In this blogpost, Krishna Sharma, a student at Law center- 2, Faculty of Law, University of Delhi, describes and analyses Illegal Detention.
One of the most dangerous cocktails in democracy is when those who are meant to enforce the law take the law into their own hands. Every week in India, several citizens – usually the poor and those from the weaker section of the society- are victims of custodial violation. Custodial Violation includes unlawful detention, illegal arrests, custodial deaths, and torture. According to Hindustan Times report, “1000 unlawful detention cases in India every year, UP and Delhi lead”. Illegal detention is the unjustifiable imprisonment or the unlawful deprivation of liberty by the way of “arrest” for a wrongful cause or suspicion and continued restriction of freedom by such person in custody. The most disturbing aspect of custodial violence is that it strikes at the very root of the rule of law in a democracy and shatters the faith of the citizens in the criminal justice system. Let’s, now understand the term “arrest” and its process.
The term “arrest” is a very common term that we pick up a lot in our life. Normally, we see when a person, who does or has done something against the law, gets arrested. Generally, the term “arrest” in its ordinary sense, means the apprehension or restraint or the deprivation of one’s personal liberty. Let’s understand this term in Indian law, Criminal procedure Code, 1973 in its chapter V (section 41 to 60) deals with arrest of a person. Ironically, Code has not defined the term “arrest”. Every deprivation of liberty or physical restraint is not considered arrest. Only the deprivation of liberty by legal authority or at least by apparent legal authority, in a professionally competent and adept manner amounts to arrest. Thus, we can say arrest means ‘apprehension of a person by legal authority resulting in deprivation of his liberty’.
An arrest consists of taking into custody of another person under authority empowered by law for the purpose of holding or detaining him to answer a criminal charge and preventing the commission of a criminal offence. However, a person against whom no accusation of crime has been made may be arrested /detained under a statute for certain purposes like removal in safe custody from one place to another, for example – removal of a minor girl from a brothel. One thing to be noted that ‘custody’ and ‘arrest’ does not have the same meaning. The taking of a person into judicial custody is followed after the arrest of the person by a Magistrate on appearance or surrender. In every arrest, there is custody but not vice versa. Thus, merely taking into custody a person which an authority is empowered to arrest may not necessarily amount to an arrest.
This code propose two types of arrests:
- arrest made in pursuance of a warrant issued by a magistrate
- arrest made without such a warrant but made in accidence with some legal provision permitting such arrest.
Who Can Arrest?
An arrest can be made by a police officer, magistrate or any private person. You or me can also arrest a person but that can be made only in accordance with some legal provision permitting such arrest. The code exempts the members of armed forces from being arrested for anything done by them in a discharge of their official duties except after obtaining the consent of the government (Sec. 45).
Any private individual may arrest a person only when the person is a proclaimed offender and the person commits a non-bailable offence and cognizable offences in his presence (sec. 43). Any magistrate (whether executive or judicial) may arrest a person without a warrant (sec. 44). Under section 41, arrest by a police officer can be made without a warrant only in cognizable offences (sec.2(c)) and with a warrant in non cognizable offences (sec 2 (l)). Cognizable offences are of more serious nature as compared to non cognizable offences i.e. Murder, kidnapping, theft, etc.
How Is An Arrest Made?
Sec. 46 describes the mode in which arrests are to be made (whether with or without a warrant). In making an arrest the police officer or any other person making the same actually touches or confines the body of the person to be arrested unless there is a submission to custody by words or action. When the police arrests a person in execution of a warrant of arrest obtained from a magistrate, the person so arrested shall not be handcuffed unless the police have obtained orders from the magistrate in this regard.
The person making an arrest may use ‘all means’ necessary to make an arrest if a person to be arrested resists or attempts to evade the arrest. A police officer may, for the purpose of arresting without warrant any person who is authorized to arrest, pursue such person into any place in India (sec 48). Arrested persons shall not be subjected to unnecessary restraint and physical inconvenience unless it’s necessary to do so to prevent his escape (sec. 49).
