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DR.

RAM MAHOHAR LOHIYA NATIONAL LAW UNIVERSITY

THE CODE OF CRIMINAL PROCEDURE


(FINAL DRAFT ON)

RIGHTS OF AN ARRESTED PERSON


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SUBMITTED BY: UNDER THE GUIDANCE OF:

Jyoti Chaudhary Dr. Prem Kumar Gautam


Roll No.- 66 Associate Professor
Section ‘A’ Dr. Ram Manohar Lohiya
B.A. LLB (Hons.), Semester V National law University

SIGNATURE OF STUDENT SIGNATURE OF PROFESSOR

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Acknowledgement

I, Jyoti Chaudhary, a Second Year Law scholar at Dr. Ram Manohar Lohiya National Law
University, Lucknow, am highly grateful towards our lecturer Dr. Prem Kumar Gautam, who
gave me the opportunity to study this topic and because of his help and support, this project has
reached its completion.

I would also like to thank the library staff of Dr.Ram Manohar Lohiya National Law University,
Lucknow, for their patient and diligent support in the making of this project.

I would like to thank my parents who encouraged me to work hard and motivated me to give my
best. Last, I would like to acknowledge my friends who helped me in the research needed for this
project.

I have tried my best to include all the aspects discussed in the given case, yet, ignorance or any
mistake is deeply apologized.

Thanking you,

Yours sincerely,

Jyoti Chaudhary.

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INDEX

1. List of Cases Referred...……………………………………………………………….4


2. Introduction………………………………………………………………………........5
3. Rights under The Indian Constitution…………………………………………………8
4. Rights under The Code of Criminal Procedure………………………………………10
5. Judicial Pronouncements……………………………………………………….........16
a. Joginder Kumar v. State of Uttar Pradesh…………………………………...16
b. D.K.Basu v. State of West Bengal…………………………………………...18
c. Nandini Sathpathy vs P.L.Dani………………………………………………21
d. Arnesh Kumar Vs. State of Bihar & Anr…………………………………….22
e. Dr. Rini Johar & Anr. V. State of M.P. & Ors……………………………….23
6. Conclusion…………………………………………………………………………...25
7. Bibliography…………………………………………………………………………26

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LIST OF CASES REFERRED

 Maneka Gandhi v. Union of India, AIR 1978 SC 597


 Thiruvananthapuram v. State of Kerela, 1993 CrLJ 3242
 Kishore Singh Ravinder Dev v. State of Rajasthan, AIR 1981 SC 625
 Nandini Sathpathy vs P.L.Dani, AIR 1978 SC 1025
 Avinash Madhukar Mukhedkar v. State of Maharashtra,1983 CrLJ 1833
 Emperor v. Vimlabai Deshpande, AIR 1946 SC 123.
 In Re Madhu Limaye, AIR 1971 SC 2486
 Joginder Singh v. State of UP, AIR 1994 SC 1349
 D.K. Basu v. State of West Bengal, AIR 1997 SC 610
 Thaneil Victor v. State, 1991 CrLJ 2416 (Mad)
 Dakhi Singh v. The State, AIR 1995 All 379
 Govind Prasad v. State of West Bengal, 1975 CrLJ 1249 (Cal)
 Khatri v. State of Bihar, AIR 1983 SC 378
 Poovan v. Sub- Inspector of Police, 1993 CrLJ 2183
 Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991
 Gurbaksha Singh Sibbia v. State of Punjab, AIR 1980 SC 1632
 Arnesh Kumar Vs. State of Bihar & Anr, (2014) 8 SCC 273
 Dr. Rini Johar & Anr. V. State of M.P. & Ors., 2016 SCC OnLine SC 594

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INTRODUCTION

One of the basic tenets of our legal system is the benefit of the presumption of innocence of the
accused till he is found guilty at the end of a trial on legal evidence. In a democratic society even
the rights of the accused are sacrosanct, though accused of an offence, he does not become a
non-person. Rights of the accused include the rights of the accused at the time of arrest, at the
time of search and seizure, during the process of trial and the like.

The accused in India are afforded certain rights, the most basic of which are found in the Indian
Constitution. The general theory behind these rights is that the government has enormous
resources available to it for the prosecution of individuals, and individuals therefore are entitled
to some protection from misuse of those powers by the government. An accused has certain
rights during the course of any investigation; enquiry or trial of an offence with which he is
charged and he should be protected against arbitrary or illegal arrest. Police have a wide powers
conferred on them to arrest any person under Cognizable offence without going to magistrate, so
Court should be vigilant to see that theses powers are not abused for lightly used for personal
benefits. No arrest can be made on mere suspicion or information. Even private person cannot
follow and arrest a person on the statement of another person, however impeachable it is.

