PRE-TRIAL PROCEDURE: REFORMING LAW OF ARREST

SUBJECT: CODE OF CRIMINAL PROCEDURE TOPIC: PRE-TRIAL PROCEDURE: REFORMING LAW OF ARREST Submitted by: Geeta Devi Bhogal, Prashant Acharya, Uttam Maheshwari and Vasuman Khandelwal (3rd year, National Law School of India University). Submitted on: December 2001. Key words: arrest, individual liberty, custody, police atrocities, guidelines for arrest, and warrant.

Table of Cases

1. Ajit v. State of Assam, 1976 Cri.L.J.1303 2. Amrik Singh v. State of Punjab 2000 Cri. L.J 4035 3. Anil Anantrao Lokhande v. The State of Maharashtra, 1981 Cri.L.J. 125. 4. Associated Provincial Picture House ltd. v. Wednusbury Corn, [1947] 2 AllER 680. 5. Beim v. Goyer, [1966] 4 C.C.C. 9. 6. Brijesh Kumar v. The State, 1996 Cri.L.J. 1536 (Allahabad). 7. C.C.Welfare Council of India v Government of Maharashtra 1995 Cri L.J 4223. 8. Challa Ramkonda Reddy v. State of A.P, AIR 1989 AP 235. 9. Chandrika Prassad v. Hiralal AIR 1924 Pat 312 . 10. Collector of Malabar and another v. Erimmal Ebrahim Hajee, AIR 1957 SC 688. 11. Delhi Judicial Service Association, Tis Hajari Court, Delhi v. State of Gujarat, AIR 1991 SC 2176. 12. Dilavar Hussain S/o Mohammadbhai Laliwala, etc., Appellants v. State of Gujarat and another, Respondents, AIR 1991 S.C 56 13. Directorate of Enforcement v. Deepak Mahajan, AIR 1994 SC 1775. 14. Dr. Ghanshyam Narayan Singh v. State of Bihar, 2001 Cri.L.J. 2811 (Patna). 15. Erram Santosh Reddy and others, Appellants v. State of A.P., Respondent, AIR 1991 S.C 1672 16. Fox, Campbell and Hartlay v. United Kingdom, 182 European Court of Human Rights Reporter (1990). 17. G v. D.P.P., [1989] Crim L.R. 150 18. Gauri Shankar Jha v. State of Bihar and others, AIR 1972 SC 711. 19. Gerstein v. Pugh , 420 U.S. 103 (1975). 20. Guljarsing v. State of Maharashtra, 1976 Cri.L.J. 1563. 21. Holgate Mohammed v. Duke, [1984] 1 ALL ER 1056. 22. In the matter of, Madhu Limaye and others, AIR 1969 SC 1014. 23. Joginder Kumar v. State of Uttar Pradesh, AIR 1994 SC 1349. 24. Kasturilal v. State of U.P, AIR 1965 SC 1309. 25. Khedat Mazdoor Chetna Sangh v. State of Madhya Pradesh, 1995 Cri.L.J. 508 (SC). 26. Kirkpatrick et al. v. Lament [1966] 1 C.C.C. 30. 27. Koechlin v. Waugh and Hamilton, [1957] O.W.N. 245. 28. Kultej Singh v. Circle Inspector of Police, 1992 Cri.L.J. 1173 (Karnataka). 29. Mahendra Hatijivan Luthur v. State of Gujarat, 1999 Cri L.J 3027 30. Manoj Kumar Agrawal v. State of Uttar Pradesh, 1995 Cri.L.J. 647 (Allahabad). 31. Miranada v. Arizona, 384 US 436. 32. Nataraj v. Bangaru AIR 1965 Mad. 212. 33. Neeraj Sharma v. State of Uttar Pradesh, 1993 Cri.L.J. 2266 34. Nila Bati Behara’s case 1993 Cri L.J 2899 35. Om Prakash Dwivedi v. The State, 1996 Cri.L.J. 603 (Allahabad). 36. Poovan v. The Sub-Inspector of Police, Aroor and another, 1993 Cri.L.J. 2183 (Kerala) 37. Pyton v. New York, 445 U.S. 573 (1980). 38. Rahimal (in Jail) v. State of U.P., 1992 Cri.L.J. 3819 (All). 39. Rizwan Ahmed Javed Shaikh and others v. Jammal Patel and others, [2001] 1 LRI 1. 40. Sadaram v. State of Madhya Pradesh, AIR 1974 SC 2294 41. SAHELI women’s resource center v. Comm. Of Police Delhi, AIR 1990 SC 513. 42. Shaaban Bin Hussien and others v. Chong Fook Kam [1969] 3 ALL ER 1626. 43. State of A.P v. Challa Ramakrishna Reddy , AIR 2000 SC 2083. 44. State of A.P. v. S. Eshar Singh and others, AIR 1993 SC 1374 45. State of Madhya Pradesh v. Shyam Sunder Trivedi, 1995 AIR SWC 2793. 46. State of Maharashtra, Complainant v. Sukhdeo Singh and another, Respondents, AIR 1992 2100 47. State of Punjab v. Ajaib Singh AIR 1953 SC 10. 48. State of Punjab v. Kulwant Singh, 1995 Cri.L.J 744 (P&H). 49. State of Rajasthan v. Bharu, 1997 CriLJ. 1237 50. State of Rajasthan v. Purkha Ram, 1997 Cri. LJ 943 51. State of U.P v. Ram Yadav Sagar, 1986 Cri L.J 836. 52. State v. Nallini, 1999 (3) SCALE 241. 53. Tennessee v. Garner, 471 U.S. 1 (1985). 54. Thanakappan v. UOI, 1997 Cri L.J 1938. 55. Udaybhan Shuki v. State of Uttar Pradesh, 1999 Cri.L.J. 274 (Allahabad). 56. United States v. Watson, 46 L.Ed.2d. 598 (1976) 57. V.S.Krishna v. State of U.P 2000 Cri L.J 4498. 58. Vasanthi v. Ch. Jaya Prakasha Rao and others, 1996 Cri.L.J. 4243 (Andhra Pradesh). 59. Vimal Kumar Sharma v. State of Uttar Pradesh, 1995 Cri.L.J. 2335. 60. Yakoob Farid Bhai v. Union of India, 1996 Cri.L.J. 1615.

