This article is written by Mrigank singh, student at symbiosis law school , hyderabad
Abstract:
Arrest procedures in India form a very essential part of the law enforcement machinery since, in the maintenance of peace and order, protection of rights of individuals is ensured. This abstract examines both the legal framework and practical application of arrest procedures in the Indian context.
The Code of Criminal Procedure, 1973 CrPC is the law that governs the procedure of criminal law in India. Powers, duties, and rights of the police to arrest have been detailed therein. The fundamental basis of this procedure is, a lawful detention on reasonable suspicion or on the strength of a warrant issued by a competent court authority. As it has been duly said, every person is presumed to be innocent until his guilt is proved [Sec.4(2), CrPC], and, therefore, arrest shall be made in a manner laid down in the Code, ensuring compliance with fair procedure established by law, rooted in human dignity.
But the apprehensions relating to arbitrary arrest continue in politically sensitive cases or during social unrest. Effective judicial scrutiny with adequate procedural safeguards would go a long way in minimizing this risk and ensuring that the detention is in conformity with constitutional principles and international norms of human rights.
This abstract develops changes and challenges in the arrest procedure, relating to striking the golden mean between law enforcement and protection of individual freedom in the changing scenario of Indian criminal justice.
Introduction:
Arrest is a significant step in the process of criminal justice since it includes the restriction of an individual’s freedom. In India, the Code of Criminal Procedure, 1973 (CrPC) governs arrest, custody, and bail. However, there have been recent worries regarding the overuse of the arresting provision, which has resulted in a violation of the accused’s rights. As a result, there is a need to develop a Draft Arrest Policy that focuses on the arrest procedure, the rights of the detained individual, and the requirement for modification or amendment, if necessary, to the current CrPC provisions. A person is placed in custody after being apprehended by the authorities or another judicial agency for committing a crime. It is an important tool for maintaining social order. The Criminal Procedure Law of 1973 gives India’s police the right to conduct arrests. However, an arrest procedure may have a substantial impact on the individual’s fundamental rights and liberties. To guarantee that this position of power is handled properly and in accordance with the law, a robust arrest policy is required.
Procedure of Arrest:
The CrPC clearly outlines the arrest process. Section 41 of the Criminal Procedure Code allows a police officer to make an arrest without a warrant if they believe a person has committed a felony punishable by up to seven years in prison or more. In addition, the officer must submit the arrested individual to a magistrate within 24 hours after the arrest and tell individuals of the reason(s) for their custody.
However, the police have frequently exploited this rule, using it to intimidate and harass individuals. The clause has to be amended to provide safeguards against arbitrary and wrongful arrests. In its 277th report, the Law Commission of India proposed establishing criteria for police to follow while making an arrest. These regulations emphasise the need of police informing detainees of their legal rights and the reason or reasons for their arrest, preventing unnecessary restraints, and bringing the prisoner quickly before a magistrate.
Judicial Interpretation of Arrest in India
According to the Indian judiciary, an individual’s fundamental rights must be balanced against the authority to conduct an arrest. In D.K. Basu v. State of West Bengal (1997), the Indian Supreme Court established a set of guidelines that police must follow while making an arrest. These regulations address the right to be informed of the reason(s) behind your arrest, the right to representation, and the right to a health assessment. The court further directed that the police prepare an arrest report at the moment of the arrest, which has to be verified by no fewer than one witness, who may be a relative or a reputable local.
In conformity with Article 21 of the Indian Constitution, the Supreme Court of India has established the right to bail as a fundamental right Arnesh Kumar v. State of Bihar (2014), the court stated that while making an arrest, police officers must take extreme discretion and only do so if they feel it is necessary for the investigation. decision created critical restrictions to avoid the abuse of arrest authorities in harassment of dowries cases. The court held that in certain cases, police cannot make an arrest before carrying out a preliminary inquiry to determine the veracity of the accusations.