Though the police has been given various powers for facilitating the making of arrests, the
powers are subject to certain restraints. These restraints are primarily provided for the protection
of the interests of the person to be arrested, and also of the society at large. The imposition of the
restraints can be considered, to an extent, as the recognition of the rights of the arrested person.
There are, however, some other provisions which have rather more expressly and directly created
important rights in favour of the arrested person.

State and for that matter the police as its principal law enforcing agency have the undoubted duty
to bring offenders to book. Even so, the law and procedure adopted by the State for achieving

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this laudable social objective have to conform to civilized standards. The procedure adopted by
the State must, therefore, be just, fair and reasonable.1

In their battle against crime and delinquency, State and its officers cannot on any account forsake
the decency of State behavior and have recourses to extra-legal methods for the sake of detection
of crimes and even criminals. In a democratic society even the rights of the arrested and accused
are sacrosanct for though accused of an offence he does not become a non-person. As a matter of
fact, the laws of India, which is constitutional, evidentiary and procedural-have made elaborate
provisions for safeguarding the rights of arrested with a view to protect his dignity as a human
being and giving him benefits of a just, fair and impartial trial2.

The Code of Criminal Procedure is mainly procedural, yet it deals with three distinct but closely
related subjects, the Constitution and power of courts, the conduct of criminal proceedings and
the prevention of crimes by interference beforehand. However, we are concerned with those
provisions of the Code which entitle an accused of certain rights during the course of any
investigation, enquiry or trial of an offence with which he is charged.

However, it has to be taken note of that the crimes have to be prevented and criminals punished
to maintain the even tenor of life in the community. The basic object of Criminal law is to
suppress criminal enterprise. Society must be protected from transgression of law. To achieve
this end, there must be correspondence between the crime committed, and the punishment
imposed. Undoubtedly, the society must be the beneficiary or the larger beneficiary3. In a catena
of cases, the need for imposing penal sanctions in adequate measure was highlighted. Justice to
the victim and the community must be assured by the criminal justice system. Public interest
must be served while the human dignity of the arrested must be maintained and the rigour of
imprisonment is ameliorated.

1
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
2
R. Deb, RIGHTS OF THE ACCUSED UNDER THE LAW.
3
Thiruvananthapuram v. State of Kerela, 1993 CrLJ 3242.

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“Arrest” means:

“a seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty;
the taking or keeping of a person in custody by legal authority, especially, in response to a
criminal charge.”4

The purpose of an arrest is to bring the arrestee before a court or otherwise secure the
administration of the law. An arrest serves the function of notifying the community that an
individual has been accused of a crime and also may admonish and deter the arrested individual
from committing other crimes. Arrests can be made on both criminal charges and civil charges,
although civil arrest is a drastic measure that is not looked upon with favor by the courts. The
federal Constitution imposes limits on both civil and criminal arrests.

In the leading case of Kishore Singh Ravinder Dev v. State of Rajasthan5, it was said that the
laws of India i.e. Constitutional, Evidentiary and procedural have made elaborate provisions for
safeguarding the rights of accused with the view to protect his (accused) dignity as a human
being and giving him benefits of a just, fair and impartial trail. However in another leading case
of Meneka Gandhi v. Union of India it was interpreted that the procedure adopted by the state
must, therefore, be just, fair and reasonable.

4
Legal Dictionary by Farlex.
5
AIR 1981 SC 625.

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RIGHTS UNDER INDIAN CONSTITUTION

Articles 20(3) and Article 22 of the Indian Constitution also confer some rights on the arrested
person.

ARTICLE 22: Protection against arrest and detention in certain cases

(1) No person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest nor shall he be denied the right to consult,
and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the
nearest magistrate within a period of twenty-four hours of such arrest excluding the time
necessary for the journey from the place of arrest to the court of the magistrate and no
such person shall be detained in custody beyond the said period without the authority of a
magistrate.

Article 22 (1) and (2) confers four following fundamental rights upon a person who has been
arrested:

i) Right to be informed, as soon as may be, of the grounds for such arrest.

ii) Right to consult and to be defended by a legal practitioner of his choice.

iii) Right to be produced before the nearest magistrate within twenty-four hours of his
arrest excluding the time necessary for the journey from the place of arrest to the
Court of Magistrate.

iv) Right not to be detained in custody beyond the period of twentyfour hours without
the authority of the Magistrate.

