This Chapter deals with 'Arrest of persons' and "their rights". Generally speaking, 'arrest' means "deprivation of personal liberty of an individual". The aim of criminal law is to protect the right of individual and the State against the intentional invasion by others, to protect the weak against the strong; the law abiding against lawless, the weaker against the predator, the peaceful against the violent. During the British rule, arrests and detentions were a common feature and many freedom fighters were often arrested and detained for long durations without any trial. People were arrested and detained on mere suspicion and kept under lock-up. The British did not follow any law or rule in the real sense of the word; indeed there was no "rule of law".
This scenario has changed. In a modern welfare State, this protection is sought to be achieved and ensured by punishing the accused after the accusation against him has been investigated into and proved beyond doubt in a legal proceeding in accordance with the provisions of law. To ensure free and fair trial, so that an innocent person may not be victimized, an accused person; See State of Uttar Pradesh v. Deoman, MANU/SC/0060/1960 : AIR 1960 SC 1125, is entitled to contain basic rights and privileges to defend himself and prove his innocence before he is condemned and punished.
After Independence, the attention of the makers of our Constitution was first drawn to this pernicious element in our legal and police system. While framing the Chapter on fundamental rights, they included the inviolable right to freedom and personal liberty which could not be taken away except according to the procedure established by law. Article 21 of the Constitution provides:-"No person shall be deprived of life or personal liberty except according to the procedure established by law".
Broadly speaking, 'arrests' may be classified into two categories, viz.,
(i) arrests under warrants issued by a Court; and
(ii) arrests otherwise than such warrants.
Several sections under Chapter V of the Code, deal with arrests otherwise than under warrants issued by a Court under the Code, while sections 70 to 81 under Chapter VIB of the Code deal with arrests in execution of warrants issued by a Court under the Code.
Write the provisions for the persons who may be arrested without warrant
Section 41(1) of the Cr PC, 1973 provides the norms for the persons who may be arrested without warrant as under:
(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary-
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,
and the police officer shall record while making such arrest, his reasons in writing.
(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence.
(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.
The police officer may, in all cases where the arrest of a person is not required under the provisions of sub-section
(1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice, it shall be lawful for the police officer to arrest him for the offence mentioned in the notice, subject to such orders as may have been passed in this behalf by a competent Court.
Section 41B of the Code provides that every police officer while making an arrest shall-
(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;
(b) prepare a memorandum of arrest which shall be-
(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and
(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.
Section 41C of the Code makes the provision that the State Government shall establish a police control room-
(a) in every district; and
(b) at State level.
(2) The State Government shall cause to be displayed on the notice board kept outside the control rooms at every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests.
(3) The control room at the Police Headquarters at the State level shall collect from time to time, details about the persons arrested, nature of the offence with which they are charged, and maintain a database for the information of the general public.
Section 41D of the Code states that when any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.
Section 42 provides for arrest of a person if he refuses to disclose his identity if he is suspected to be one of the offenders. This section reads:
A police officer may arrest without a warrant any person who, in the presence of such an officer, has committed or has been accused of committing a non-cognizable offence and refuses to give his name and residence or gives a name and residence which such officer has reason to believe to be false [sub-section (1)].
In such a case the arrest is to be made for the purpose of ascertaining the name or residence and other such ascertainment, the arrestee shall be released on his executing a bond (with or without sureties) before a Magistrate if so required. If such a person is not resident in India, the bond shall be secured by a surety or sureties resident in India. If such ascertainment or execution of bond could not be had within 24 hours from the time of arrest, the arrested person shall be forwarded to the nearest Magistrate having jurisdiction [sub-sections (2)-(3)].
A non-cognizable offence is an offence where a police officer may not arrest without a warrant, but the following are cases where in a non-cognizable case, a police officer may arrest without a warrant, viz.,
(i) where a person appears to have committed a non-cognizable offence in the presence of a police officer and refuses to give his name and residence or gives a false name and residence.1
(ii) where a proclaimed offender is involved in a non-cognizable case.
(iii) where a person obstructs a police officer on duty and commits a non-cognizable offence under section 186 IPC.