TABLE OF STATUTES AND CONVENTIONS

1. Civil Procedure Code, 1908. 2. Criminal Procedure Code, 1973. 3. Canadian Charter of Rights and Liberties. 4. European Convention of Human Rights. 5. Narcotic Drugs and Psychotropic Substances, 1985. 6. Prevention of Terrorism Ordinance, 2001. 7. Rome Statute of International Criminal Court. 8. South African Bill of Rights. 9. Terrorist and Disruptive Activities Prevention Act, 1985.

INTRODUCTION There always remains a need to have a balance between the interests of the society and that liberty of the individual. How to achieve this balance is the basic dilemma that is faced while there is implementation of the criminal law. This is required to be followed at every stage of the implementation of the process. These safeguards are provided not only required to be under the Constitution but also under the various procedural laws. There will be an attempt in this paper to find whether there is such protection provided under various laws. One of the processes that imposes a major threat to the liberty of the individual is that of arrest. This is very much required in various cases for the protection of the larger interests of the society; at the same time, the same law of arrest can be misused by the police for the numerous crimes that may be committed behind the bars of the police station, one of them being the police atrocities. This may be a gateway crime. As it will be explained in detail, whether the decision as to arrest has to be taken by the Police Officer or the Judicial Magistrate depends upon whether the offence is cognisable or non-cognisable as classified under the first schedule of Cr.P.C. There arise two problems due to this: • Is the Police Officer expected to know the entire first schedule so as to postpone the discretion in a few cases? • Many social crimes have punishment less then three years, due to this provision there is lack of initiative from the side of the police officials.