Rights Of Arrested Persons
Arrest of a person is made in order to ensure his presence at the trial in connection with any offences to which he is directly or indirectly connected or to prevent the commission of a criminal offence. In law, there is a principle of “presumption of innocence till he has proven guilty” it requires a person arrested to be treated with humanity, dignity and respect until his guilt is proven. In a free society like ours, the law is quite careful toward one’s “personal liberty” and doesn’t permit the detention of any person without legal sanction. Even article 21 of our constitution provides: “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The procedure contemplated by this article must be ‘right, just and fair’ and not arbitrary, fanciful or oppressive. The arrest should not only be legal but justified also, Even the Constitution of India also recognize the rights of arrested person under the ‘Fundamental Rights ‘and here I will inform you about those rights:
- Right to be informed of the grounds of arrest under sec. 50 of crpc and article 22 of Indian Constitution, it’s a fundamental right to be informed. It is the duty of the police officer to inform you and also tell you whether the offence is bailable or non-bailable. Normally, bailable offences are those where bailable can be granted and it is right of the person to be granted bail. Non-bailable offences are where bail can’t be granted generally and it is upon the discretion of the court.
- In non-cognizable cases, arrest is made with a warrant and the people going to be arrested have a right to see the warrant under Sec. 75 of crpc. Warrant of arrest should fulfill certain requirements such as it should be in writing, signed by the presiding officer, should have a seal of court, name and address of the accused, and offence under which arrest is made. If any of these is missing, warrant is illegal.
- Under sec. 41 , police have the power to arrest a person without a warrant as the prompt and immediate arrest is needed, no time to approach magistrate and obtain a warrant for example in case where serious crime is has been perpetrated by a dangerous person or where chances of that person absconding unless immediately arrested. Section 41 got amended in 2008/2010 because of misuse of a power conferred by this section to police and amendments targeted the power conferred to police officer must be exercised after reasonable care. Some clauses were put in this section such as police officer must act reasonably that such arrest is necessary. Not in all cases is arrest necessary. Notice of appearance before a police officer can be made if a reasonable complaint has been made, credible information has been received, suspicion exists of cognizable offence, and if concerned person continues to comply with such notice and appears ( sec 41A).
- The police officer must be wearing a clear, visible and clear identification of his name which facilitates easy identification. A memo of arrest must be prepared at the time of arrest – (i) attested by least one witness, it can be family member or member of the locality where an arrest is made (ii) counter signed by arrested person.
- Right of arrested person to meet an advocate of his choice during interrogation under sec. 41D and sec. 303 crpc.
- An arrested person has the right to inform a family member, relative or friend of his arrest U/ sec 50 of crpc.
- An arrested person has the right not to be detained for more than 24hrs, without being presented before a magistrate, to prevent unlawful and illegal arrests. This right is fundamental right under article 22 of Indian constitution and supported under section 57 and 76 of crpc.
- Arrested persons have the right to be medically examined (Sec 54,55A). The person who is arrested should be given the right to have his body examined by the medical officer when he is produced before a magistrate or at any time under custody, with a view to enabling him to establish that the offence with which he is charged was not committed by him or that he was subjected to the physical torture. With the insertion of 55A, “it shall be the duty of a person having custody of an accused to take reasonable care of the health and safety of the accused”, and it attempts to take care of “custodial violence” (torture, rape, death in police custody/lock-up) to some extent.
- An arrested person has right to remain silent under Sec. 20(3) of Indian constitution so that police can’t extract self – incriminating statement from a person without a will or without his consent.
These rights consist of guidelines which were issued by the Supreme Court in D.K Basu Case; later these guidelines were converted into amendments. These were the ‘Eleven Commandments which police need to follow to make an arrest lawful.
Special Protection To Females
- The general rule is that females are not be arrested without the presence of a lady constable. Further, no female can be arrested after sunset, but there are exceptions in some cases, where crime is very serious and arrest is important then an arrest can be made with special orders and it depends on facts and circumstances of each case. Separate lock ups should be provided for them.
- The salutary principle that the medical examination of a female should be made by female medical practitioner has been embodied in sec 53(2).
In case of State of Maharashtra Vs Christian Community Welfare Council of India [(2003) 8 SCC 546]
In this case, SC departing from long tradition of not arresting women at night and not arresting women in the absence of a female constable, the Supreme Court held that “We do agree with the object behind the direction issued by the High Court, we think a strict compliance with said direction, in given circumstances, would cause practical difficulties to investing agencies and might even room for evading the process of law by unscrupulous accused. While it is important to protect the female sought to be arrested by the police from police misdeeds but it may not possible and practical to have the presence of lady constable. It is issued by the arresting authority that while arresting a female person , all efforts should be made to keep a lady constable present but in circumstances where that arresting officers are reasonably satisfied that such presence of a lady constable is not available or possible and or the delay is arresting caused by securing the presence of a lady constable would impede the course of investigation, such arresting officer for reasons to be recorded either before the arrest or immediately after the arrest be permitted to arrest a female person for lawful reasons at any time of the day or night depending on the circumstances of the case even without the presence of a lady constable”.