(iv) where a previously convicted offender fails to notify his residence or charge of or absence from residence as provided in section 356 Cr PC and thus commits a cognizable offence under section 176 IPC.
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1. Vide section 42 of Cr PC, 1973
Arrest of an offender is not the sole duty of the police, it can be made by private individuals also. When a man is found committing a non-bailable and cognizable offence and then he tries to escape, the whole is to be treated as single transaction and any person who either sees him committing the offence is entitled to arrest him under section 43 Cr PC. Section 43 reads as under:
A private person may arrest any person, who in his presence, committed a non-bailable and cognizable offence, or any person who is a proclaimed offender. He must, without unnecessary delay, make over such person to a police officer or in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station [sub-section (1)]. If there is reason to believe that such person comes under the provisions of section 41, the police officer shall re-arrest him. [Section 41 sub-section (2)].
If, however, there is reason to believe that he has committed a non-cognizable offence, and he refuses to give his name and address to the police officer on his demand (or if he gives a name and address which appears to be false), such a person is to be dealt with under section 42. But if there is no sufficient reason to believe that he has committed any offence, he shall be at once released [sub-section (3)].
The provision of this section is extraordinary in the sense that it enables a private person to arrest a person in certain circumstances, and, therefore, the section must be construed in a manner so as not to enlarge the power of private individual to arrest a person; Amrendra Nath v. State of Bihar, MANU/BH/0017/1955 : AIR 1955 Pat 106 (107). The section is purely an enabling act and not in any sense obligatory.
Section 44 consists of two clauses (1) and (2). In sub-clause (1), the Magistrate has been given power to arrest the person himself or may order any person to arrest the offender, if a person commits a crime in his presence.
Under sub-clause (2), the offence has not been committed in his presence and he is not sure whether the person brought before him under arrest has really committed the offence or not. It is obvious because of this reason that he has not been given the power to commit the offender to custody. He can just arrest him or get him arrested and possibly can even search his person to find out whether he is possessed of any incriminating article or not. Beyond this, he is not permitted to do anything else; Ram Chandra v. State of Uttar Pradesh, 1977 Cri LJ 1783.
Proviso to section 46(1) provides that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.
Section 54 makes the procedure for examination of arrested person by medical officer in the way that:
(1) When any person is arrested, he shall be examined by a medical officer in the service of Central or State Governments and in case the medical officer is not available by a registered medical practitioner soon after the arrest is made:
Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner.
(2) The medical officer or a registered medical practitioner so examining the arrested person shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted.
(3) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person.
According to section 55A of the Code, 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.
Section 60A strictly provides that no arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest.
Sections 70 to 81 collected under sub-heading "Warrant of Arrest" in Chapter VI deal with execution of warrant of arrest under section 70 issued by a court. In Schedule II, Form No. 2, Form of a warrant has been given. This Form clearly shows that a warrant is an order or written authority given by a competent magistrate to arrest a person and to produce him before the court. If the crime is not committed in his presence, but if he is competent to issue the warrant, he may arrest the person before him.
Section 70 of the Code provides for the 'form of warrant of arrest and duration' in the following manner:
(i) The warrant must be in writing.
(ii) It must be signed by the presiding officer of the court issuing the warrant.
(iii) It must bear the court's seal.
(iv) It must give full name and description of the person to be arrested.
(v) It must clearly specify the offence for which person is charged.
(vi) It must bear the name and designation of the person to whom authority to execute such warrant is given.
Every warrant should state, as shortly as possible, the special matter on which it proceeds. A warrant should be issued strictly in accordance with law; J.K. More v. Chief Presidency Magistrate, 71 Cal WN 508. A strict adherence to the form of warrants of arrest prescribed by the Code will tend to prevent their being granted irregularly and without inquiry as to whether the circumstances justify their issue.