Personal liberty is fundamental guarantee; social security is fundamental social need. These two needs to be balanced. How can the probable misuse by the police force be restricted? Are the existing provisions sufficient? Scope, object, rights of the arrestee, consequences of illegal arrest and judicial activism, these would be analysed in this project. Arrest of a person leads to curtailment of his or her liberty. But sometimes an arrest of a person may be necessary in the interest of society at large. So one needs to strike a balance between individual’s liberty and societal interest. Arrest is a very serious issue as it has the effect of curtailing an individual’s liberty. Therefore the power to arrest has to be exercised with care and circumspection. To make sure that the power to arrest is not arbitrary exercised by the police officer Article 22 of the constitution of India and chapter V of criminal procedure code provides direction for safeguards against arbitrary arrest. But the question to be answered here is whether these provisions fulfil the purpose they are enacted for? The Supreme Court has been very vigilant with regard the issue of arrest because if in a democracy a person is not secured against arbitrary curtailment of one’s liberty then the very purpose of democracy is shattered. The Supreme Court has recognized certain right, which are fundamental to the person arrested . For example the right to be informed of the ground for arrest, right to be informed of right to bail, right to be produced before a magistrate without delay, right not to be detained for more than 24 hours without judicial scrutiny, right to consult a legal practitioner, right of an arrested indigent person to free legal aid and to be informed about it. It leads to an irresistible conclusion that the power to arrest a person accused of a cognizable offence is not unfettered and registration of a cognizable offence ipso facto does not necessitate arrest. The question of arrest would not arise until the police officer has reasons to suspect commission of an offence. Normally the Court should not interfere with the process of investigation or the power of the police officer to arrest a person accused of a cognizable offence offences except in rare of the rarest cases and on proof of the fact that the police has not acted reasonably and honestly the court can inquire into the matter. Despite all these safeguards there are innumerable cases of police atrocities. Torture is regarded by the police officer as normal practice to check information regarding crime to extract confession. Police officer who is supposed to be protectors of the civil liberties of citizens themselves violate precious rights of citizens . It is committed under the shield of uniform, and the authority in the four walls of the police station at lock up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern. There has been increasing domain of the police in India, from Social, Political, Games, Religion and the same. The justification that is always forwarded is that of the social justice, but these delicate issues can be determined by the bodies like that of tribunal, Courts and the same. The increasing policing are never questioned until the matters reach the Court. All this reflects on one need and that is of increasing regulations over the use of the power by the police.

Chaperization of the project is as follows: SECTION ONE: THE CONCEPT AND PROCESS OF ARREST An attempt has been made to understand the legislative framework as to the law of arrest. This includes the basic procedure as envisaged in Cr.P.C. as well as other local and special laws. An attempt has been made to understand the similar position in other Jurisdictions.

SECTION TWO: JUDICIAL UNDERSTANDING AND THE EXPANDING REFORMS Statutes apart, there have been guidelines that are issued by the Judiciary, these are also looked into.

SECTION THREE: FIELD RESEARCH Law and decisions apart, this section attempts to look into the practice.

SECTION FOUR: NEED AND SCOPE OF REFORMS In spite of all the laws, there is always a need to improvise, this section aims at the same.

Research Methodology

Aims and Objectives: This project aims to cover the law relating to arrest in India, in comparison with other jurisdictions along with International Conventions. This would facilitate in understanding not only the law that is applicable in India, but also facilitates to incorporate the enhanced manner of dealing with the issue of rights of the arrested persons, along with resolving the problems that are faced by the authorities in implementation. An attempt would be made to look into the decisions that are rendered by the Courts in order to understand the implication of the law, the guidelines if any, and the role that the Judiciary plays in improving the mechanism of the law relating to arrest. The law in the books, Courts is one, and that what is in practice is another. To this end, there would be an attempt to look into the practical aspect of the implementation of the law. There is always a scope for reforms in the law, therefore at the end of the paper, an attempt would be made for the need and scope of the reforms as to the law of arrest, so that it is beneficial not only for the persons so arrested, but also for the authorities which have the duty to protect the society.

