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Arrest serves the dual purpose of ensuring an individual's presence at trial for offences with which they are associated and preventing the commission of criminal acts. In our democratic society, the law places paramount importance on the "personal liberty" of every individual and vehemently opposes the detention of anyone without legal authorization.
Article 21 of the Constitution expressly safeguards this liberty, stating, "No person shall be deprived of his life or personal liberty except according to procedure established by law."
The procedure mandated by this article must be fair, just, and in accordance with the law, eschewing arbitrariness, capriciousness, or oppression.
Legal and justified arrest must adhere strictly to the established legal procedure. While the Criminal Procedure Code (CrPC) grants the police various powers to facilitate arrests, these powers are subject to specific constraints. These constraints can be viewed as recognizing the "rights of the arrested person."
Moreover, several provisions within the CrPC and the Constitution explicitly establish significant rights in favour of the arrested individual. The Constitution of India, in particular, acknowledges the rights of arrested persons as part of the Fundamental Rights guaranteed to every citizen.
Post Arrest Procedure
(a) Search of Arrested Person:
Section 51 of the CrPC grants police officers the authority to conduct a search of the arrested individual under specific circumstances.
This search, often pivotal for thorough investigation, allows for the seizure of incriminating items or stolen articles, which can then be presented in court under Section 102. Section 51 stipulates that:
Upon arrest, if the person cannot furnish bail, or if bail is not provided for in the warrant, the arresting officer or the police officer to whom the arrested person is handed over may conduct a search.
Any articles, excluding necessary wearing apparel, found during the search are to be placed in safe custody, and a receipt detailing the seized items must be provided to the arrested person.
In cases where a female requires a search, it must be conducted by another female with strict regard to decency.
While the section does not mandate the presence of witnesses during the search, regulations under the Police Act recommend conducting the search in their presence. These witnesses should be independent and reputable.
Notably, the power to search under Section 51 is applicable only if the arrested person is not released on bail.
(b) Seizure of Offensive Weapons:
Section 52 of the CrPC empowers the officer or person making the arrest to seize any offensive weapons carried by the arrested individual. These weapons must be promptly delivered to the court or the designated officer. It's essential to highlight that any person authorised to make an arrest under the CrPC can execute the seizure.
(c) Medical Examination of Accused After Arrest:
In order to facilitate effective investigation, provision is made for the examination of the arrested person by a medical practitioner when there are reasonable grounds to believe that such examination will provide evidence related to the alleged offence.
Section 53 of the Criminal Procedure Code (CrPC) empowers senior police officers to compel the accused person in custody to undergo a medical examination. The section stipulates:
- When an arrest is made for an offence where there are reasonable grounds to believe that a medical examination of the accused will provide evidence, a registered medical practitioner, acting at the request of a police officer not below the rank of Sub-Inspector, may conduct the examination. This may include the examination of various bodily fluids and tissues using modern scientific techniques.
- In cases involving female accused persons, the examination must be conducted by, or under the supervision of, a female registered medical practitioner.
The provision raises questions regarding its compatibility with the constitutional privilege against self-incrimination. However, considering the Supreme Court's decision in State of Bombay v. Kathi Kalu Oghad, it has been concluded that Section 53 does not violate this privilege as it pertains solely to testimonial evidence.
The power to compel the accused to undergo medical examination is subject to various conditions, aiming to balance individual rights and societal interests. The examination may encompass various forms, including internal examinations if necessary for collecting evidence.
The section allows for the use of force as reasonably necessary for the examination, acknowledging that some discomfort may result from the process.
Although the examination is initiated by a police officer not below the rank of sub-inspector, superior officers or the court may also exercise this power if deemed necessary for the administration of justice in a criminal case. The court may issue directions or grant approval for further investigation under Section 53 as required.
(d) Reporting Arrests to District Magistrate:
Section 58 mandates that officers in charge of police stations must report to the District Magistrate, or as directed, to the Sub-divisional Magistrate, all cases of persons arrested without warrant within the jurisdiction of their respective stations, regardless of whether such individuals have been granted bail or not.
The purpose of this report is to ensure that the District Magistrate and other relevant authorities are kept informed about arrests made within their jurisdictions, particularly in cases involving serious offences. This facilitates effective oversight and management of law enforcement activities.
Rights of Arrested Person
(a) Right to Know the Grounds of Arrest:
Section 50(1) of the Code of Criminal Procedure stipulates that every police officer or person arresting an individual without a warrant must promptly communicate to the arrested person the full particulars of the offence for which they are being arrested or the grounds for such arrest.
Furthermore, when a subordinate officer is delegated by a senior police officer to carry out an arrest under Section 55, it is mandated that the subordinate officer must, before effecting the arrest, inform the individual to be arrested about the substance of the written order provided by the senior police officer, specifying the offence or cause for the arrest. Failure to adhere to this provision renders the arrest unlawful.