ARREST WITHOUT WARRANT:
Police officers are allowed to make an arrest without a magistrate’s warrant under Sections 41, 42, and 151 of the CRPC.
According to Section 41(1) of the CRPC, Any member of the police force may detain a person without a warrant if he or she finds out that the suspect has been charged with any cognizable offence, is in withholding property that was stolen, is currently declared an official criminal by the authorities, has prevented an investigating officer from carrying out his duties, tried to evade capture, and so on.
In the case of Joginder Kumar v. State of U.P, it was determined that in order to arrest someone without a warrant, there must be a valid grounds for the arrest.
Furthermore, in the case of State v. Bhera 1994, it was determined that before a police officer may arrest someone, reasonable suspicion or reliable information must be linked to specific claims that the officer must personally consider.
According to Section 42 of the CRPC, A police officer may hold someone without a warrant if they refuse to provide the officer their name or residence, or if the officer has reasonable grounds to suspect that the details they were given was inaccurate.
According to Section 151 of the CRPC, A police officer may also hold a person lacking a warrant if they are considered to be plotting a crime. However, two requirements have to be satisfied: first, the predicted crime must be cognizable, and secondly, the investigating officer must consider that holding the suspect is the only way to halt the crime.
ARREST BY WARRANT :
When somebody commits a non-cognizable offence, which is less severe in nature, a warrant is obtained so as to carry out the arrest. A warrant is issued when a person commits an offence punishable by more than two years in prison, execution, or both. The magistrate or judge may grant a warrant on the behalf of the authorities. Sections 70–81 of the CRPC explain the full warrant arrest process. The warrant is first granted by the court and approved by the presiding officer before it is issued to one or more law enforcement officers. A warrant directed to a police officer may be served by any other officer whose name appears on the warrant. The police officer should next advise the arrested individual about the circumstances. The police will then bring the culprit to court without additional delay.
HOW ARREST IS DONE WITH OR WITHOUT WARRANT (Section 46)
Section 46 of the CRPC, Deals with the subject of the manner in which an arrest is made; it explains the entire set of standards that have to be followed whether or not a warrant is issued. According to section 46(1) of the CRPC, the person making the arrest should touch or restrain the arrested person’s body. In the case of Birendra Kumar Rai v. Union of India, It was ruled that if the individual agrees to detention, the arrest does not have to be carried out with cuffs and may instead be completed verbally.
When a person scheduled to be held attempts to violently oppose or dodge arrest, police personnel are permitted by Section 46(2) to use appropriate force or measures to make the arrest. Section 46(3) does not authorise a police officer to murder a person who has not been accused with a crime punishable by life in prison or the execution penalty, as per the law.
According to Section 46(4), A woman cannot be taken into custody before dawn or after sunset unless there are extraordinary conditions; but, in certain circumstances, a female police officer can request an arrest by making an appeal to the Judicial Magistrate with local authority, requesting advance authorization to do so.
Need for Revision and Alteration of India’s Arrest Laws :
Despite the fact that India’s Code of Criminal Procedure of 1973 offers various protections and rights, the ability to arrest is overused and exploited illegally in many instances throughout the country. The power to arrest anyone is commonly used for extorting money, other goods, or the person’s adversaries. This arrest power is also exploited in legal disputes, with many innocent persons being falsely accused. The CRPC’s broad discretion when apprehending a person for bailable offences, along with the added capacity to conduct preventative arrests, gives police officers extraordinary power that may be readily misused.
Another key cause for modifying and amending India’s present arrest laws is an increase in custody mortality. Even after the Supreme Court of India issued multiple instructions in landmark cases, custodial fatalities in our nation have not decreased, particularly in north Indian provinces such as Uttar Pradesh. Various experts have stated that custody fatalities and police violence demonstrate that the Supreme Court’s instructions are ‘Brazenly ignored’ by the police. According to the most recent data available, 4,484 custodial deaths have occurred during the last two years. The data indicated that Uttar Pradesh had the highest number of custodial fatalities in India, with 952, comprising 451 in 2020 and 501 in 2021.