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ARTICLE 20(3): Right Against Self-Incrimination

Article 20(3) is a protective umbrella against testimonial compulsion for people who are accused
of an offence and are compelled to be a witness against themselves.6

The ‘right to silence’ is a principle of common law and it means that normally courts or
tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a
suspect or an accused is guilty merely because he has refused to respond to questions put to him
by the police or by the Court. The Justice Malimath Committee writes about the origin of the
right to silence that “it was essentially the right to refuse to answer and incriminate oneself in the
absence of a proper charge. Not initially, the right to refuse to reply to a proper charge.” The
Justice Malimath Committee’s assumption is that the right to silence is only needed in tyrannical
societies, where anyone can be arbitrarily charged. It assumes that whenever a charge is
“proper”, there is no need for protection of the accused. In this backdrop it becomes necessary to
examine the right to silence and its companion right against self-incrimination. These are the two
aspects of fair trial and therefore cannot be made a subject matter of legislation. Right to fair trial
is the basic premise of all procedural laws. The very prescription of procedure and the evolution
of procedural law have to be understood in the historical context of the anxiety to substitute rule
of men by rule of law. In law any statement or confession made to a police officer is not
admissible. Right to silence is mainly concerned about confession. Breaking of silence by the
accused can be before a magistrate but should be voluntary and without any duress or
inducement. To ensure the truthfulness and reliability of the facts he stated the magistrate is
required to take several precautions. Right to silence and the right against self-incrimination have
been watered down quite considerably by interpretation than by legislation. The defendant if he
so desires can be a witness in his trial. His confession outside the court either to the police officer
or to the magistrate is admissible. He is encouraged to betray his colleagues in crime on promise
of pardon. He is expected to explain every adverse circumstance to the court at the conclusion of
evidence with the court having jurisdiction to draw adverse inference while appreciating the
evidence against him.

6
http://www.lawctopus.com/academike/immunity-self-incrimination/.

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The constitution of India guarantees every person right against self incrimination
under Article 20 (3) “No person accused of any offense shall be compelled to be a witness
against himself”. It is well established that the Right to Silence has been granted to the accused
by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani7, no one can
forcibly extract statements from the accused, who has the right to keep silent during the course of
interrogation (investigation). By the administration of these tests, forcible intrusion into one’s
mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence.
In 2010 The Supreme court made narco-analysis, brain mapping and lie detector test as a
violation of Article 20(3).8

RIGHTS UNDER THE CODE OF CRIMINAL PROCEDURE

Though the police have been given various powers for facilitating the making of the arrest, the
powers are subject to certain restraints. These restraints are primarily provided for the protection
of the interest of the person to be arrested, and also the society at large. The imposition of the
restraints can be considered, to an event, as the recognition of the rights of the arrested person.
There are, however some other provisions which have rather more expressly and directly created
important rights to favor of the arrested person. Some of the following are discussed below-

(a) When police may arrest without warrant: Under sections 41 very wide powers are
conferred on the police in order for them to swiftly act for the prevention or detect ion of
cognizable offences without the formality and delay of having to go to a Magistrate for the order
of arrest. Therefore, the arrest and detention of persons without warrant of caprice but are
governed by rules which are clearly laid down by law.9 There can be no legal arrest if there is no
information or reasonable suspicion that the person has been involved in a cognizable offence

7
AIR 1978 SC 1025.
8
http://www.legalservicesindia.com/article/article/rights-of-arrested-person-1635-1.html.
9
Avinash Madhukar Mukhedkar v. State of Maharashtra,1983 CrLJ 1833.

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however the burden is on the police officer to satisfy the court before which the arrest is
challenged that he has reasonable ground of suspicion10.

(b) Right to know the grounds of arrest: According to section 50(1), “every police officer or
other person arresting any person without a warrant shall forthwith communicate to him full
particulars of the offence for which he is arrested or other grounds for such arrest.” Apart from
the provisions of the code recognizing the right to know the ground of arrest, our constitution has
also conferred on this right the status of a fundamental right. Article 22(1) provides, “No person
who is arrested shall be detained in custody without being informed as soon as may be, of the
ground of such arrest nor shall he be denied the right to consult, and to be defended by a legal
practitioner of this choice.”

In case of arrest to be made under a warrant, Section 75 Cr.P.C. provides that “the police officer
or other person executing a warrant of arrest shall notify the substance thereof to the person to be
arrested, and if so required, shall show him the warrant.” If the substance of the warrant is not
notified, the arrest would be unlawful.

In re, Madhu Limaye11 the facts were: Madhu Limaye, Member of the Lok Sabha and several
other persons were arrested. Madhu Limaye addressed a petition in the form of a letter to the
Supreme Court under Article 32 mentioning that he along with his companions had been arrested
but had not been communicated the reasons or the grounds for arrest. One of the contentions
raised by Madhu Limaye was that there was a violation of the mandatory provisions of Article 22
(1) of the Constitution. The Supreme Court observed that Article 22 (1) embodies a rule which
has always been regarded as vital and fundamental for safeguarding personal liberty in all legal
systems where the Rule of Law prevails. The court further observed that the two requirements of
Clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to
remove any mistake, misapprehension or misunderstanding in the minds of the arresting
authority and, also to know exactly what the accusation against him is so that he can exercise the
second right, namely of consulting a legal practitioner of his choice and to be defended by him.

