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, Thr Bharatiya Nagarik Suraksha Sanhita, 2023 mentions ‘arrest’ under sections 35 to 62 (the Sanhita 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 Thr Bharatiya Nagarik Suraksha Sanhita, 2023.
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 74 and 35, respectively), with a written order of an officer in charge u/s 55 and 176 of BNSS. The Station Head Officer (SHO) of a Police Station may arrest any person u/s 39 and 176 of the Sanhita.
Following are the circumstances under which a Police Officer may arrest without a warrant: –
- In case the offence committed is cognizable in nature;
- In case the person is in possession, without any lawful excuse of any housebreaking weapon;
- In case a person has been signified as an offender under the Bharatiya Nagarik Suraksha Sanhita, 2023 or has by the State Government’s order been declared the same;
- In case a person has been found in possession of any stolen property;
- 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;
- In case an individual holds concerns in any law regarding deportation/extradition;
- In case a person is a released convict and commits a breach of rule u/s 356(5) Criminal Procedure Code.
Procedure Of Arrest
Section 43 of Bharatiya Nagarik Suraksha Sanhita, 2023, elucidates the different ways in which an arrest can be carried out (i.e. with or without a warrant). Furthermore, Section 43(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’.
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
- frisk the person for any weapons,
- 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.
Rights Of Arrested Persons
Right to Know the Grounds of Arrest
In Indian law, the right to be informed about the grounds of an individual’s arrest is a basic right given to the arrested person. This right is available to every Indian citizen who is being arrested and it is the duty of the authorized personnel, a police officer, to tell the arrested person about the grounds of their arrest. Article 22(1) of the Constitution of India states that “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.” If an arrested person has timely and appropriate knowledge about the reason or the grounds of arrest then he/she can move to the proper court for bail.
According to Section 47 of BNSS states that “Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.” In short, it ensures that every individual is aware of the charge against them which further helps them understand the reason for the arrest. Moreover, a police officer or other person making the arrest should inform the arrest and place where the arrested person is being held to his friends or relatives or any person nominated by the arrested person for giving such information, as defined under Section 48 of BNSS. Along with this, Section 55 of the BNSS illustrates the ‘procedure when police officer deputes subordinate to arrest without warrant’.
In case, an arrest is made under a warrant then as per Section 77 of BNSS, a person who is executing a warrant of arrest should notify the substances to arrested person as well as should show him the warrant if required. The grounds for the arrest should be communicated to arrested persons in a language understood by them.
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.
CONCLUSION
Illegal detention by Uttar Pradesh police increasing day by day.Illegal detention affects the right of person which is a sheer violation of human right.Police misuses the right of arrest, instead of legally arresting a person they often arrest innocent person and illegally detain them.
Police officers generally illegally detain any person for the sake of money and some time feeding their own ego. If there is a offence of assault happened and FIR was not registered by any person, but if money is given by any party to the police for detention of other party, police does it.
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.
REFERENCES
SCC ONLINE
Ipleaders
Freelaw
Authored by- Shreyank Singh From Faculty of Law, University of Lucknow.
1 Comment
Ny weekly I really like reading through a post that can make men and women think. Also, thank you for allowing me to comment!