This article on ‘Legal Framework regulating Arrest and Investigation in India‘ was written by Ananta Kashyap, an intern at Legal Upanishad.
Criminals are people first unless proven guilty. Our democratic society protects the accused even if he is convicted.
Unauthorized detention violates personal liberty under our law. Article 21 of our constitution prohibits arbitrary detention. Daily police activities provide several chances for corruption and associated misbehaviour. Registering a case, accepting a request to arrest or not, extortion, collecting hafta, participating in civil disputes, fabricating evidence, etc.
Police extort and corrupt. The police may arrest anybody engaged in such an offence after submitting a cognizable complaint.
Article 21 mandates a just, reasonable, and fair manner without arbitrariness, caprice, or oppression. Arrests must be justified. The Indian Constitution protects prisoners. The defendant has rights.
What is an arrest?
Criminals are generally arrested. Arrest denotes a restriction of freedom and independence restricted.
The 1973 Criminal Procedure Code does not define “Arrest.” The arrested person is handed over to the legal authorities. While awaiting trial, the culprit is detained to prevent further crime. Sometimes legal authorities restrict the person, and sometimes the person willingly submits to the arrester’s custody.
The Farlex Legal Dictionary defines “arrest” as “a seizure or forced restraint; an exercise of the power to deprive a person of his or her liberty; the seizing or keeping of a person in custody by legal authority, notably in response to a criminal charge”.
Chapter V (Sections 41–60) of India’s Criminal Procedural Code 1973 (CrPC) discusses the arrest of an individual, however, it does not provide a definition of the arrest.
Types of Arrest
Two types of arrest
- When law enforcement officials make an arrest because of a judge’s order is called a “warrant.”
- An arrest conducted in the absence of such a warrant but in compliance with a provision of law that authorizes such an arrest
Who can arrest?
Police, a judge, or a citizen may all make an arrest.
Any police officer may arrest any person who has committed a cognizable offence, is in possession of the stolen property, is a state offender, obstructs a police officer in the performance of his duty, attempts to escape from lawful custody, is declared a deserter from any of the Armed Forces of the Union, or is a released convict and breaches his parole.
A police officer may arrest a suspect under Section 42 if they refuse to give identification.
Under Section 43, anybody may arrest a proclaimed offender or someone who commits a cognizable or non-bailable violation in their presence. Section 44(1) of the Criminal Procedure Code allows a Magistrate to arrest and detain a person for a crime committed in his presence.
The Criminal Procedure Code states that Armed Forces employees cannot be arrested for official activities without government authorisation. The Criminal Procedure Code’s Section 46 allows warrantless arrests.
Women are protected from arrest between dusk and morning under Section 46(4). After making a written report and gaining authorization from the local court judge of the first class in whose jurisdiction the crime was committed or the arrest is to be made, a female police officer may make an arrest.
Constitutionality of Sections 107 and 151 of CrPC
Section 48 allows authorities to pursue such a person into India and arrest them without a warrant. Article 49 of the Code states that detainees shall not be harmed unless necessary to prevent escape.
If they have probable cause, police may arrest a person without a warrant under Section 151. The predicted offence must be cognizable, and the officer must feel that only arresting the suspect would stop additional criminality. Section 107 empowers the magistrate. These sections allow authority abuse, hence various petitions have challenged their legitimacy.
Landmark Case Law
Medha Patkar v. State of M.P (2007):
The Sardar Sarovar Project is the subject of this lawsuit from the Indian state of Madhya Pradesh. A group of landowners and others who would be negatively impacted by this project in MP gathered along the roadside, yelling slogans and calling for compensation in the form of land for land and other forms of rehabilitation. Even though the protesters had gathered peacefully and not disrupted public order or peace, the police nonetheless assaulted them and arrested them under Section 151 of the Criminal Procedure Code (CrPC).
The Magistrate then summoned them under Section 107 of the Criminal Procedure Code. Among the demonstrators were also several ladies and children. The detention of the protesters was still a breach of Article 21 of the Indian Constitution since they had not posted bail.