Scope and Limitation: The scope of this project is to cover various codes like that of Criminal Procedure Code, International conventions and other local and special laws. Along with this an attempt would be made as to cover the decisional law in detail and comprehensive manner. The scope of this project is extended to look into the guidelines suggested by the judiciary and in what manner they are being implemented. Field research has been undertaken so as to understand the reason for the discrepancy between law in book and practice. It has not been possible for the researchers to cover all the laws that have the provision regarding arrest and a sample of the laws have been taken to understand the concept and the practice. The same applies for the decisions wherein only a few cases have been dealt which have a major impact on the law relating to arrest. Due to practical inconveniences only three officials in the field have been interviewed. At the same time it would be mentioned that the successful effort was made to ensure that such officials were from different positions of responsibilities. Sources of Information: For the purposes of this project both primary and secondary sources of information have been used. The primary sources were the fieldwork and the experiential learning of two of the researchers. The secondary sources that were being utilized were the books, commentaries, reporters, and journals and as well internet based resources.

Mode of Citation- A uniform mode of citation has been used adopted all throughout the project.

Mode of fieldwork - For the purposes of fieldwork, relevant persons in authority were identified and appointment was sought with them. The researchers faced a great difficulty in this regard, as the period of research coincided with the local municipal elections, and the busy schedule of the senior police officers, this became a great hindrance in the researchers effort to meet Mr. V.V Bhaskar & Mr. Gopal Hosur, and Mr. Krishanmurthy all senior policed officers in Karnataka cadre. For the few people with whom an appointment could be sought, a questionnaire was prepared by us, as an enabling guideline for the researches so as to be sure that relevant information is gathered. During the interview an attempt was made to ascertain the knowledge of these officials relating to the procedure, mandatory requirements, judicial guidelines. At the same time the researchers attempted to understand the practical problems that are face by these official, while executing arrest in the interest of the society. These official were kind enough to provide us the relevant data, which the researchers sought from them.

Research Question 1) What is arrest? And how is it different from custody? 2) What are the various provisions as to the law of arrest, in procedural, local and special laws? 3) What are the rights of the person so arrested? 4) What are the judicial guidelines as to arrest and the need for them? 5) Why have the various safeguards not been able to prevent police atrocities? 6) Is there a need for reform in Law of arrest?

Section One: The Concept and process of Arrest

The first question that came to the mind is that why there should be arrest at all? The reasons for it can be enumerated as follows : 1) Securing attendance of accused at the trial: This is when it becomes sure that such attendance cannot be secured by summons or notice. 2) To make investigation effective and fruitful: Arrest facilitates interrogation and at times leads to confession. 3) As a preventive or precautionary measure: In cases where there is imminent danger as to commission of a cognizable offence, or in case of habitual offender. 4) For obtaining correct name or address: This is when the person so arrested refuses to give the correct name and address when asked by the police. 5) For removing obstruction to the police: In his/her duty as the police officer. 6) For taking a person escaped from the police custody: As regards the person who has escaped from lawful custody. 7) For protecting the accused person himself or herself.