- Identification of Person – With new section inserted by the 2005 amendment , sec.54-A says that where a person is arrested on a charge of committing of offence and his identification by any other person or persons is considered necessary for the purpose of investing of such offence, the court having the jurisdiction , may on the request of the officer in charge of a police station , direct the person so arrested to subject himself to identification by any person or persons in such manner as the court may deem fit”
Sec 54-A empowers the court to direct specifically the holding of the identification of the arrested person at the request of the prosecution.
- Arrest to be made strictly according to the code (Sec 60A) – “No arrest shall be made except in accordance with the provision of this code or any other law for the time being in force providing the arrest”.
Misuse Of Power
Although, there have been many safeguards provided by the Code and Constitution of India as mentioned above, the fact remains that the power of arrest is being wrongly and illegally used in a large number of cases all over the country. The power is often utilized to extort monies and other valuable property, or for instances that the enemy of the person is arrested. Even in civil disputes, this power is being restored to a basis of a false allegation against the party to a civil dispute at the instances of the opponent.
The vast discretion given by Crpc to arrest a person even in case of a bailable offence (not only where the bailable offence is cognizable but also where it is non – cognizable) and further power to make preventive arrest (e.g. under section 151 of the crpc and several city police enactments), clothes the police with extraordinary power which can be easily abused. Neither there is any in- house mechanism in the police department to check such misuse or abuse nor does the complaint of such abuse and misuse to higher police officers bear fruit except in some exceptional cases.
Difference Between Detention And Arrest
It is very important for us to understand the difference between these two words. Even though there is a slight difference, it makes an important change. Detentions are shorter in duration and scope than arrest, and require a low burden of proof. If a police officer has a reasonable suspicion that a crime has or is about to occur, and reasonably believe that a person may have information about this, the police officer can detain them for a short period of time to investigate the matter. During this investigation, he can conduct a “pat down” for weapons, seek information to determine exactly what is, has or will happen. The time frame can vary a bit due to each set of circumstances, but 20 minutes or so has been ruled to be a reasonable timeframe for detaining someone.
If police officers have a probable cause to believe a specific person has committed a crime, he can arrest that person. At that point, he can conduct a complete search for the person for weapons, evidence, and contraband as well as their vehicle if he is or has been near it recently. He can hold that person in jail for 24 hours or until he gets a warrant issued for the charges.
What If A Person Is Unlawfully Detained?
If a person is unlawfully detained by the police, the Constitution allows redressal by the filing of a habeas corpus petition under Article 32 or 226. Habeas Corpus (in Latin literally ‘[we command that] you shall have the body’] is one of the oldest writ remedies, recognized by courts for centuries. Traditionally, its sole purpose is to have any person under arrest brought to court. Now, if the person has been unlawfully detained, the court can order his release.
In law, there are always precedents that have to be followed. As, in the case of “Custodial Violence” we have landmark judgments that have been given by Supreme Court of India which sets some rules in favour of arrested person and putting some bars on powers of police officers with regard to arrest/unlawful detention and also prevents the misuse of this powers.
RUDAL SAH VS. STATE OF BIHAR [(1983) 4 SCC 141] in 1968, Rudul Sah was acquitted of a murder charge by a criminal court in Muzaffarpur, Bihar yet he languished in jail for fourteen years after that. In 1982, he filed a habeas corpus in the Supreme Court seeking his release from unlawful custody. He was finally released after he filed a writ but before the date of the Supreme Court hearing. In this case, the apex court observed that there was the bridge of fundamental right of petitioner of Article 21-Right to life and liberty and awarded compensation to Sah.
BHIM SINGH VS STATE OF JAMMU AND KASHMIR (1985) In this case, Bhim Singh, a member of the legislative Assembly of Jammu and Kashmir, was unlawfully arrested to prevent him from attending the assembly session. His wife filed a petition before Supreme Court seeking his release. Though Bhim Singh was released before the hearing, the court observed that in such cases of illegal detention, the illegality could not be ‘washed away or wished away’ merely by freeing the person and ordered the state to pay Bhim Singh monetary compensation of 50,000 rupees.
