way so that constructive and objective criterion are
provided which will not rest on the judgement or presence of mind of the police but will have
objective and directive criterion which the police will adhere to while making an arrest.

2. Special Provision to be incorporated within 174(1) of CrPC to deal with custodial

violence and death exclusively and make conduction of inquiry by Magistrate
mandatory

In the case of State of MP v. Shyamsunder Trivedi 4, the court has stated that the
police have a shared ‘brotherhood of silence’ that is they will never in no circumstance
will tie the cuts of companionship and will always remain silent in the case of a custodial
death if such occurs which makes it difficult for the victim’s family to approach the
police and file an FIR for the same and bring the same in action even though under Sec
174(1) the police is supposed to bring such suspicious deaths in custody to the cognizance
of the nearest magistrate.

Though this fact has been taken into cognizance and in furtherance of same Sec 176(1A)
has been inserted via an amendment in 2005, but the problem has still persisted. The
reason for the same being that in this provision the Magistrate is empowered to hold an
inquiry for deaths arising in such suspicious circumstances which will go on parallel to
the police investigation within 24 hours of the death of such person. But again the word
‘may’ used in the section suggests that such power is only discretionary in nature and
Magistrate is under no obligation to mandatorily conduct such an inquiry which again is
2
Pradeep Kumar Tiwari v. State (NCT of Delhi), (2022) 2 HCC (Del) 407
3
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
4
State of M.P. v. Shyamsunder Trivedi, (1995) 4 SCC 262
 unfair on the victim family and acts as no impetus to curb the custodial deaths and the
same has been ever increasing.

In the landmark case of DK Basu v. State of West Bengal5, guidelines were issued by
the Supreme Court regarding arrests notable of which are the prohibition of third degree
to extract information, the right of the arrestee to let his relatives know about his place of
arrest as well as the right to medical examination every 48hours to examine the injuries
inflicted on his body so as to determine what kind of treatment he has been going through
in detention. But again these are mere guidelines which are hardly followed as can be
seen in a PIL filed in 2020 where it was observed that 827 deaths or disappearances
occurred while in custody between 2005 – 2017 with judicial intervention being only in
166 cases which is a mere 20% of the total number.

In Francis Corallie Mullin v. The Administrator, Union Territory of Delhi 6, it was

observed by the Supreme Court that it is implicit in Art 21 that an arrested person has the
right to protection against torture and inhuman degrading treating which is also being
violated when the prisoners are subjected to custodial violence.

Moreover Art 5 of the Universal Declaration of Human Rights, also prohibits against
“torture or cruel, inhuman or degrading treatment or punishment”

Lastly, the Law Commission in its 152nd report recommended the addition of an extra
section in the Code of Criminal Procedure in the form of Sec 154A which will deal only
with custodial deaths and will make the lodging an FIR mandatory and obligatory on the
police this recommendation never found its way into the Code.

Hence, there is an urgent need to amend Sec 174 of the Code in the form of adding an
extra section to deal exclusively with Custodial deaths in accordance with 152 nd report of
Law Commission and make the conduction of inquiry a mandatory obligation on the
Magistrate rather than keeping it merely discretionary.

3. Introduction of the Right to Speedy trial as a separate express right in the

Criminal Procedure Code along with the other rights mentioned

Though Sec 157 which talks about how the police is obligated to submit a report to the
magistrate as early as possible after an arrest or sec 309 which states preumtously that

5
D.K. Basu v. State of W.B., (2015) 8 SCC 744
6
Francis Coralie Mullin v The Administrator, Union Territory of Delhi, AIR 1981 SCC 608
 cases are to be dealt with expeditiously but still there is no express mention of a right to
speedy trial in the criminal procedure code which means that the right to speedy trial is
available to the arrested persons only in spirit of the Code and not as a claimable express
right.

Art 21 of the Indian Constitution7, guarantees life and personal liberty even to the
prisoners and arrested persons. And the right to speedy trial is inherent in it as has been
interpreted by the Supreme Court through various cases.

In the landmark case of Hussainara Khatoon v. Home Secretory Bihar 8, in these series
the Apex Court has stated that the right to fair trial is an inherent right in Art 21. In this
case it was observed that there were more than 40,000 under trial prisoners in the Bihar
jail and some of them remained in detention for years more than their actual punishment
because the trial was never conducted. This case established that suspects cannot be kept
in detention for an indefinitely long period and the right to speedy trial is available to the
arrested persons.

Further in the case of Kadara Pehadiya v. State of Bihar9, the Apex Court had observed
that in the instant case, the arrested did not even know the developments of their case as
their trial took 3years to begin and the fundamental right to speedy trial which is inherent
in Art 21 has merely remained a paper promise and no implementation is made. The
Court has reiterated in both these cases that the right to speedy trial is inherent in Art 21
and the accused has the right to approach the Court for the same.

Art 14 cl 3( c ) of the ICCPR states that anyone who is charged with a criminal offence
shall be tried without undue delay coupled with Art 16 of the Draft Principles of
Equality of Justice requires that every one shall be guaranteed the right to prompt and
speedy hearing thus establishing that right to speedy trial is recognized as an essential
human right.

Hence, it is necessary to introduce the right to speedy trial as an express right in the CrPC
so that it does not remain a mere paper promise but can be claimed as an express right.

7
Supra note 1
8
Hussainara Khatoon (I) v. Home Secy., State of Bihar, (1980) 1 SCC 81
9
AIR 1981 SC 939
4. New provision to be included in the CrPC which will grant bail to the Pregnant
women for childbirth irrespective of the nature of offence she has been arrested
for amongst other safeguards

Sec 437 of CrPC grants bail to women and people suffering from ailments arrested on
suspicion for a non bailable offence but still there is no specific procedure or provision
made out in the CrPC that safeguards the rights of the pregnant arrested women.

The National Prison Manual also provides for temporary release of women for giving
childbirth outside the prison but the same is hardly followed. Art 9(1) of the ICCPR
particularly prohibits arbitrary arrests and detention which violates the liberty and
security of a person. By not having any particular procedure chalked out for pregnant
women the security as to her health is being violated. The same convention also stresses
in its Art 9(3) that pre- trial detention should be the last resort.

Even Rule 64 of the UN Rules for the treatment of Women Prisoners and Non -
Custodial Measures for Women offenders observes the exercise of discretionary
powers and avoid custodial sentences to pregnant women. Coupled with
Recommendation 58 of THE WHO and UNODC report on the health of women
prisoners (2009) states that “to protect the health of the mother and of the newborn child
pregnancy should be in principle an obstacle to incarceration, both pre-trial and post-
conviction and pregnant women should not be imprisoned except for absolutely
compelling reasons”

It can be concluded thus that the international conventions are very strict when it comes
to providing safeguards to pregnant women in jails and hence there is an urgent need for
India also to chalk out a clear cut procedure which will provide for the safeguard to
pregnant women in custody and will allow them bail at the first instance to go outside for
child birth irrespective of whether the woman has been arrested for a bailable or a non
bailable offence.

It can be concluded thus that no law is perfect neither is the Code of Criminal Procedure
and has to be amended accordingly to stand the test of time and keep in parity with the
new and changing circumstances.