It becomes abundantly clear that the arrest should be affected only in cases where there it is absolutely necessary and to have prompt arrest in cases of danger to the society. The reason being that the fundamental right to personal liberty is violated by the due procedure established by law. Another question that comes to the mind is that of use of force while accomplishing the process of arrest, should there be use of force at all? If yes, then how much use of force is justified? It has been an accepted principle that there has to be use of force in cases where there is no voluntary submission and the arrest is necessary. Justification for such use of force is that there is a duty on the police officer towards the society too. 1.1 What is arrest? The word arrest is not defined either in the procedural acts or in the various substantive acts, though section 46 0f the Cr.P.C. lays down the mode of arrest to be effected. Arrest can be defined as “The act of taking the person into custody under the authority of law or by compulsion of another kind and includes that period from the moment he is placed under the restraint up to the time he is brought before an authority competent to order his continuous custody or release him” . In the dictionary of English law, the meaning of arrest is given as following – “The restrain of a person’s liberty in order to compel obedience to the order of a court of Justice, to ensure that a person charged or suspected of a crime may be forthcoming to answer it. To arrest a person is to restrain his liberty through some lawful authority. Arrest is to deprive a person of his liberty by legal authority. Taking, under a real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge. From various definitions incorporated above, it is clear that the word ‘arrest’ when used in its ordinary sense means the apprehension or restraining or the deprivation of one’s liberty. There are three requisites of arrest that can be enumerated as follows : i. Reasonable suspicion of guilt. ii. Nature and gravity of offences. iii. Existence of grounds justifying arrest. According to the Code, there are three manners in which the person can be arrested : a) Submission to the custody by the word or action; b) Touching the body of the person to be arrested; c) Confining the body of arrested person. In one of the cases, House of Lords held that: The question involved was the interpretation of S. 2(4) and 2(6) of the Criminal Law Act, 1967. The subsection 6 confers a right of entry on premises by a constable for the purpose of exercising the power of arrest conferred on him by sub section 4 that reads as follows: ‘Where a constable, with a reasonable cause, suspects that an arrestable offence has been committed, he may arrest without warrant anyone whom he, with reasonable cause, suspects to be guilty of the offence.’

Arrest is a continuing act; it starts with the arrestor taking a person into the custody (by action or words restraining him from moving anywhere beyond the arrestor’s control), and it continues until the person so restrained is either released from custody or having been bought before a magistrate, is remanded in custody or having been, remanded in custody by the magistrates judicial act. Strictly speaking, the arrestor may change form time to time during a continuous period of custody since the arrestor is a person who at any particular time is preventing the arrested person from moving himself from the custody. Secondly, it should be noted that the mere act of taking a person into custody does not constitute an arrest unless that person knows, either at time when he first taken into custody or as soon thereafter as it is reasonably practicable to inform him, on what charges or on suspicion of what offence he is being arrested. S. 2(4) of the act makes it a condition precedent to a constable having any power lawfully to arrest a person without warrant that he should have a reasonable cause to suspect that person to be guilty of the arrestable offence in respect of which the arrest is been made. The wording of the subsection under which he acted is may arrest without warrant, this leaves with him an executive discretion whether to arrest her or not.

The exercise of such discretion must be a real exercise of the discretion. The first of the principles is that the discretion must be exercised in good faith. The other side of the coin is whether the investigation, although diligently pursued, fails to produce prima facie proof which must be inform of an evidence that would be admissible in a court of law. When the police have reached a conclusion that prima facie proof of the arrested person’s guilt is unlikely to be discovered by further inquiries of him or other potential witness, it is their duty to release him from custody unconditionally. There is inevitably the potentiality of the conflict between public interest in preserving the liberty of the individual and the public interest in the detection of crime and bringing to justice those who committed it.

Any procedure as to arrest should fulfil the following principles, as formal legality is not sufficient to justify intrusions into the human liberty : a) Legality: Law should fix the procedures; the limitations and restrictions applicable should exclude arbitrary executive action. Restriction on individual liberty should be under the due procedure of law. b) Protection of persons caught in the criminal process: There should be a fundamental respect for human dignity; there should be protection against the possibility of torture or degrading treatment under the custody. c) Just system must ensure quality of criminal process. There should be a balance between the societal interests and individual liberty.

Suspicion arises at or near the starting point of the investigation of which obtaining the prima facie proof is the end. When such proof has been obtained, the police case is complete; it s ready for trail and passes on to the next stage. It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if the arrest before it was forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion. In exercise many factors have to be considered besides the strength of the case. The possibility of escape, the prevention of further crime and obstruction of police enquiry are examples of those factors with which all judges who have had to grant or refuse bail are familiar.