10
Emperor v. Vimlabai Deshpande, AIR 1946 SC 123.
11
AIR 1971 SC 2486.

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Whenever that is not done, the petitioner would be entitled to a writ of Habeas Corpus directing
his release. Hence, the Court held that Madhu Limaye and others were entitled to be released on
this ground alone.

The rules emerging from decisions such as Joginder Singh v. State of UP12 and D.K Basu v.
State of West Bengal13, referred to, have been enacted in Section 50A14 making in obligatory to
on the part of the police officer not only to inform the friend or relative of the arrested person
about his arrest, etc but also to make an entry in the register maintained by the police. The
magistrate is also under an obligation to satisfy himself about the compliance of the police in this
regard.

(c) Arrest- how to be made: Section 46 envisages three modes of arrest, i.e. submission to
custody, touching the body physically, or confining the body. Arrest is restraint on personal
liberty. Unless there is submission to custody, by words or by conduct, arrest must be made by
actual contact.15 In case force is required, it should be no more than which is justly required and
this section does not give a right to cause death of a person, who is not accused of an offence
punishable with the death or with imprisonment for life16. Accordingly, a police officer in an
attempt to re-arrest an escaped person has no right to shoot.17

(d) No unnecessary restraint: According to section 49, there should be no more restraint than is
justly necessary to prevent escape, i.e. reasonable force may be used for the purpose, if
necessary; but before keeping a person under any form of restraint there must be an arrest.
Restraint or detention without arrest is illegal.

(e) Person arrested to be informed of the right to bail: Section 50(2) provides that any person
arrested without warrant and in a bailable case the person shall immediately of his right to be
released on bail. Arrest without compliance of this provision will be illegal and will made the

12
(1994) 4 SCC 260.
13
(1997) 1 SCC 416.
14
Section 50A enacted by Act 25 of 2005.
15
Thaneil Victor v. State, 1991, CrLJ 2416 (Mad).
16
Sec 46(3).
17
Dakhi Singh v. The State, AIR 1995 All 379.

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officer or person making such illegal arrest liable to all such remedies as are available in case of
an illegal arrest.

Section 50 is mandatory and if its provisions are not complied with, the non-consideration of
such non-conformance by the court when considering the question of bail operates to the
prejudice of the arrested person and the order is liable to be set aside on this ground. This
provision carries out the mandate of Article 22(1) of the Constitution of India18.

(f) Search of arrested person: Section 51 is the only provision which allows a police officer to
make a personal search of arrested persons, but it comes into operation after the arrest and not
before. Search should be made in the presence of a respectable and independent witness, but this
provision under section 51 does not permit medical examination of the accused without his
consent. With regard to the provisions of this section the reference may be made to article 20(3)
of the Constitution which is a guarantee to the accused against testimonial compulsion. The
principle appears to be that though an accused cannot be compelled to produce any evidence
against him, it can be seized under process of law from the custody or person of the accused by
the issue of a search warrant.

(g) Person arrested not to be detained more than 24 hours: The constitutional and legal
requirements to produce an arrested person before a Judicial Magistrate within 24 hours of the
arrest must be scrupulously observed.19 Section 57 is concerned solely with the question of the
period of detention. The intention is that the accused should be brought before a magistrate
competent to try or commit, with the least delay. The right to be taken out of police custody by
being brought before a Magistrate is given, firstly, to prevent arrest and detention with a view to
extract confession, or as a means of compelling people to give information, secondly, to prevent
police stations being used as though they were prisons, and thirdly, to afford an early recourse to
a judicial officer independent of the police on all questions of bail or discharge.

This right has been further strengthened by its incorporation in the Constitution as a fundamental
right. Article 22(2) of the Constitution proves that “Every person who is arrested and detained in
18
Govind Prasad v. State of West Bengal, 1975 CrLJ 1249 (Cal).
19
Khatri v. State of Bihar, AIR 1983 SC 378.

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custody shall be produced before the nearest magistrate within a period of twenty-four hours of
such arrest excluding the time necessary for the journey from the place of arrest to the court of
the magistrate and no such person shall be detained in custody beyond the said period without
the authority of a magistrate.” In case of arrest under a warrant the proviso to Section 76
provides a similar rule in substance.