Where a person is arrested pursuant to or under cover of a warrant, the warrant must comply strictly with the terms of this section. Following are the essential requisites of a warrant:-
(i) Must be in writing;
(ii) Must be signed by the Presiding Officer of Court or Magistrate;
(iii) Must be sealed by Magistrate or Court
(iv) Must clearly identify the person to be arrested;
(v) Must specify the offence charged;
(vi) Warrant must clearly show the authority of person who is to execute the warrant;
(vii) Must include direction and if the person arrested under the warrant executes a bond and offers a security for his attendance in Court;
(viii) Age of the person to be detained must be mentioned in the warrant; Sanjay Suri v. Delhi Administration, MANU/SC/0137/1987 : AIR 1988 SC 414.
The Code itself does not provide for any time-limit for its validity. Therefore, when the Legislature has not prescribed any time period for which a warrant is to be in force, the presumption is that it retains its validity until it is executed or it is cancelled by the court; Emperor v. Alloomiya Hussain, ILR 288 (291). The force of a warrant of arrest continues until it is cancelled, in which case it is at an end and cannot be re-issued; Guru Charna (in re:), 1 CWN 650.
Every police official who arrests and detains any person for an offence can not detaine such a person in the police station for more than 24 hours, after which he must produce the said person before the Magistrate who is having jurisdiction over the area in which the offence is alleged to have been committed.
During this period of 24 hours, the police may make enquiries and investigation, ask questions and ascertain more facts about the case; the police officials make the case ready for prosecution before the Magistrate on the basis of their investigation. The accused or the detained persons may make some confessional statements before the police officials but such statements have not to be signed by the maker; such statements can be revoked by the persons making such statements when they are produced before the Magistrate.
In Criminal law, the rights of an arrested person are basically part of human rights. If these rights are not recognized by the law or if recognized, they are not respected and observed, no person would be protected against authoritarian rule of the State; and the right to freedom and personal liberty guaranteed under the Constitution would remain merely pious declaration.1 From the core of our criminal jurisprudence, it is important to note that with the enforcement of the Constitution of India, 'Right to life and Personal liberty' were adjudged to be the most precious possession of a man and declared as basic human rights under Article 21 of the Constitution; A.D.M., Jabalpur v. Shivakant Shukla, MANU/SC/0029/1975 : AIR 1976 SC 1027 (As per H.R. Khanna, J.). Law makers have provided and devised a number of safeguards under Articles 14, 19, 20, 22 and 39A of the Constitution, etc. to ensure that no one is victimized by the hands of the State functionaries. Now, let us discuss the constitutional & statutory rights and safeguards devised for the arrested persons:
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1. P.N. Bhagwati J., Foreward to A.N. Chaturvedi's book on `Right of the accused'.
(i) Right to know the grounds of arrest.-According to section 50(1) of the Cr PC, 1973:
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.
Secondly, when a subordinate officer is deputed by a senior police officer to arrest a person under section 55, such subordinate officer shall, before making the arrest, notify to the person to be arrested the substance of the written order given by the senior police officer specifying the offence or other cause for which the arrest is to be made. Non-compliance with this provision will render the arrest illegal.
Thirdly, in case of arrest to be made under a warrant, section 75 of the Cr PC 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.
(ii) Right against Ex-post Facto operation of Law.-
Clause (1) to Article 201 of the Constitution prohibits the State to give retrospective operation of criminal law. In other words, a person cannot be punished for a crime more than what was prescribed at the time of the commission of the offence. An ex-post facto law is a law which imposes penalties retrospectively i.e., on acts already done and enhances the penalty for such acts. The operation of law will be applicable prospectively only i.e. from the date the law was enacted.
(iii) Protection against double-jeopardy.-
Clause (2) to Article 202 embodies the common law rule of 'nemo debet bis vexari pro una et eadem causa' i.e. no man should be put twice in peril for the same offence. If a man is prosecuted again for the same offence for which he has already been prosecuted, he can take complete defence of his former conviction. The object of this provision is to avoid the harassment to a person by successive criminal proceedings when only one crime has been committed; Union Carbide Corporation v. Union of India, MANU/SC/0058/1992 : AIR 1992 SC 248; K.D. Gaur, Criminal Law Cases and Materials (3rd Edn., 1999) pp. 17 to 21.
