LAW OF CRIMES II

TUTORIAL I

Assignment
DRAFT POLICY OF INDIA: WITH MODIFICATIONS

Submitted by

AALIYA NOORUDHEEN

PRN NO. 21010324097 DIVISION- D CLASS- BBA.LLB

SYMBIOSIS LAW SCHOOL HYDERABAD

Submitted on March 13th 2024

 DRAFT POLICY OF ARREST IN INDIA

ARREST

When a person is arrested, their freedom and ability to move freely are restricted as they are
held in police custody during a criminal investigation. According to Halsbury, arrest involves
physically seizing or touching a person to detain them. Simply stating the word "arrest" isn't
sufficient unless the individual being arrested complies and accompanies the arresting officer.
The Code of Criminal Procedure (CrPC) governs arrest procedures in India but does not
provide a specific definition of arrest. In the case of State of Punjab v. Ajaib Singh1, arrest
was defined as the physical restraint imposed on a person based on allegations or accusations
of committing a crime or a quasi-criminal offense.

PROCEDURE OF ARREST IN INDIA

The Code of Criminal Procedure in India delineates various scenarios under which arrests can
be made. Section 41 permits arresting individuals without a warrant if they are accused of a
cognizable offense, granting police officers the authority to make such arrests. In cases of
non-cognizable offenses, Section 42 allows for the arrest of individuals who provide false
information regarding their identity and whereabouts to police officers. Additionally, Section
151 empowers police officers to arrest individuals based on suspicion of their potential
involvement in a cognizable offense, even if the offense has not yet been committed. Sections
70-81 outline the procedures for arrests with a warrant, which involves the issuance of a
warrant by the court and the subsequent authorization given to police officers to apprehend
the specified individual.

How arrest is made?

Section 46(1) prescribes that while making an arrest, the police officer shall actually touch or
confine the body of the arrested unless there is a submission to the custody by word or action.
A woman’s arrest shall be made on oral intimation unless the circumstance requires
otherwise by a female police officer while not touching the woman.

Section 46(2) says if such a person resists the arrest or they try to evade the arrest, the police
officer shall use necessary means to effect the same.

1
Section 46(3) says that the Code does not give the right to cause death to someone accused of
a crime punishable with death or life imprisonment.

Section 46(4) safeguards women and says no woman can be arrested before sunrise. After
sunset, except under exceptional cases, a female police officer will effectuate arrest by
making a written report and obtaining prior permission from the Judicial Magistrate.

RIGHTS OF ARRESTED PERSON

A. Right to know the grounds of arrest- Under Section 50, when an arrest is made without
a warrant, the grounds on which the arrest is made should be informed. By section 50A,
the same grounds must be informed to the relatives and friends of the arrested, whomever
he has nominated. Section 55 expressly requires that whenever a subordinate, on orders of
a police officer, arrests someone, the same shall be produced with a written order. Article
22(1) of the constitution also mentions that the arrested should be informed of the
grounds expeditiously.
B. Right to be produced before Magistrate without delay- Section 55 says when an arrest
has been made without a warrant, then without unnecessary delay produce him/her to the
magistrate and under section 76, when arrested with a warrant, produce them to the court
within 24 hours excluding the time of travel. Under section 57 person arrested cannot be
detained for more than 24 hours, same as mentioned in Article 22(2), except for a longer
period, a special order of magistrate is required under section 167.
C. Right to Bail release- Under section 50(2), when an officer arrests without a warrant for
a non-cognizable offence, he shall be informed about his right to bail.
D. Right to Fair Trial- Though not mentioned expressly in CrPC and India Constitution,
this right is interpreted from Articles 14 and 21.
E. Right to consult a lawyer- Right to consult a lawyer during interrogation under section
41D, and same under Article 22(1).
F. Rights to free legal Aid- Under section 304, when accused, no sufficient means to
appoint State shall provide the same. The same has also been mentioned and given under
Article 39A.
G. Right to remain silent- Article 20(2) gives the principle of self-crimination.
H. Right to be examined by the medical practitioner/officer- Enshrined under Section 54.
MODIFICATIONS

Although Article 21 of the Indian Constitution is phrased negatively, the Supreme Court's
Constitutional Bench in the case of Kharak Singh v. State of U.P. elucidated the concept of
"personal liberty" within it, drawing parallels to the interpretation of "life" in the fifth and
fourteenth amendments of the US Constitution. In the case of Maneka Gandhi v. Union of
India, the phrase "procedure established by law" was scrutinized, establishing that not just
any legal procedure would suffice; only those that are reasonable, fair, and just would be
deemed acceptable. Article 21 must meet the standard of reasonableness to align with
Articles 14 and 19, ensuring that it is "right, just, and fair," not arbitrary or oppressive.
Despite numerous judgments and recommendations from bodies like the Law Commission
and Police Commission addressing these issues, there hasn't been significant change to ensure
police adherence to the Rule of Law. Instances abound where individuals are arrested
without just cause, often for corrupt motives, leading to unjust suffering for innocent people.
These individuals are sometimes detained without proper record-keeping, denying them
access to legal assistance and infringing upon their fundamental rights under Article 21.