In a case of Khatri v. State of Bihar20, the Supreme Court has stated that this healthy provision
enables the magistrate to keep check over the police investigation and it is necessary that the
magistrates should try to enforce this requirement and where it is found disobeyed, come heavily
upon the police. If police officer fails to produce an arrested person before a magistrate within 24
hours of the arrest, he shall be held guilty of wrongful detention.

In a case of Poovan v. Sub- Inspector of Police21 it was said that whenever a complaint is
received by a magistrate that a person is arrested within his jurisdiction but has not been
produced before him within 24 hours or a complaint has made to him that a person is being
detained within his jurisdiction beyond 24 hours of his arrest, he can and should call upon the
police officer concerned; to state whether the allegations are true and if so; on what and under
whose custody; he is being so helped. If officer denies the arrest, the magistrate can make an
inquiry into the issue and pass appropriate orders.

(h) Right to consult and to be defended by a counsel of his choice: Apart from ensuring a fair
prosecution, a society under the Rule of law has also a duty to arrange for the defense of the
accused, if he is too poor to do so. Article 22(1) of the Constitution provides that no person who
is arrested shall be denied the right to consult a legal practitioner of his choice. Further, as has
been held by the Supreme Court that state is under a constitutional mandate (implicit in article
21) to provide free legal aid to an indigent accused person, and the constitutional obligation to
provide free legal aid does not arise only when the trial commences but also attaches when the
accused is for the first time produced before the magistrate, as also when remanded from time to
time. It has been held by the Supreme Court that non- compliance with this requirement and
failure to inform the accused of this right would vitiate the trial. Section 50(3) also provides that

20
AIR 1983 SC 378.
21
1993 CrLJ 2183.

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any person against whom proceedings are instituted under the code may of right be defended by
a pleader of his choice. The right of an arrested person to consult his lawyer begins from the
moment of his arrest. The consultation with the lawyer may be in the presence of police officer
but not within his hearing.

(i) Rights Of Free Legal Aid: In Khatri v. State of Bihar22, the Supreme Court has held that
the state is under a constitutional mandate (implicit in Article 21) to provide free legal aid to an
indigent accused person, an and the constitutional obligation to provide free legal aid does not
arise only when the trial commences but also attaches when the accused is for the first time
produced before the magistrate, as also when remanded from time to time. However this
constitutional right of an indigent accused to get free legal aid may prove to be illusory unless he
is promptly and duly informed about it by the court when he is produced before it. The Supreme
Court has therefore cast a duty on all magistrates and courts to inform the indigent accused about
his right to get free legal aid. The apex court has gone a step further in Suk Das v. Union
Territory of Arunachal Pradesh 23 , wherein it has been categorically laid down that this
constitutional right cannot be denied if the accused failed to apply for it. It s clear that unless
refused, failure to provide free legal aid to an indigent accused would vitiate the trial entailing
setting aside of the conviction and sentence.

(j) Rights to Anticipatory Bail: Section 438 deals with this right of the arrested. Special powers
have been conferred only on the High Court and the Court of Session for directing a person on
bail previous to his arrest, which is commonly called anticipatory bail, imposing such conditions
as the court thinks fit. The order of anticipatory bail shall take effect at the time of arrest.24

(k) Right to be examined by a medical practitioner: Section 54(1) provides for the
examination of arrested person by medical practitioner at the request of the arrested person.

When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is

22
AIR 1983 SC 378.
23
AIR 1986 SC 991.
24
Gurbaksha Singh Sibbia v. State of Punjab, AIR 1980 SC 1632.

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produced before a Magistrate or at any time during the period of his detention in custody that the
examination of his body will afford evidence which will disprove the commission by him of any
offence or which will establish the commission by any other person of any offence against his
body, the Magistrate shall, if requested by the arrested person so to do direct the examination of
the body of such person by a registered medical practitioner unless the Magistrate considers that
the request is made for the purpose of vexation or delay or for defeating the ends of justice.

JUDICIAL PRONOUNCEMENTS

JOGINDER KUMAR v. STATE OF UTTAR PRADESH AND ORS.

(AIR 1994 SC 1349)

An advocate was called into the office of Police Officer with reference to inquires in a case. He
was detained while his companions left after being informed that he would be free later in the
day. A few days later, it came to light that the advocate was being detained without production
before the concerned magistrate by another official who claimed it was in reference to a case.
When the brother of the advocate wished to enquiry into his well being, it was found that the
advocate had been taken to an undisclosed location. A petition under article 32 was filed.

The police officers claimed that the advocate had been released and there was no question of
detaining him as he was co-operating with them in some abduction related matters.