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1. Article 20 Clause (1) runs as under:
"No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, not subjected to a penalty greater than which might have ben inflicted under the law in force at the time of the commission of the offence."
2. Article 20 Clause (2): "No person shall be prosecuted and punished for the same offence more than once".
However, if the act is both a crime and a tort, for instance as in case of defamation, an action may lie both in tort as well as in crime because proceedings in two cases are different. In the case of crime, the accused is punished, while in tort, the wrong doer is asked to pay damages to the injured. In other words, in crime, the nature of proceeding is criminal, while in tort, it is civil and hence it will not attract Clause (2) to Article 20 of the Constitution which puts ban on prosecution twice for the same offence.
(iv) Protection against self-incrimination and torture.-
The detainee is not bound to answer all questions put to him in the course of investigation if he thinks that such answers are likely to be self-incriminatory. Clause (3) to Article 20 of the Constitution provides that "No person who is accused of any offence shall be compelled to be a witness against himself".
Analogous provision has also been made in Cr PC, section 161(2) of the Code requires a person including an accused person to answer truly all questions put to him by investigating police officer and accused person may remain silent or may refuse to answer when confronted with self incriminating questions
In Nandini Satpathy v. P.L. Dani, MANU/SC/0139/1978 : AIR 1978 SC 1025; where a list of questions was provided to the appellant/petitioner and she refused to answer those questions, their Lordships of the Supreme Court observed that the accused cannot be forced to answer questions on the ground that the answers are not likely to implicate him/her because the case in investigation was an isolated one. The accused has the right to keep silent if the answers sought are likely to expose him/her to guilt in some other case, actual or imminent, although the investigation may have nothing to do with such other cases. Thus, when the accused are confronted with their statement before the police in the Court, they are entitled to deny the facts or the truth was given under threat, duress or inducement.
In M.P. Sharma v. Satish Chandra, MANU/SC/0018/1954 : AIR 1954 SC 300; the Supreme Court said that this right embodies the following essentials:
(a) It is a right pertaining to a person who is "accused of an offence",
(b) It is a protection against "compulsion to be witness",
(c) It is a protection against such compulsion relating to his giving evidence "against himself".
(v) Information regarding the right to be released on bail.-
Section 50(2) of the Code provides that the person arrested without any warrant should forthwith be intimated, where the offence is a bailable one, of his right to be released on bail.
This sub-section has been provided in the code to help those persons who might not be aware of their right to be released on bail in case of bailable offences.
(vi) Right to be taken before a Magistrate without delay.-
Whether the arrest is made without warrant by a police officer, or whether the arrest is made under the warrant by any person, the person making the arrest must bring the arrested person before a judicial officer without unnecessary delay. It is also provided that the arrested person should not be confined in any place other than a police station before he is taken to the Magistrate.1
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1. Vide sections 56 & 76 of the Code.
(vii) Right to consult a legal practitioner.-
The right to defence is one of the basic rights of an arrested person; See N.H. Hoskot v. State of Maharashtra, MANU/SC/0119/1978 : AIR 1978 SC 1548; as envisaged in Clause (1) to Article 22 of the Constitution. It affirms that an arrested person cannot be denied the right to consult and be defended by a legal practitioner of his choice. Section 303 of Cr PC, 1973 also provides for representation by a pleader of one's choice to an accused charged of an offence. And the Court is under an obligation to provide an amicus curie to defend an accused who is unable to engage a lawyer to defend him at the State expenses. The legal aid and assistance to the indigent and prisoners is a radical humanist concomitant of the rule of prison law. Article 39A of the Constitution is an interpretative tool for Article 21. Partial statutory implementation of the mandate is found in section 304(1) of the Cr PC, 1973 which provides for legal aid to the accused at the State expense in certain cases. Courts cannot be inert in the face of Articles 21 and 39A of the Constitution. If a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal, inclusive of special leave to appeal, for want of legal assistance, there is implicit in the Court under Article 142 read with Articles 21 and 39A of the Constitution, power to assign counsel for such imprisoned individual for doing complete justice. It is important to note here that, keeping in view the constitutional obligation, the Parliament in 1987 enacted the Legal Services Authorities Act, 1987 to provide free and competent legal services to the weaker sections of the society. The Act inter alia envisages to ensure that opportunities for securing justice are not denied to any citizen for reason of economic or other disabilities.