As a result, it is now time for another reform to India’s arrest laws to safeguard our citizens against unlawful arrests. It is critical that the reforms made be fully applied throughout the country, and that anybody who violates the statutes of arrest face severe consequences.
PROPOSED AMENDMENTS WITH JUSTIFICATION
As a member of the Indian Law Commission, I suggest the following revisions to India’s present arrest laws, which are backed by court rulings and other verified sources such as legal committee studies and foreign instruments:
- Section 42 of the CRPC discusses arrest for refusing to provide a name and where they live, and section 42(2) states that once the person’s real identity and place of abode are established, he or she will be released in return for submitting a bond, either with or without guarantees, and agreeing to testify before a magistrate as needed: along with the caveat that the bond must be supported by an Indian resident promise if the party in controversy does not reside in India. The Commission proposes repealing Sub-Section (2) of Section 42 of the Code of Criminal Procedure because it belives to be superfluous and unnecessary.
- The law enforcement agencies can be classified into many groups based on the type of crime or civil wrong committed. For example, there may be a section for crimes against children, another for organised crime/terrorists, a third for cybercrime, and a fourth for offences towards women, such as rape, murders for honour, dowry deaths, and so on. The Ministry of Law and Justice made a similar recommendation, recommending that its earlier 154th report be repeated and applauding the explanations therein for the establishment of a separate investigating agency as well as separating the members of the examining and safeguarding agency from the police personnel involved in maintaining law and order.
- Numerous law commission findings say that reforms are needed in police officer training and organisational culture. Police officers should be obliged to work up to ten hours each day, rather than 18 hours. Each police station must rotate shifts, and no one shall be able to serve more than two straight shifts in 36 hours.
- In the historic decision of D.K Basu v. State of West Bengal ,the Supreme Court imposed mandatory criteria for arrest, custodial death, and incarceration. As a result, the Law Commission recommended that the Supreme Court’s recommendations, as well as the consequences for violating them, should appear in the fifth chapter of the Code of Criminal Procedure.
- To avoid arbitrary usage, preventive detention should be moved from the list of concurrent uses to the state’s list. For defence, foreign policy, and national security, the central government must instead deploy a separate force to detain a person.
- The Law Commission has also discussed the bail laws. In this context, it has been proposed that bail be the standard, with denial as a last resort for offences punishable by up to seven years in jail, regardless of a fine. In the case of other serious offences, the court must exercise its discretion, taking into account every pertinent detail while bearing in mind the necessity to maintain a balance between the interests of the public at large in maintaining the rule of law and the accused person’s constitutional, legal, and human rights.
CONCLUSION:
Notwithstanding earlier verdicts, charges of abuse of arrest authority continue, despite the fact that the directives and directions included therein were legally published by the various Directors General of Police in every state and made accessible to all police personnel. Our attention, as well as that of all accountable members of society, has been drawn to numerous examples of similar behaviour. The Law Commission feels that more could be done to prevent the improper use and abuse of the power to arrest while protecting society’s interests in preserving peace, law, and order. It is thus crucial to enact suitable legislative changes that not just include the previously mentioned regulations and instructions but also create any necessary modifications to the laws to avoid the abuse or misuse of the previously mentioned power, while simultaneously guaranteeing that the public’s interest in preserving peace, law, and order is not compromised.
In a nutshell India’s arrest policy has evolved significantly all over time, with the introduction of various statutory protections to protect individuals’ rights throughout arrest and detention. The country’s Constitution guarantees one’s right to personal liberty and prohibits arbitrary arrest and detention. The Code of Criminal Procedure establishes certain conditions for arrest, including the need for a search warrant in non-cognizable offences, reasonable doubt of guilt, and notifying the person being detained of the grounds for arrest.
