Safeguards against Arrest

Constitutional Safeguards:

Indian Constitution itself provides some basic safeguard to the Accused person which are to be followed by the Authorities during the process of Criminal Administration of Justice. There are some provisions which expressly and directly create rights in favor of the arrested Person.

Article 21 of Indian Constitution says that no Person be deprived of his Life and Liberty except in procedure laid down by Law. Any Procedure which is taking the Life and Liberty of an Individual must be just fair and reasonable, held in the case of Maneka Gandhu V UOI, 1978.

In relation to above Article and Section 46(4) CrPC, The Bombay High Court recently in the Case of Kavita Manikikar Vs CBI & Ors. 2018, imposed a fine of Rs 50000 on CBI for an illegal arrest made by its officers. It ruled that arrest was in Violation of the provisions, observing the precious guarantee of Life and Liberty as enshrined in Art. 21 of Constitution of India available to a citizen of this Country cannot be denied to a convict, an accused in custody and surely not to a suspect who is sought to be converted to an accused on investigation and then from an accused to a convict on trial. It is an obligation upon State to ensure that there is no infringement of indefeasible right of citizen to life and liberty, which he cannot be deprived of without following the procedure established by law. The Code of Criminal Procedure which outlines the manner and to the extent to which a person can be denuded of his liberty, hence, needs a strict compliance. Any deviation from the prescribed procedure in the matter of arrest can therefore, be not countenanced and is liable to be declared as illegal.

  •  Article 20(3): provides that an arrested person has a right to remain silent so that Police cannot extract self-incriminating statement without his will or consent.
  • Article 22: It provides the following rights to the Person arrested and detained in the Custody.

22(1)- provides Right to be informed of the grounds for Arrest. In addition to the Constitutional Provision, Section 50(1) and 75 also provides for the same. The grounds of arrest should be communicated in the language understood by the Accused, otherwise it would not amount to sufficient compliance with the Constitutional requirement as well as provision of CrPC.

This clause further provides the right to be defended by Lawyer as it is essential for a fair Trial. The right is recognised because of the Obvious fact that ordinarily an accused Person does not have the Knowledge of Law and skills to defend himself. The arrested Person could have consultation with his friends and relatives, The Consultation with the Lawyer may be in the presence of Police Officer.

 22(2) provides that an arrested person must be taken to the Magistrate within 24 hours of arrest, similar provisions exist under Section 57 and 76 of CRPC. Any detention beyond this period could amount to illegal detention.

  • Article 39A: provide for free legal aid. Similar provision exists under 304 CrPC. This right to free legal aid for the accused cannot be refused even when the accused fails to ask for it himself.

Rights Provided Under CrPC

  • Section- 50 of the Code of Criminal Procedure (CrPC) says that every police official with authority to arrest someone without a warrant must inform the person getting arrested about the crime for which he is arrested and other relevant grounds for the arrest. This is the duty of the police official which he cannot refuse.
  • Section- 50Aof CrPC makes it compulsory for the person/ police official arresting a person to inform of the arrest to any of his relatives or even friends who may have interest in the same.
  • Section- 55 of CrPC states that in situations where a police official authorises his junior to arrest a person without a warrant, the junior official must notify the arrested person of the order of delegation that is given which must also mention the crime and the grounds of arrest.
  • Section- 75 of CrPC states that the police official executing the warrant must notify the substance to the arrested person and furnish the warrant of the arrest when required.

Section- 50 (2) of CrPC provides that the arrested person has the right to get released on bail by making arrangement for the sureties or just inform him of his right when arrested without a warrant for an offence other than a non-cognizable offence.

  • Section- 41D of CrPC allows prisoners to be able to consult with their lawyers even during their interrogation.
  • Section- 303 of CrPC allows every alleged convict/ criminal the right to be defended by a lawyer of his choice even if the criminal proceedings against him have already begun.

Important case Laws:

D.K. Basu v. State of W.B

 Despite several attempts being made by issuing guidelines in various cases, to eradicate the possibility of the committing torture by the police officials, there were frequent instances of police atrocities and custodial deaths. Therefore, the Supreme Court, in this case, issued some guidelines which were required to be mandatorily followed in all cases of arrest or detention.

 Following are some of the important ones:

 The person who is going to arrest any accused should bear accurate, visible, and clear identification along with their name tags with their designation. The police officer who is arresting the arrestee must prepare a memo of arrest, and it should be attested by at least one person who may either be a family member of the arrestee or any other respectable person in the locality. The memo must contain the date and time of arrest and must also be countersigned by the arrestee. If the person who has signed the memo of arrest is not a family member, relative or friend of the arrestee, then the arrestee is entitled to have one friend or relative being informed about his arrest as soon as possible.

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. 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. The police officer should, on the request of arrestee, record at the time of his arrest major and minor injuries, if any, present on arrestee’s body, after subjecting the arrestee to an examination. The “Inspection Memo” must be signed both by the arrestee and the police official making such arrest, and one copy of that memo must be provided to the arrestee. Copies of all the documents including the memo of arrest, referred to above, should be sent to illaqa Magistrate for his record.

The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. The court also ordered that in every district and state headquarters, a police control room should be established, wherein every arrest which is being made must be reported by the police officer making such arrest within 12 hours of such arrest, and it should be displayed on a conspicuous notice board. The Court also emphasized failure to fulfil the given requirements would render the concerned officer liable for contempt of court along with departmental actions, and such proceedings can be initiated in any High Court having the territorial jurisdiction over the matter.

Yoginder Singh Vs state of Punjab:

The Court held that for the enforcement of Article 21 and 22(1) it is necessary that: –

  1. The arrestee has the right to have informed about his arrest to any of its friends, relative or any other person in his interest.
  2. The police officer should aware of the arrestee about his right immediately when he is brought under the custody.
  3. The entry must be made in a diary regarding the name of the person who has been informed about the arrest.

About the Author: Vineet Nagar is an advocate and is Practicing at the Supreme court Of India. He has successfully protected the environment laws through PIL Original Application no. 298 of 2020. (Vineet Nagar Vs. Central Ground Water Authority and ORs.)

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