(viii) Right to be examined by a medical practitioner.-
This right has been envisaged in sections 53 and 54 of the Cr PC, 1973. While section 53 empowers a police officer to get an arrested person medically examined, section 54 of the Code provides that when any person is arrested, he shall be examined by a medical officer in the service of Central or State Governments and in case the medical officer is not available by a registered medical practitioner soon after the arrest is made. Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner. The medical officer or a registered medical practitioner so examining the arrested person shall prepare the records of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted. Copy of such report shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person on the person nominated by such arrested person.
(ix) Right against illegal detention.-
Right against illegal detention was not recognized prior to the Supreme Court decision in Hussainara Khattoon v. State of Bihar, AIR 1980 SC 1819; wherein, the plight of under-trial prisoners was considered for the first time. In this case, the Supreme Court granted a charter of freedoms for under-trials who had spent virtually their whole life awaiting trial, i.e., for the much longer period than the maximum term they could have served in jail had they been found guilty of charge.
It is a well known legal dictum that until a person is found guilty by a court of law he or she is presumed to be innocent. Unfortunately, in our jails there are more innocent captives than adjudged criminals. To make things worse, prison conditions are abominable (disgusting) and persons detained in prisons as undertrials are often subjected to various forms of torture, ranging from handcuffing to maiming and blinding as had happened in Bhagalpur. There is little justice within the four walls of prison.
In case of under trial prisoners, the period of detention should be included in the sentence meted out to them. But if they are to be acquitted, how can they be compensated for the agony which they have already undergone for no fault of theirs. This state of affairs is a sad commentary on our legal system and judicial process.
(x) Right of just and fair treatment.-
A pre-trial detainee, like any other prisoner is entitled to just and fair treatment by way of comfort, medical facilities etc. The practice of keeping undertrials with prisoners has been vehemently criticised and such a practice is held to be in violation of Articles 19 and 21 of the Constitution.
In Prem Shankar v. Delhi Administration, MANU/SC/0084/1980 : AIR 1980 SC 1535; also see Sunil Gupta v. State of Madhya Pradesh, MANU/SC/0661/1990 : (1990) 3 SCC 119, the court deplored the practice of handcuffing of the prisoner prima facie as "inhuman, arbitrary and unreasonable, and repugnant to Article 21". Similarly, in Kishore Singh v. State of Rajasthan, MANU/SC/0072/1980 : AIR 1981 SC 625; the Supreme Court held that the use of 'third degree' method by police is violative of Article 21 and directed the Government to take necessary steps to educate the police so as to inculcate a respect for the human person. Similarly, torture and ill treatment of men and women in police lockup have been held to be violative of Article 21.
(xi) Right of Public Trial vis-a-vis Speedy Justice.-
Speedy trial is the essence of criminal justice system and there can be no doubt that delay in trial by itself constitutes denial of justice. Section 327 of the Cr PC, 1973 provides for an open court proceedings, to which the public generally may have access. This is based on the principle of openness of judicial proceedings so as to check against capricious exercise of judicial power or vagaries and to ensure confidence of public in judicial administration. The right to have public trial is also implicit in Articles 14, 19(1)(a) and 21 of the Constitution. Of course, inquiry into and trial of crime against women, such as rape or an offence under sections 376, 376A, 376B, 376C and 376D, I.P.C. dowry death (section 304B), abetment to suicide of a married woman (section 306), cruelty by husband or relatives etc. (section 498A I.P.C.) shall be conducted in camera if the presiding judge feels so in view of the sensitive nature of the proceedings.1
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1. See Clause (2) to section 327 of Cr PC; also State of Punjab v. Gurmit Singh, AIR 1988 SC 3164.