Therefore, it is imperative to review the relevant provisions in the Criminal Procedure Code
of 1973 and propose necessary modifications to address these concerns:

1. Need to Amend the Despotic Powers of Arrest in Section 41

Section 41(1)(b) of the CrPC allows for arrests to be made based on reasonable suspicion,
but the broad language and resulting wide discretion given to police officers have led to
significant abuse and misuse. There is a pressing need for reforms that don't diminish police
power but instead enhance accountability and transparency. Unchecked authority to make
arrests has led to various transgressions, including false arrests, prolonged detention,
fabrication and manipulation of evidence, police brutality resulting in detainee abuse,
custodial deaths, and more. While violence and brutality may sometimes be rationalized,
unjust detention lacks such justification and can only be rectified through the due process of
law in court. Failure to bring the accused before a magistrate for custody undermines the
necessary record-keeping procedures. Instead of relying on objective and scientific
investigation methods, courts often rely on evidence provided at the discretion of the police,
leading to bias. Therefore, magistrates must outline specific orders and guidelines for
disciplinary actions in cases of arbitrary arrests. The aim should be to strike a balance
between safeguarding human rights and combating organized crime and deteriorating law and
order. Court decisions addressing the arbitrary powers of the police should be integrated into
the CrPC to ensure oversight of such authority. For instance, the ruling in the case of Arnesh
Kumar v. State of Bihar2 determined that arrests should not be made solely because an
offense is non-bailable and cognizable. Consequently, Section 41(1)(b), which permits arrests
based on reasonable suspicion, should be repealed, and clear criteria should be established to
justify arrests without a warrant, such as those recommended by the National Police
Commission (NPC).

Arrest should be made on these criteria:

 “In case of grave offences where it is necessary to put a restraint on the action of the
accused, specifically in cases of rape, dacoity, murder and other grave offences.

 Where there exists a threat that the accused may abscond from the processes of law.

 There exists sufficient knowledge that the accused might resort to violence, and it is
necessary to restrain him.

 Where the accused is a habitual offender and has committed many such offences that it
becomes necessary to restrain him.”

In the case of Pradeep Kumar Tiwari v. State of NCT Delhi,3 the Delhi High Court
interpreted Section 41(b) and emphasized that the police must be "satisfied" that an arrest is
necessary, with pre-existing conditions justifying the arrest, and such reasons must be
documented in writing. However, the term "satisfaction" places considerable discretion in the
hands of the police, making it subjective and prone to manipulation and misuse. Police
officers could easily claim satisfaction based on their own interpretation, alleging that the
conditions warranted the commission of a cognizable offense.

2. No specific Section for the detailed arrest procedure for Pregnant women.

Though restraints should only be used on pregnant women as a last resort, women must
never be restrained during labour, but still, pregnant women can be arrested by the law;
However, the Code lacks specific provisions detailing the manner of arrest in such cases.
There are legal safeguards in place to protect the health and well-being of pregnant women,
as outlined in Section 437 of the CrPC, which allows courts to grant bail to women,
individuals suffering from serious ailments, or those under the age of 16 when arrested for
2
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
3
Pradeep Kumar Tiwari v. State of NCT Delhi, (2022) 2 HCC (Del) 407.
non-bailable offenses. Despite the National Prison Manual's directive for the temporary
release of pregnant women for childbirth outside of prison, there have been instances where
both mother and child endure physical and mental agony due to the neglect in the legal
framework4.

One such case occurred during the 2019 CAA movement, where Safoora Zargar, a 23-week
pregnant student, was arrested for her inflammatory speech against the CAA. Despite her pre-
existing health conditions due to pregnancy, she was incarcerated in Tihar Jail amidst the
pandemic. After repeated denial of bail applications by the Delhi High Court, she was
eventually granted bail under Section 437 on humanitarian grounds. The court noted that her
case was exceptional due to the combination of her health issues, the COVID-19 pandemic,
and her pregnancy, implying that she might not have been granted bail otherwise. This arrest
contravenes detention provisions outlined in the International Covenant on Civil and
Political Rights (ICCPR) and the Tokyo Guidelines, which are the UN's Basic Standards
for Non-Custodial Measures.

Article 9(1) of the ICCPR underscores the right to liberty and security under the law while
condemning arbitrary arrest and imprisonment. According to the Human Rights
Committee, an arrest may be deemed arbitrary if it lacks justification or propriety.
Additionally, Article 9(3) of the ICCPR emphasizes exploring alternatives to detention. The
Tokyo Rules stipulate that the detention of pregnant women should be a last resort. This
highlights the stern approach of both the judiciary and the legislature towards pregnant
women. The CrPC should establish proper arrest procedures and restrict the arbitrary arrest of
pregnant women.

In the international context, Rule 64 of the UN Rules for the Treatment of Women
Prisoners and Non-custodial Measures for Women Offenders extensively discusses the
exercise of discretion and the avoidance of custodial sentences for pregnant women and
women caring for young children independently.
Also, Recommendation 58 of The WHO and UNODC Report related to the health of
women in prisons (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”.