JOGINDER KUMAR VS STATE OF U.P [(1994) 4 SCC 260] In this case the Apex Court ruled that an arrested person being held in custody is entitled, if he so requests, to have one friend, relative or other persons interested in his welfare, told that he has been arrested and where he is being detained. The police officer shall inform the arrested person when he is brought to the police station of this right. An entry shall be requested to be made in the diary as to who was informed of the arrest. The magistrate is obliged to satisfy himself that these requirements have been complied with.
- K BASU VS STATE OF WEST BENGAL [AIR 1997 SC 610] This case is the landmark in which steps were taken to prevent “Custodial torture”. This matter was brought before the court by Dr. D.K Basu, Executive Chairman of the Legal Aid Services, and an NGO of West Bengal through a PIL. He addressed a letter to the Chief justice drawing his attention to certain news items published in the newspapers regarding deaths in the police lock – ups and custody. This letter was treated as the writ petition by the Supreme Court. In this case, the Supreme Court took a serious note of custodial violence and death in police lock-up. To check the abuse of police power, transparency of public action and accountability are two possible safeguards. The apex court laid down guidelines (as the preventive measure) to be followed in all cases of arrest or detention till legislative measures are taken. Some are the recent amendment made to the code codifies some of the Supreme Court guidelines regarding arrest of a person laid down in D. K Basu case. i.e. like amendments to sec. 41 like 41 A (Notice of appearance), 41B (Procedure of arrest and duties of officer making arrest), 41C (control room at district), 41D (Right to arrested person to meet an advocate of his choice during interrogation) section 50A (obligation of person making arrest to inform about the arrest, etc., to nominated person), Right to arrested person to get medically examined, etc. Even Court directed that these directions should be widely circulated as the Court mentioned: “Creating awareness about the rights of arrestee would be a step in the right direction to combat the evil of custodial crime and bring in transparency and accountability”.
STATE OF HARYANA VS DINESH KUMAR [(2008) 3 SCC 222] In this case, the issue was what constituted the arrest and custody in relation to criminal proceedings. In other words, whether the manner in which respondent had appointed appeared before the magistrate and was released without being taken into formal custody that could amount the arrest. The respondent without surrendering to the police had appeared before the magistrate with his lawyer and was immediately granted bail. The high Court held that since the accused had neither surrendered nor had been taken into custody, could not be said that he had actually been arrested. The Supreme Court disagreed with the High Court. It held that even in such circumstances, the appearance of the accused before the magistrate amounts to arrest. It held that a person can be in custody not merely when the police arrest him, produces him before a magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. Supreme Court said that high court had erred in coming to a finding that the accused had never been arrested since he had voluntarily appeared before the magistrate and had been granted bail immediately.
ARNESH KUMAR VS STATE OF BIHAR [(2014) 8 SCC 273] In this case, the apex Court emphasized the need for caution in exercising the drastic power of arrest by the police and also by the Magistrate while authorizing detention of the accused. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. In short, the police officers should not arrest the accused unnecessarily and magistrate does not authorize detention casually and mechanically.
Up to now we tried to understand the term “Detention” and “Arrest” and their differences, the procedure of arrest, rights of the arrested person and remedies for the person who is unlawfully detained and related case laws to the topics. Above mentioned each case has its own significance. By going through Law Commission report, we can read with data on how a power of arrest is being misused because of unawareness of people about their right. We somehow console ourselves that these protectors of law and order must be doing right but we have hundreds of cases where we witnessed of this power being misused.
This report shows high percentages of arrests and detention are made even in bailable offences and non-cognizable offences, bails are not granted to those where getting bail is one’s right and someone is detained even after it is proved that suspicion on him was wrong. In increasing the percentage of a number of under trial prisoners in jails, we can deal with the plight of this topic separately. Illegal detention and arrest, has a diminishing and demoralizing effect on a person. He is outraged, alienated and becomes hostile. But there needs to be a balance between security of the state on one hand, and individual freedom on other. There needs to be some checks on this power and more awareness need to be created among the peoples about their rights, so that balance system can be formed.
1) Books by R. V khelkar on Criminal Procedure 2) Some Case reference from Book “10 judgments that changed India” by Zia Mody from the chapter on “Custodial violence” 3) Case Material of Crpc (2nd semester , University of Delhi)