Though speedy trial is not specifically enumerated as a fundamental right in the Constitution, it is implicit in the broad sweep and content of Article 21 as interpreted by the Supreme Court in Maneka Gandhi v. Union of India, MANU/SC/0133/1978 : AIR 1978 SC 597; in which the court held that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law. And it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be reasonable, fair and just. If a person is deprived of his liberty under a procedure which is not reasonable, fair or just, such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Procedure, which does not ensure a reasonably, quick and speedy trial, cannot be regarded as reasonable, fair or just and it would fall foul of Article 21.
In Abdul Rahman Antulay v. R.S. Nayak, MANU/SC/0326/1992 : AIR 1992 SC 1701; Supreme Court laid down detailed guidelines for speedy trial of an accused in a criminal case but it declined to fix any time limit for trial of offences. In a recent case, P. Ramachandra Rao, (2002) 4 SCC 507; the Supreme Court while approving Antulay, held that speedy trial in criminal cases is one of the basic requirements. However, no limitation could be fixed to terminate the proceedings in a criminal case. Every case is to be judged on the facts and circumstances of its own and the court will decide accordingly.
In D.K. Basu v. State of West Bengal, MANU/SC/0157/1997 : AIR 1997 SC 610 (623);1 the Supreme Court has outlined a charter of rights of the arrested person to safeguard the interest of the arrestee and these are as follows:
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. That the police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of 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.
2. 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.
3. 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.
4. 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.
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1. The Executive Chairman, Legal Aid Services, West Bengal, on 26th August, 1986 addressed a letter to the Chief Justice of India drawing his attention to certain news items published in the Telegraph newspaper dated 20th, 21st and 22nd July, 1986 and in The Statesman and Indian Express dated 17th August, 1986 regarding deaths in police lock-ups and police custody or prison. The letter was treated as a writ petition under "public interest litigation". While the writ petition was under consideration a letter addressed by Shri Ashok Kumar Johri on 29th July, 1987 to the Hon'ble Chief Justice of India drawing the attention of the court to death of one Mahesh Bihari of Pilkha, Aligarh district of U.P. in police custody was received. The letter was also treated as a writ petition and was directed to be listed along with the writ petition of D.K. Basu.
5. An entry must be made in the diary at the place of detention regarding arrest 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.
6. 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.
7. 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 concerned State or Union Territory, Director, Health Service should prepare such a panel for all Tehsils and Districts as well.
8. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa (area) Magistrate for his record.
9. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
10. 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 2 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous place.
The Supreme Court has held that-
(i) "The above requirements, flow from Articles 21 and 22(1) of the Constitution. It must be strictly followed; and
(ii) These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by this court time to time in connection with the safeguarding of the rights and dignity of the arrestee.
In Joginder Kumar v. State of Uttar Pradesh, MANU/SC/0311/1994 : (1994) 4 SCC 260; a writ petition was made before the Supreme Court under Article 32 of the Constitution by the petitioner against his illegal detention.
The Supreme Court observed and held as under:
"The horizon of human right is increasing. At the same time, the crime rate is also increasing. Of late, this court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two? A realistic approach should be made in this direction. The law of arrest is one of balancing individual's rights, liberties, and privileges, on the one hand, and individual duties, obligation and responsibilities on the other [As observed in People v. Defore, 242 NY 13 (24)].
The court observed and held: "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. A person is not liable to be arrested merely on the suspicion of complicity 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 person to attend the station house and not to leave the station without permission to do so". These rights are inherent in Articles 21 and 22(1) of the Constitution and requires to be recognized and scrupulously protected. It shall be the duty of the Magistrate, before whom arrested person is produced, to satisfy himself that the requirements of Articles 21 and 22(1) of the Constitution are complied with."
For the effective enforcement of these fundamental rights, the Supreme Court issued the following requirements:
1. An arrested person being held in custody is entitled, if he so requests to have friend relative or other person who is known to him or likely to take an interest in his welfare (to be) told as far as it is practicable that he has been arrested and where he is being detained.
2. The police officer shall inform the arrested person when he is brought to the police station of his right.
3. An entry shall be required to be made in the Diary as to who was informed of his arrest.
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