Given the increase in crime and human rights violations by way of indiscriminate arrests,
the Hon’ble Court sought a way to strike a balance between the right of an indivisual and the
perotection of the society. It was observed that a realistic approach was essential to the problem
of “simply deciding what is wanted and where to put the weight and the emphasis; of deciding
which comes first – the criminal or society, the law violator or the law abider.” Justice Cardozo’s
observations in People v. Defore were cited with approval: “The question is whether protection
for the individual would not be gained at a disproportionate loss of a protection for society. On

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the one side is the social need that crime shall be repressed, on the other, the social need that law
shall not be flouted by the insolence of, office. There are dangers in any choice.”

It was held that an arrest cannot be made merely because it is lawful for the Police Officer to do
so. The existence of the power to arrest and justification for its exercise are two different things.
An arrest cannot be made in routine manner on mere allegation of offence. In view of a citizen’s
constitutional rights and the police officer’s own interests, it would be prudent for a police
officer to not make an arrest with a reasonable belief:

a) as to the person’s complicity in an offence; and

b) as to the need to arrest such person

along with a reasonable satisfaction reached after some investigation as to the genuineness and
bonafides of a complaint.

It was held that denying a person his liberty is a serious matter and officer arresting must have
some reasonable justification that the arrest is necessary. Arrest and detention can cause
incalculable harm to the reputation and self esteem of a person. Mere suspicion of complicity in
an offence does not make a person liable to arrest. Except in reference to heinous offences, an
arrest must be avoided if notice to person to attend the Station House and not to leave Station
without permission would do.

The apex courts stated that these rights are inherent in Articles 21 and 22(1) of the Indian
Constitution and were required to be recognized and scrupulously protected.

Thereafter, the following guidelines were laid down:

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.

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3. An entry shall be required to be made in the Diary as to who was informed of the arrest.
(These protections from power flow from Articles 21 and 22(1) and must be enforced
strictly.)

And upon production of the arrested person before him, the Magistrate has to satisfy himself that
the requirements have been complied with.

D.K. BASU v. STATE OF WEST BENGAL

(AIR 1997 SC 610)

In this case certain letters received about the cases of custodial violence and custodial deaths by
police were treated as writ petitions in public interest by the Supreme Court.

The court described 'custodial torture' as a naked violation of human dignity and degradation that
destroys self esteem of the victim and does not even spare his personality. Custodial torture
observed the Court is a calculated assault on human dignity and whenever human dignity is
wounded, civilisation takes a step backwards. The Court relied upon the Report of the Royal
Commission on Criminal Procedure and the Third Report of the National Police Commission in
India to hold that despite recommendations for banishing torture from investigative system,
growing incidence of torture and deaths in police custody come back to haunt.

Relying upon the decisions of this Court in Joginder Kumar v. State of U.P. and Ors.; Smt.
Nilabati Behera alias Lalita Behera v. State of Orissa and Ors.; State of M.P. v. Shyamsunder
Trivedi and Ors.; and the 113th report of the Law Commission of India recommending insertion
of Section 114-B in the Indian Evidence Act, this Court held that while the freedom of an
individual must yield to the security of the State, the right to interrogate the detenus, culprits or
arrestees in the interest of the nation must take precedence over an individual's right to personal
liberty. Having said that the action of the State, observed this Court, must be just and fair. Using

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any form of torture for extracting any kind of information would neither be right nor just or fair,
hence, impermissible, and offensive to Article 21 of the Constitution.

A crime suspect, declared the court, may be interrogated and subjected to sustained and scientific
interrogation in the manner determined by the provisions of law, but, no such suspect can be
tortured or subjected to third degree methods or eliminated with a view to eliciting information,
extracting a confession or deriving knowledge about his accomplices, weapons etc. His
constitutional right cannot be abridged except in the manner permitted by law, though in the very
nature of things there would be a qualitative difference in the method of interrogation of such a
person as compared to an ordinary criminal. State terrorism declared this Court is no answer to
combat terrorism. It may only provide legitimacy to terrorism, which is bad for the State and the
community and above all for the rule of law.

In this case, following important guidelines were issued by the Court as preventive measures to
be followed as requirements in all cases of arrests and detention:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee
should bear accurate, visible and clear identification and name tags with their designations. The
particulars of all such police personnel who handle interrogation of the arrestee must be recorded
in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at
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 by the arrestee and shall contain the time and date of
arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or
interrogation centre or other lock-up, shall be entitled to have one friend or relative or other
person known to him or having interest in his welfare being informed, as soon as practicable, that
he has been arrested and is being detained at the particular place, unless the attesting witness of
the memo of arrest is himself such a friend or a relative of the arrestee.