Similarly, in cases where an arrest is to be made under a warrant, Section 75 requires that the police officer or person executing the warrant must notify the individual to be arrested of the substance of the warrant and, if requested, must show them the warrant. Any failure to notify the substance of the warrant renders the arrest unlawful.
Moreover, Article 22(1) of the Constitution of India enshrines the right of an arrested person to be informed of the grounds for their arrest. This fundamental right ensures that individuals have timely knowledge of the reasons behind their arrest, enabling them to take necessary legal actions such as applying for bail or seeking legal representation.
The Supreme Court has emphasised the significance of this right, highlighting its role in safeguarding personal liberty. Timely communication of the grounds for arrest allows individuals to address any misunderstandings with the arresting authority and to seek legal advice and representation promptly.
It is imperative that the grounds for arrest are communicated in a language understood by the arrested person to ensure compliance with constitutional requirements. While Article 22(1) allows for communication of grounds "as soon as may be," Section 50(1) imposes a stricter duty on police officers to communicate the grounds immediately.
In cases where arrests are made by a Magistrate without a warrant, the Code does not explicitly require the Magistrate to communicate the grounds of arrest. However, this does not pose practical difficulties, as Magistrates are still bound by Article 22(1) of the Constitution to state the grounds for arrest.
To further strengthen the protection of arrested persons' rights, Section 50-A mandates police officers to inform a friend or relative of the arrested person about their arrest and to maintain a register of such notifications. Magistrates are tasked with ensuring compliance with these provisions.
(b) Information Regarding the Right to Bail:
Section 50(2) of the Code of Criminal Procedure mandates that when a police officer arrests an individual without a warrant for an offence other than a non-bailable offence, they must inform the arrested person of their entitlement to be released on bail. Additionally, the arrested person should be informed that they have the option to arrange for sureties on their behalf.
This provision serves to educate individuals about their rights to seek bail in cases of bailable offences, potentially improving their perception of law enforcement and reducing discontent.
(c) Right to Prompt Appearance Before a Magistrate:
Regardless of whether an arrest is made with or without a warrant, the individual arrested must be promptly brought before a judicial officer without unnecessary delay. Sections 56 and 76 of the Code outline this requirement:
- Section 56 stipulates that a police officer making an arrest without a warrant must, without undue delay and subject to bail provisions, take or send the arrested person before a Magistrate having jurisdiction in the case or before the officer in charge of a police station.
- Section 76 requires the police officer or person executing a warrant of arrest to promptly bring the arrested person before the court specified in the warrant, without unnecessary delay. However, this delay should not exceed 24 hours, excluding the time needed for the journey from the place of arrest to the Magistrate’s Court.
(d) Right to Judicial Scrutiny Within 24 Hours:
Section 57 of the Code establishes the right of an arrested person not to be detained in custody without judicial scrutiny for more than 24 hours. This provision applies whether the arrest is made with or without a warrant.
It mandates that no police officer should detain a person arrested without a warrant for a period longer than what is reasonable under the circumstances of the case.
This period should not exceed 24 hours, excluding the time required for the journey from the place of arrest to the Magistrate’s Court, unless a special order of a Magistrate under Section 167 is obtained.
(e) Right to Consult a Legal Practitioner:
Article 22(1) of the Constitution guarantees that no arrested person shall be deprived of the right to consult a legal practitioner of their choice. This constitutional provision ensures that individuals have access to legal advice and representation from the moment of their arrest.
The State is obligated to provide free legal aid to indigent accused persons, as established by the Supreme Court and implicit in Article 21 of the Constitution.
The right to consult a lawyer commences immediately upon arrest and extends throughout the legal process. Section 303 of the Code of Criminal Procedure reinforces this right by stipulating that any person facing proceedings under the Code has the right to be defended by a pleader of their choice.
Consultations between an arrested person and their lawyer may take place in the presence of a police officer but should not be within the officer's hearing, ensuring confidentiality and effective legal counsel.
(f) Right of an Arrested Indigent Person to Free Legal Aid and Information:
In Khatri (2) v. State of Bihar, the Supreme Court emphasised the constitutional obligation of the State, implicit in Article 21, to provide free legal aid to indigent accused persons.
This obligation arises not only during the trial but also when the accused is first brought before the Magistrate and during subsequent remands.
However, the effectiveness of this constitutional right hinges on the prompt and proper information provided to the accused. The Court mandated that all Magistrates and courts have a duty to inform indigent accused individuals about their right to free legal aid when they are produced before the court.
Failure to provide such information may render the legal process inadequate and compromise the accused's ability to access justice.
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