Rights of an arrested person in India
The Indian Constitution guarantees essential rights to the accused. Arrestees, defendants, and prisoners have little hope under Article 21 of the Indian Constitution. They must be treated humanely and legally. The accused has legal rights.
Their legal provisions are listed below.
- Grounds of Arrest: Right to be informed
The Indian Constitution considers this a fundamental right. Article 22(2) of the Indian Constitution states that “no person who is arrested will be kept in prison without being told as soon as may be, of the circumstances of such arrest nor should he be denied the right to consult, and to be defended by a legal practitioner of his choice.”
Arrested people may be innocent, thus this right is crucial. If he knows the arrest reasons, he may ask for bail, a petition of habeas corpus, or a quick and proper defence. It also allows the arrestee to promptly notify a close friend or relative. Madhu Limaye’s Case is an example here.
- Right to Silence
The accused or arrested person’s silence during questioning does not always indicate guilt. The Justice Malimath Committee report notes that there is substantial debate over whether or not this right may be utilized in the present day.
- Right to be released on Bail
The Indian Constitution guarantees everyone the right to freedom within the bounds of the law under Article 21. However, until his innocence is established, the accused cannot be granted all these privileges. But he must be made aware that, even for non-bailable offences, the Court may issue bail after considering considerations including the type or severity of the offence, the quality of the evidence, and so on.
- Right to be taken before Magistrate without delay
Whether or not a warrant was used to make the arrest. Within 24 hours (not including the time it takes to travel from the location of arrest to the Magistrates’ court), the person conducting such an arrest must bring the accused before the judge.
- Rights regarding detention
- The arresting officer will be guilty of unlawful detention if the accused individual is not brought before a magistrate within 24 hours after the arrest.
- This protection exists so that suspects aren’t coerced into making statements during or after their arrest, or having their statements used against them in court.
- That way, the police stations won’t have the same prison-like atmosphere as they otherwise could.
- Rights at the Trial
Our constitution and procedural rules support fair trials in accordance with international law. Fair trials are founded on natural justice and preserve the accused’s rights.
- Right to consult a legal practitioner
The Supreme Court maintained the right of an accused to consult a lawyer under Articles 21 and 22(1) of the Indian Constitution.
- Rights to free legal aid
In India, this service is available to all financially disadvantaged defendants, regardless of the gravity of their alleged offence. This applies to all levels of our three-tiered judicial system. Since the Indian Constitution and the Legal Services Authorities Act make no difference between the trial and the appeal, this service is offered for both.
- Right to be examined by a medical Practitioner
It is crucial to document the accused’s physical condition upon arrest, including the presence of any obvious marks or injuries. As a result, this serves as a safeguard to verify whether or not the authorities tortured the detainee during interrogation or while in detention.
- Right of the accused to produce evidence
A very significant and crucial right to have a trial that is conducted fairly.
The police have a primary responsibility to safeguard the rights of all citizens, even those who have been detained. The police must ensure that the accused is not excessively harassed or denied due process in accordance with the legal procedures in place. Within twenty-four hours of being taken into custody, the police must bring the suspect before a magistrate and tell him or her of their rights, including the basis for their arrest and whether or not they are eligible for release.
There are protections in place thanks to the Code of Criminal Procedure, 1973, yet police officers continue to abuse their arrest authority. In the minds of many, including those who are still alive today, police officers abuse their positions of power to coerce and extort money from those who have been detained. Police have been accused of not providing those who have been arrested with sufficient information about the allegations against them or the opportunity to get legal counsel.
Therefore, it is crucial to make adjustments to the Criminal Justice System so that the State understands that its main responsibility is to capture and rehabilitate the offender, rather than just punish him. The Rule of Law governs all actions taken by the State’s machinery; therefore, all processes are conducted in accordance with it. Those involved in prosecution and investigation are also included.
- Ragini Sehgal, All About the Procedure of Arrest under CrPc, Legal Services India, available at: https://www.legalserviceindia.com/legal/article-8100-all-about-the-procedure-of-arrest-under-crpc.html
- Shruti Singh, Arrest of Persons Under CrPC, 1973, iPleaders Blog, 12 December 2019, available at: https://blog.ipleaders.in/arrest-of-a-person/