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(4) 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 telegraphically
within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest
or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person
which shall also disclose the name of the next friend of the person who has been informed of the
arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) 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.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours
during his detention in custody by a doctor on the panel of approved doctors appointed by
Director, Health Services of the State or Union Territory concerned. Director, Health Services
should prepare such a panel for all tehsils and districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to
the Illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.

(11) A police control room should be provided at all district 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.

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The Supreme Court directed that failure to comply with the above requirements shall apart from
rendering the official concerned liable for departmental action, also render him liable to be
punished for contempt of court and the proceedings for contempt of court may be instituted in
any High Court of the country, having territorial jurisdiction over the matter.

NANDINI SATHPATHY v. P.L. DANI

AIR 1978 SC 1025

Smt. Nandini Satpathy, a former Chief Minister of Orissa and one time minister at the national
level, was directed to appear at the Vigilance Police Station for being examined in connection
with a case registered against her under the Prevention of Corruption Act. On the strength of the
first information report, in which the petitioner, her sons and others were shown as accused,
investigation was commenced. During the course of investigation she was interrogated with
reference to a long string of questions, given to her in writing. The major accusation against her
was the acquisition of assets disproportionate to the known sources of income.

V.R Krishna Iyer. J, delivering the Judgment of the court held that the prohibitive sweep of Art
20 (3) goes back to the stage of police interrogation- not commencing in court only. The ban on
self-accusation and the right to silence, while on investigation or trial under way, goes beyond
that case and extends to the accused in regard to other offences pending or imminent, which may
deter him from voluntary disclosure of incriminatory matter. The phrase 'compelled testimony'
has to be read as evidence procured not merely by physical threats or violence but by psychic
torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing
and intimidatory methods and the like. However, the legal penalties that follow for refusal to
answer or answer truthfully cannot be 'compulsion' under Art 20(3).

The Supreme Court followed the position of law in the US after the decision in Miranda case
(1966) 384 US 436, which extends the right against self-incrimination to police examination and

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custodial interrogation and takes in suspects as much as regular accused persons. Held further
that fanciful claims, unreasonable apprehensions, vague possibilities cannot be the hiding ground
for an accused. He is bound to answer where there is no clear tendency to criminate.

The right against self-incrimination is best promoted by conceding to the accused the right to
consult a legal practitioner of his choice which is Guaranteed by Art 22(1). The lawyer's
presence is an assurance of awareness and observance of the right to self-incrimination.

The court in this case also defined the term 'self-incrimination' and distinguished it from a
confession: “Answers, that would in themselves support a conviction are confessions, but
answers which have a strong tendency to point out the guilt of the accused are incriminatory.”

The court observed that the right against self-incrimination would commence from the time the
person is named in the 'First Information Report' by the police.

ARNESH KUMAR v. STATE OF BIHAR & ANR

(2014) 8 SCC 273

This judgment has effectively rewritten the relationship between the police and public. The
important verdict arises from an appeal preferred by an husband who apprehended his arrest in a
case under Section 498-A of the Indian Penal Code, 1860 and Section 4 of the Dowry
Prohibition Act, 1961. While dealing with the case, the Court thought it fit to record the
rampant abuse of 498-A of the Indian Penal Code, 1860 . Justice Chandramauli Kr. Prasad,
who delivered the judgement, along with Justice Pinaki Chandra Ghose has recorded the ground
realities, according to the Court, “There is phenomenal increase in matrimonial disputes in
recent years. The institution of marriage is greatly revered in this country. Section 498-A of
the IPC was introduced with avowed object to combat the menace of harassment to a woman at
the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and
non-bailable offence has lent it a dubious place of pride amongst the provisions that are used

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as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the
husband and his relatives arrested under this provision.”

The Court in strong words possible has expressed its dissatisfaction as to how the power of arrest
and detention is dealt with equally by Police and Magistrates. It records “ The power to authorise
detention is a very solemn function. It affects the liberty and freedom of citizens and needs to
be exercised with great care and caution. Our experience tells us
that it is not exercised with the seriousness it deserves. In many of the cases, detention is
authorised in a routine, casual and cavalier manner. Before a Magistrate authorizes
detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and
in accordance with law and all the constitutional rights of the person arrested is satisfied. If the
arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code,
Magistrate is duty bound not to authorise his further detention and release the accused.”
In order to prevent unnecessary arrest and causal and mechanical detention, the Court also issued
certain directions regarding the same.

DR. RINI JOHAR & ANR. v. STATE OF M.P. & ORS.,

2016 SCC ONLINE SC 594

Two women a doctor Rini Johar and her septuagenarian lawyer-mother Gulshan Johar are based
in Pune. They had approached the apex court challenging their arrest on November 27, 2012 on a
complaint filed by a Bhopal resident Vikram Rajput who purchased an aura camera from Rini
Johar, the sole distributor of the US-manufactured machine in India.

