Right of is arrest person
What is 'arrest'?
Ballantyne Law Dictionary 1948 Ed.P. According to 105, arrest means the taking, confiscation, or custody of another's person, either by touching him, or by laying his hands on him, or by any act which indicates an intention to take him. In custody, and subjects arrested according to the actual control and will of the person making the arrest. V and Sections 41 to 59 of the Criminal Procedure Code 1973, under consideration, pertain to the arrest of persons.
According to section 41(1) Cr.PC, any police officer may, without order of a Magistrate and without warrant, arrest any person,
- which relates to any cognizable offence, or a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists;
- who is in his possession of any implementation of house breaking;
- declared guilty or
- in whose possession anything is found which may be suspected of being stolen property;
- who obstructs a police officer in the performance of his duty, or who has escaped, or attempts to escape, from lawful custody;
- There is a suspicion of desperation from any of the armed forces.
As per section 42 of Cr.PC, any person who, in the presence of a police officer, has committed or has been charged with the commission of a non-cognizable offense, refuses to give his name and residence to such officer. Can do, arrested.
As per section 50 of Cr.PC, a person arrested without warrant must be informed of the grounds of his arrest and his rights with respect to bail.
As per section 53 of Cr.PC, when a person is arrested and if there are reasonable grounds to believe that an examination of his person would cost evidence as to the commission of the offence, it shall be lawful for a registered medical practitioner shall, acting on the request of a police officer not below the rank of sub-inspector (and for any person in good faith in his aid and direction), to make such examination of the person arrested as reasonably necessary. for, and to use such force is reasonably necessary for that purpose.
When the person of a woman is to be examined under this section, the examination shall be carried out only by or under the supervision of a female registered medical practitioner.
As per section 56 of Cr.PC, a police officer making an arrest without delay and subject to the provisions contained herein, before having jurisdiction in the case of the person arrested or taken as bail, or He can be arrested before that. Officer in charge of a police station.
As per section 57 of Cr.PC, no police officer shall take into custody a person who has been arrested without a warrant, unless all the circumstances of the case are just, and for such period, in the absence of a special order Won't happen. A magistrate exceeds 24 hours from the time required to travel from the place of arrest to the magistrate's court under section 167.
As per section 151 of Cr.PC, a person can also be arrested to prevent the commission of cognizable offences.
What is meant by "bailable/non-bailable offences"?
Answer:
- Under the Code of Criminal Procedure 1973 (First Schedule), offenses are classified as 'bailable' and 'non-bailable' offences.
- In case of bailable offence, it is binding on the investigating officer to grant bail. However, in case of a non-bailable offence, the police cannot grant bail and bail can only be granted by a Judicial Magistrate/Judge.
- In case of bailable offences, if the accused produces reasonable bail, and fulfills other conditions, it is bound to grant bail to the Investigating Officer.
- In case of non-bailable offence, the Investigating Officer has to produce the accused before the concerned Judicial Magistrate/Judge within 24 hours of the arrest. At that time, the accused has the right to apply for bail.
Guidelines issued by National Human Rights Commission (NHRC) regarding arrests
Need for Guidelines
The meaning of arrest is to restrict the liberty of the arrested person, hence, it violates the fundamental right of human beings to liberty. However, the Indian Constitution, as well as international human rights law, recognizes the powers of the state to arrest any person as a part of its primary role to maintain law and order. The Constitution requires a just, fair and reasonable system established by law under which the deprivation of liberty is permissible. Although Article 22(1) of the Constitution provides that every person under arrest shall be informed of the reason for the arrest as soon as may be and he shall not be denied the right to consult a lawyer of his choice and the Code of Criminal Procedure, 1973 Section 50 (Cr.P.C.) requires a police officer arresting a person to "promptly inform of the full particulars of the offense for which he has been arrested or any other reason for such arrest". In fact these requirements are not complied with. Similarly, the speedy production of the arrested person in the court is mandatory in both the Constitution (Article 22 (2) and Cr.P.C. (Section 57), also strictly. is not followed.
Several complaints have been received regarding violation of human rights and abuse of powers of the police. That is why it has become necessary to lay down guidelines regarding arrest in order to bridge the gap between law and feasibility, as well as maintaining law and order and enforcement of law and proper investigation. Powers cannot be unnecessarily restricted.
Before arrest
The power to arrest without warrant can be exercised after arriving at a reasonable decision after certain investigations, having reasonable belief as to the truth and gravity of a complaint and the guilt of both the persons, as well as the need to be arrested. Is . (Joginder Kumar Case- (1994) 4 SCC 260.
In the case of a cognizable offence, merely on the ground of having power cannot justify arrest without warrant in accordance with law.
After Joginder Kumar's case, the Supreme Court declared in Question No. 54 whether the exercise of the power of arrest was justified or not clearly justified.