3. Emerging Custodial Violence

a) Reducing the 24-hour time-frame of producing arrested to Magistrate.

4
Home Page:Bureau Of Police Research And Development, Government of India, https://bprd.nic.in/ (last
visited Mar 13, 2024).
 Section 57 of the CrPC stipulates that a person cannot be detained in police custody for
more than 24 hours. However, during this period, suspects are frequently subjected to
torture, sometimes resulting in fatalities. Law enforcement's involvement in causing
harm to individuals based solely on reasonable suspicion, often to coerce confessions
inadmissible in court, is deeply concerning. Proving police culpability in such cases is
extremely challenging, as all evidence typically remains in police custody, making it
nearly impossible to establish wrongdoing. Furthermore, before being presented before
a magistrate, suspects endure significant torture and are often coerced into silence
about their ordeal. The 24-hour timeframe for producing suspects before a magistrate
is deemed unreasonable, particularly in the era of technological advancements.
Therefore, there is a pressing need to reduce this timeframe to prevent its potential
misuse.

b) Amending Section 176 to make it mandatory to conduct magistrate enquiry in

custodial death in police custody and addition of Section 154(A) as suggested by
152nd Law Commission Report on mandatory FIR registration.
Section 176(1) grants discretionary power to any magistrate with jurisdiction to
conduct an inquiry in cases of unnatural death in police custody. The use of the term
"may" in this section indicates that such inquiries are not obligatory but left to the
discretion of the magistrate. However, the addition of Section 176(1A) imposes a
mandatory obligation to investigate instances of death, disappearance, or alleged rape
of a woman. Nonetheless, the scope of inquiry under Section 176 appears to be
restricted, particularly as Section 176(1A) was initially interpreted to apply only in
cases where a person died due to custodial violence rather than natural causes. Section
176(1A) would only be invoked if foul play, criminal activity, lack of evidence, or
allegations of an offense were absent. This narrow interpretation led to an increase in
reported custodial deaths classified as natural deaths. The National Human Rights
Commission (NHRC) has outlined guidelines for conducting inquiries within 24 hours
of a custodial death, with authorities mandated to report such deaths and submit
inquiry reports within two months of the incident.

Furthermore, registering a First Information Report (FIR) is mandatory in cases of

custodial deaths under Section 154, but this requirement is sometimes overlooked. The
152nd Law Commission report suggests a solution to this issue, proposing the addition
 of a new provision, Section 154(A), which would empower aggrieved parties to
approach a Judicial Magistrate or trigger a suo-moto inquiry, based on preliminary
inquiry findings.
c) Addition of the Right of Fair and Speedy trial in CrPC
The Sixth Amendment of the US Constitution guarantees the right to a speedy and
public trial in all criminal prosecutions. Similarly, the International Covenant on
Civil and Political Rights of 1966, Article 14(3)(c), ensures that individuals charged
with a criminal offense are entitled to a trial without undue delay, while Article 16 of
the Draft Principles of Equality of Justice mandates the right to a prompt and
speedy hearing for everyone. Although Section 157 mandates that police submit a
report to the magistrate promptly after an arrest and Section 309 presumes cases will
be dealt with expeditiously, the Code of Criminal Procedure does not explicitly
mention the right to a speedy trial. Instead, this right is implied in the spirit of the Code
but is not expressly claimable.

Article 21 of the Indian Constitution guarantees the right to life and personal liberty,
extending these protections even to prisoners and those under arrest. The right to a
speedy trial is inherent in Article 21, as interpreted by the Supreme Court in various
cases. In the landmark case of Hussainara Khatoon v. Home Secretary, Bihar, the
Supreme Court held that the right to a fair trial is inherent in Article 21. This case
highlighted the plight of over 40,000 under-trial prisoners in Bihar jails, some of
whom remained in detention for years beyond their actual punishment due to trial
delays. It was established that suspects cannot be detained indefinitely, and they have
the right to a speedy trial.
In the case of Kadara Pehadiya v. State of Bihar, the Supreme Court noted that the
accused were unaware of the progress of their case as their trial took three years to
commence. Despite being implied in Article 21, the fundamental right to a speedy trial
has remained largely unfulfilled, serving as little more than a theoretical commitment
without practical implementation. In both of these cases, the Court emphasized that the
right to a speedy trial is inherent in Article 21, affirming the accused's right to petition
the Court for its enforcement.

Therefore, it is imperative to explicitly introduce the right to a speedy trial as a distinct

right within the Code of Criminal Procedure. This would ensure that it transcends mere
 rhetoric and becomes a tangible entitlement that can be asserted by individuals as an
express legal right.

CONCLUSION

Over the course of various amendments, the Code of Criminal Procedure has aimed to
provide comprehensive arrest procedures and rights for those who are arrested. However, like
any policy, there are inevitably some loopholes and imperfections. If law enforcement
agencies in India are to be held accountable for their actions, it is crucial to implement
necessary amendments that clarify the Code and eliminate any ambiguous areas that could
potentially be exploited for misconduct.