He had purchased the machine in 2012 after receiving a demo of the product at Pune. But on his
return to Bhopal, he alleged fraud against Rini and the product manufacturer and filed a
complaint with the Cyber Cell.

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The Bhopal Cyber Cell travelled to Pune to arrest Rini Johar and even took into custody her old
mother who had no role in the transaction. The lawyer-woman was released on bail after 17 days
while Rini Johar was released after more than three weeks. It was alleged that they were forced
to pay Rs.5 lakhs to Deepak Thakur, Dy. S.P. Cyber Cell, Bhopal. Meanwhile police filed charge
sheet against these two women before the court of Magistrate.

Later she was even discharged from the case. Hurt by the humiliation they had to suffer at the
hands of the police and with no sanction from Magistrate while taking them from Pune to
Bhopal, Johars approached the apex court for violation of their fundamental right to live with
dignity under Article 21. The petitioners were compelled to face humiliation. They were treated
with an attitude of insensibility. Not only there were violation of guidelines issued in the case of
DK Basu, there were also flagrant violation of mandate of law enshrined under Section 41 and
Section 41-A of CrPC.

Apex Court opined that from the enquiry report it is quite clear that the arrest of petitioners -
women were not made by following the prescribed procedure of arrest and this way the dignity
of these two ladies, a doctor and a practicing Advocate was seriously jeopardized.

Having held that these two ladies were arrested without following the procedure, Apex Court
determined the compensation to which they became entitled. While awarding compensation
Apex Court concluded that:

i. Officers of the state have played with the liberty of these two ladies and in a way
experimented it. Law does not countenance such kind of experiments as that causes
endless trauma and pain.
ii. Article 21 of the constitution was violated and they were compelled to face humiliation.
iii. They were treated with an attitude of insensibility.
iv. Not only these are the violations of guidelines issued in case of D.K.Basu, but there are
also flagrant violation of mandate of law laid u/s 41 & Sec.41-A of CrPC.
v. Investigating officers in no circumstances can flout the law with brazen proclivity.

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CONCLUSION

To sum up, the power of arrest involves restriction of liberty of a person arrested and therefore,
infringes the basic human rights of liberty. Nevertheless the Constitution of India as well as
International human rights law recognizes the power of the State to arrest any person as a part of
its primary role of maintaining law and order. The Constitution requires a just, fair and
reasonable procedure established by law under which alone such deprivation of liberty is
permissible.

Although Article 22 (1) of the Constitution provides that every person placed under arrest shall
be informed as soon as may be the ground of arrest and shall not be denied the right to consult
and be defended by a lawyer of his choice and S.50 of the Code of Criminal Procedure, 1973
Cr. PC requires a police officer arresting any person to "forthwith communicate to him full
particulars of the offence for which he is arrested or other grounds for such arrest". In actual
practice these requirements are observed more in the breach.

Likewise, the requirement of production of the arrested person before the court promptly which
is mandated both under the Constitution Article22 (2) and the Cr. PC Section 57 is also not
adhered to strictly. A large number of complaints pertaining to Human Rights violations are in
the area of abuse of police powers, particularly those of arrest and detention. Even after the
prescribing of guidelines by the National Human Rights Commission to narrow the gap between
law and practice, curtailing the powers of the police to effectively maintain and enforce law and
order and proper investigation, it has been ineffective to a very large extent.
Hence, there is a dire need for a more stringent step to be taken and enforced to curtail the
powers of arrest by police personnel in actual practice. One of the steps suggested is the
formation of the office of police ombudsmen, as prevalent in the countries of Ireland and Brazil,
which have to a very large extent been successful in controlling the exercise of arbitrary powers
of the police and have helped in upholding the rights of arrested person to a wide extent.

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BIBLIOGRAPHY

 R.V.Kelkar’s Criminal Procedure, Eastern Book Company


 Ratanlal and Dhirajlal, Code of Criminal Procedure, Lexis Nexis
 Rights of Arrested Person- Case Analysis, Mubashshir Sarshar, National Law University,
Delhi
 Rights of Arrested Person by Smarika Azad, Lex Articles
 SCC Online
 http://www.legalservicesindia.com/article/
 http://shodhganga.inflibnet.ac.in/bitstream/
 http://www.hrcr.org/
 http://blog.ipleaders.in/
 http://birbhumpolice.org/
 http://shodhganga.inflibnet.ac.in/bitstream/
 http://www.scdecision.in/
 http://www.advocatekhoj.com/
 https://kanwarn.wordpress.com/
 http://www.livelaw.in/
 http://indialegalonline.com/
 http://www.onlinelegalopinion.com/

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