Arrest may be justified in a cognizable case in one or the other of the following circumstances:-
- In such cases, serious crimes like murder, dacoity, robbery, rape are involved, in these cases the arrest is necessary to prevent the suspect from escaping and to avoid the legal process.
- Violent conduct is suspected which may lead to further offences.
- It is necessary to prevent the suspect from destroying evidence or tampering with witnesses or warning other suspects not yet arrested.
- If the suspect is a habitual offender who may have committed a common type of or other offence. (Third Report of the National Police Commission).
In addition to the above heinous crimes, if a police officer issues a notice to any person to appear in the police station and not to leave the police station without permission, no arrest shall be made. (The Case of Joginder Kumar (1994) SSC 260).
For offenses on which bail may be granted, no arrest shall be made unless the suspect is absolutely likely to be absconding.
The name tag with the clear identity and designation of the police officer arrested or interrogated must be shown. The details of the police personnel arrested or interrogated will have to be recorded in the register kept at the police station at the same time.
Arrested
As per rules, there will be no coercion while arresting. However, in the case of coercive resistance from being arrested, the least force may be used, however, it shall be ensured that the person being arrested does not inflict visible or non-visible wounds on the body.
The dignity of the person being arrested will be protected. Parading or public performance of the arrested person will not be allowed under any circumstances.
The search shall be conducted while respecting the dignity of the individual, without coercion and aggression, while protecting the right of the individual to privacy. The search of women shall be done with decency only by women. (S 51(2) Cr.P.C.) 55.
Handcuffs and shackles will never be used, it was found in the Supreme Court's Prem Shankar Shukla v. Delhi Administration (1980) 3 S. cc 526) and Citizens of Democracy v State of Assam (1995) 3 s. cc In judgment of 743 the law has been repeatedly interpreted and mandated.
As far as practicable, a woman police officer shall be attached where the person to be arrested is a woman. Women will not be arrested after sunset and before sunrise.
Where children or juveniles are to be arrested, under no circumstances shall there be any use of force or beatings. For this purpose, police officers will involve respectable citizens, so that the child or juvenile is not terrorized and the use of force is minimized.
Where an arrest is made without warrant, the person arrested shall be immediately informed of the reason for the arrest in a language which he/she understands. Again the police can take the help of respected citizens for this purpose if necessary. The reason for the arrest shall be recorded in writing in advance in the police record. Reason in writing shall be shown to the arrested person along with a copy on demand. (5.50(1) Cr.P.C.).
The arrested person may, on a request made by him, demand a friend, relative or any other person known to him to be informed of the truth of his arrest and the place of his detention. Police, the person to whom this information has been given. will record in a register. (The case of Joginder Kumar (Supra).
If a person is arrested for a bailable offence, the police officer shall inform him of his entitlement to be released on bail so that he can arrange for bail. (S 50(2) Cr.P.C.).
In addition to informing the arrested person of the said rights, the police will also inform him of the right of defense in consultation with a lawyer of his choice. He will also be informed that he is entitled to free legal advice at the expense of the State. (Case of D.K.Basu (1997) 1 scc.).
When the arrested person is brought to the police station, he will be given prompt medical aid, if he makes a request in this regard. He will be informed of this right soon. Where the police officer finds that the arrested person is in need of medical help but his condition is such that he is unable to make the request, he shall make prompt arrangements for such help. which shall be recorded in the register at the same time. Request for medical help by a woman will be examined by a registered female doctor only (S. 53 Cr.P.C.).
The place of arrest and detention shall be intimated to the Police, Control Room and District/State Headquarters without any delay by the arresting police officer. A monitoring system will work day and night.
• As soon as a person is arrested, the police officer making the arrest shall enter in the arrest register the details of the existence or not of injury existing on the person's body. If Any injury is found in the body of the arrested person, full particulars of how the injury was caused and other details shall be entered in the register which shall be signed by both the arrested person and the police officer. At the time of release of the arrested person, a certificate signed by the police officer in respect of the above shall be issued to the arrested person.
If the arrested person is kept in police custody under a court order, every 48 hours during his detention, a medical examination shall be conducted by a trained medical officer appointed from a panel of doctors approved by the Director of Health of the concerned State or Union Territory Administration. . On release from police custody, the arrested person shall be subjected to a medical examination and a certificate shall be issued to him stating the existence or non-existence of any injury on his body.
After the arrest
The arrested person shall be produced in the appropriate court within 24 hours of his arrest. (Section 56 and 57 Cr.P.R.).
The arrested person shall be allowed to meet his lawyer at any time during the interrogation.
The inquiry will be conducted at a clearly identifiable place which has been notified for the purpose. This place should be accessible and the place being questioned must be informed to the friends or relatives of the arrested person.
The method of inquiry must be consistent with the right to life, dignity and liberty and the right against oppression and degrading treatment.
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