In this article, Saloni Thapa of SLS – Hyderabad discusses everything you need to know about illegal detention,

Introduction

The term “Arrest” is defined as the act of cognizance of a person by the legal authority so as to take him into custody by causing a deprivation of liberty. Therefore, after an arrest, a person’s liberty is in control of the arrester (i.e. either the Police or a private person). As stated in the criminal law, an arrest is an essential instrument for bringing an accused before the court and to prevent him from absconding.

An arrest is made in order to present the accused before the court or to keep a check on the administration of the law. It is also made to serve the purpose of informing the society who has been accused of a crime and warns the accused from committing other crimes.

According to Indian legislation, the Criminal Procedure Code, 1973 mentions ‘arrest’ under sections 41 to 61 (the code doesn’t define arrest under any section).

Who Can Arrest?

Administrative authorities like the police, the Judicial Magistrate and/or any private person, can make an arrest of an individual under certain provisions under the Criminal Procedure Code. The Criminal Procedure Code discharges Armed Forces Personnel from being arrested for any criminal activity carried out by them in the tenure of their official duty unless consent has been obtained from the Government (Section 45).

Under Section 43 of Criminal Procedure Code, any private person has the authority to arrest an individual without a warrant only under circumstances where the person has been subsequently declared to be an offender under Section 82 CrPC or when a person is said to commit a non-bailable or cognizable offence in their presence. In cases when the private person has a warrant under Section 72 and 73, or with the permission of a Police officer or the under the order of the Judicial Magistrate under Section 37 and 44 of the Code.

Under Section 44 of Criminal Procedure Code, either the Judicial or the Executive Magistrate may arrest a person or order a person to arrest the offender for committing an offence in his presence; the authority to grant bail or to keep an offender in custody is in the hands of the Magistrate according to the provision contained in the Criminal Code.

Arrest By Police Officer

A Police Officer, being the administrative authority, has the power to arrest any person, with or without a warrant (u/s 72 and 41, respectively), with a written order of an officer in charge u/s 55 and 157 of CrPC. The Station Head Officer (SHO) of a Police Station may arrest any person u/s 42(2) and 157 of the Code.

Following are the circumstances under which a Police Officer may arrest without a warrant: –

1.  In case the offence committed is cognizable in nature;
2.  In case the person is in possession, without any lawful excuse of any housebreaking weapon;
3.  In case a person has been signified as an offender under the Criminal Procedure Code or has by the State Government’s order been declared the same;
4.  In case a person has been found in possession of any stolen property;
5.  In case an individual hinders a police officer while executing his duty or an individual who has escaped or attempts to escape, from lawful custody;
6.  In case an individual holds concerns in any law regarding deportation/extradition;
7.  In case a person is a released convict and commits a breach of rule u/s 356(5) Criminal Procedure Code.

Arrest By Magistrate

Judicial Magistrate I Class and Judicial Magistrate II Class, both have the authority to arrest any person without a warrant, following are the two circumstances:

• If any person commits any offence within the local jurisdiction of and in the presence of such Magistrate,
• Any person within the Magistrate(s) local jurisdiction for whose arrest he is competent to issue a warrant.

Procedure Of Arrest

Section 46 of the Criminal Procedure Code, elucidates the different ways in which an arrest can be carried out (i.e. with or without a warrant). Furthermore, Section 46(1) talks about “A Police Officer or a private person who carries out an arrest of another person, shall touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.”

Since an arrest constitutes of restraint of freedom of the of the person, it is required of the person being arrested, to submit himself to custody or else, the arrester must touch and confine the body as deemed necessary. ‘Arrest’ does not constitute of mere oral declarations by the arrester i.e. the arrester cannot simply declare the arrest of a person without any submission to custody or cannot physically touch to confine the body.

In the case of Bharosa Ramdayal v. Emperor, ‘it was stated if a person makes a statement to the Police, confessing of the offence committed by him, or if directed and the accused proceeds to the Police Station, it would be considered as having submitted himself to the custody of the Police Officer, therefore, leaving no scope of physical contact.’

Talking of oral declaration, the case of Birendra Kumar Rai v. UOI stated that an arrest is not necessarily made by handcuffing a person, it can be carried out by spoken words (i.e. orally), if the person submits to custody.

A Government official or a private person has the authority to make an arrest of any person by using all means required if a person resists or attempts to escape the arrest. Section 48 under Criminal Procedure Code states that ‘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’.

Rights Of Arrested Persons

Along with giving a wide set of arresting powers to the Police, therefore, the Criminal Code also lays down laws for the person being arrested in order to maintain appropriate safeguards for the society. At various instances the persons being arrested have faced issues regarding misuse of power by the Government officials, hence, the Criminal Code provides a set of rules that protect the arrested persons by giving them certain rights (can be used when the power in the hands of the Police is being used arbitrarily, in order to meet the needs of a ‘fair trial’). An arrested person enjoys these rights either at the time of arrest or at the time of trial, following are the rights prescribed in the Criminal Procedural Code:

• According to Section 50(1) Criminal Procedure Code, a person holds the right to be informed i.e. u/a 22 of the Indian Constitution, it is a fundamental right of every citizen that at the time of arrest, it is the duty of the Police to inform the arrestee the grounds of the offence committed by him for which he is being arrested. The Police are further required to inform the person as to the offence committed is of bailable or non-bailable in nature.
• With respect to non-cognizable offences, an arrest can only be made a warrant and the warrant should be made available for an arrested person to see. Therefore, the right to see the warrant u/s 75 Criminal Procedure Code provides for the arrested persons to check whether the warrant contains the necessary details i.e. whether the warrant is in writing or not, the warrant should be signed by the presiding officer, should also have the court’s seal on it along with the name, address and the offence committed by the accused (if any of the details are missing, the warrants stands null and void).
• Section 56 of Criminal Procedure Code talks about the right of an arrested person to be produced before the Magistrate i.e. “A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, lake or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.”
• Any individual arrested cannot be held in custody for more than 24 hours; Section 57 of Criminal Procedure Code states that “No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.”
• Furthermore, Sections 41D and 303 of Criminal Procedure Code allow the arrested person to enjoy the right of meeting with an advocate of his discretion, during the interrogation.
• Section 50 of the Criminal Procedure Code provides right to inform a family member, a friend or a relative of the arrested person.
• Sections 54 of the Criminal Procedure Code provide rights to the arrested person of having medical assistance right after the time of arrest (for both male and female), along with Section 55A stating “It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused.”
• Lastly, Article 20(3) allows the arrested person to use his right to remain silent in order to prevent the Police to extract self-inculpatory statements out of the accused.

Illegal Detention

‘Detention’ is defined as the act of reserving a person or property. Whereas, ‘illegal detention’ is the unsubstantiated imprisonment or unlawful deprivation of liberty of an individual by arresting for an illegitimate cause or suspicion, along with continuous restraint on one’s personal liberty by detaining such individual in custody.

There stands a massive difference between the definitions of ‘arrest’ and that of ‘detention’, therefore, it is necessary for one to know how to differentiate between the two. ‘Arrest’ under the Criminal Procedure Code has a different procedure altogether while detention is not as grave as arrest; detention is of a shorter time period than arrest, therefore, needs less burden of proof.

A Police officer can detain an individual, if he has reasonable doubt or suspicion that a crime has been or will be committed, or if he reasonably believes that an individual may have information regarding the same, the Police officer may then have the liberty of detaining the individual for a short span of time, in order to investigate into the matter. If an individual is ever detained, the authorities are allowed to

1. frisk the person for any weapons,
2. seek information regarding the crime that is believed to occur.

Lastly, unlike an arrest where a person can be held in custody for up to 24 hours or more, but according to the ruling of a reasonable timeframe, a person can approximately be detained up to 20 minutes, depending on the circumstances.

Joginder Kumar v. State Of Uttar Pradesh [(1994) 4 SCC 260]

The case of Joginder Kumar v. State of Uttar Pradesh set standard grounds for arresting any person; the Apex Court set rules for arrest after the trial of this case, therefore, this case is known as the ‘guidelines for arrest case’. The case dealt with ‘Rights of individuals v. Protection of society’ due to the increment of crime rates and indiscriminate arrests over the years, therefore, the Hon’ble Supreme Court decided on creating equilibrium between the two.

Facts

A petition under Article 32 of the Indian Constitution was filed in the case of Joginder Kumar v. State of UP, where the petitioner i.e. Joginder Kumar, who was a 28-year old lawyer, was summoned for inquiries to the office of Senior Superintendent of Police [SSP], Ghaziabad. Joginder Kumar was accompanied by his brother along with friends, who were further informed that the petitioner would be released from custody by that evening. Whereas, the petitioner himself was told with the assurance that he shall be released on the next day.

However, the Police did not release Joginder Kumar on the next day, stating that they wanted the petitioners’ help with further inquiries. On the third day, his family was informed that Joginder Kumar had been taken away to an undisclosed location. In effect, Joginder Kumar was illegally detained over a period of five days. The petitioners’ family filed a petition of habeas corpus in the Hon’ble Supreme Court, in order to find out Joginder Kumar’s’ whereabouts.

In furtherance of which the Supreme Court issued notices to both, the Government of Uttar Pradesh as well as the Senior Superintendent of Police to instantly produce the petitioner and provide the court with answers regarding the detainment of Joginder Kumar for up to five days, without any valid reasons and as to why the Police had not mentioned the detention of the same in the station diary, and if so, why was the petitioner not produced before the Magistrate.

Judgment

In the case of Joginder Kumar v. State of Uttar Pradesh, the Hon’ble Supreme Court held that “No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bonafides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to a person to attend the Station House and not to leave Station without permission would do.”

It was further observed by the court that according to English laws, an arrested person holds rights to inform someone about his arrest, upon request and also has the right to consult with a lawyer of his choice. The apex court stated that these rights provided to an arrested person vested in Articles 21 and 22(1) of the Indian Constitution and are required to be acknowledged and safeguarded.

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Thereafter, it was held by the apex court that “There is a right to have someone informed. That right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognised by Section 56(1) of the Police and Criminal Evidence Act 1984 in England. These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognised and scrupulously protected. For effective enforcement of these fundamental rights, we issue the following requirements: 1) an arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is 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 is being detained. 2) The Police Officer shall inform the arrested person when he is brought to the police station of this right. 3) 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 flow from Articles 21 and 22(1) and enforced strictly. It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have complied with the above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the right of the arrested persons found in the various police manuals.”

Therefore, the Constitution of India provides certain rights to an arrested person, as a prerequisite to the Fundamental Rights provided to every citizen of the country. Article 21 and 22 establish the righteousness an arrested person holds in order to protect himself from any illegal action against him in the process of arrest. Furthermore, the guidelines laid down in the case of Joginder Kumar v. State of UP, were made mandatory for the Police to follow in case of arrest to avoid dysfunctional activities on behalf of the administrative authorities and bring uniformity in the criminal procedure.