Suspicion in its ordinary meaning is a state of conjecture or sunrise where proof is lacking. “I suspect but I cannot prove”. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trail and passes on to its next stage.

1. 2 Custody v. Arrest Arrest is one of the modes under which a person can be brought to the custody of the police, there are various other means and reasons because of which a person may be brought to the custody of the police. This includes the reasons as to interrogation and the same.
2. 3 The procedure as to arrest The next question that comes to mind as to who has the take the decision as to arrest the person. There is a fundamental dilemma that has to be balanced while taking the decision as to arrest; this question is about the restraint on the individual liberty due to the arrest, and the danger to the society if the liberty of such individual is not curtailed. Another question that may arise as to why so much importance has to be given to the protection of human rights at the pre-trail procedure? The main reason may be that when a wrong is done to the such arrested person at the beginning of the process, cannot be corrected at any stage whatsoever as this is the basis of the whole trial. The Magistrate or the police officer either takes the decision of arrest ; for the Magistrate the decision is based on the information that is provided to him. Such information should be reasonable in nature giving a clear indication as to the commission of the offence. Such reasonableness depends from the circumstances to circumstances. After this the Magistrate issues a “warrant of arrest” that is addressed to the police officer or some other person who is specially named and commanding him to arrest the body of the person named in the warrant. A warrant of arrest is a must in cases where an arrest has to be made of a person who has committed a non-cognisable offence. The Magistrate issues warrant after taking cognisance of the offence. Thus, a police officer cannot arrest a person for any non-cognisable offence unless the warrant has been issued.

Cognisable: investigation or arrest by police officer without any order from the Judicial Magistrate. Offences

Non-cognisable: No investigation or arrest without any order from Judicial Magistrate.

There remains a fundamental question to this categorisation according to which the discretion has to be used either by the police officer or the Magistrate; it is that does the police officer knows the full first schedule as to decide whether the offence is cognisable or non-cognisable in nature. This does not mean that there cannot be arrest without the warrant; this can be either before the commission of the crime or after the commission. This decision has to be based on certain premises . In such cases the investigating agency is given the power to arrest the person, though there is judicial scrutiny of the arrest so made. These may be specified as follows :

• Any arrested person has to be brought before the Magistrate within 24 hours of the arrest. • Reports of the arrest have to be sent to the Magistrate. • If any Magistrate receives any complaint about such an arrest, he should make an order as to call the police officer and ask as to why such an arrested person was not presented to the Court? Police officer can also arrest any person who has committed any offence that is cognisable in nature. An understanding of Section 47, Cr.P.C. would indicate that if police officer acting on a warrant of arrest can if required search a place or premises for the purpose of carrying out that arrest.

After Arrest Procedures 1) Search of arrested person – whenever a person who is arrested cannot be legally admitted bail, or can not furnish bail, a police officer may search the person, and keep in safe custody all articles found in his possession 2) Seizure of offensive weapons – If during search any offensive weapons are recovered, it shall be so seized and shall be delivered to the authority before whom the arrested person is to be produced. 3) Medical examination – If the nature of offence requires medical examination then a police officer not below the rank of sub-inspector can insist so.

1. 4 Police atrocities The word torture has not been defined in the constitution or in any other penal law. Common sensically torture of a human being by another is essentially an instrument to impose the will of the song over the weak by suffering. Art. 9(5) of the International Convention on Civil and Political Rights, 1966 provides that “any person who has been the victim of unlawful arrest or detention shall have enforceable right to compensation” Article 5 of the universal declaration of human rights in1948 stipulates, “No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment” despite its pious declaration, crimes, continues.
2. 5 Protections and Safeguards The Cr.P.C., Constitution and other sources extend many rights to the arrested person at many stages. Many jurisdictions around the world have ‘constitutionalised’ the protection given to the arrested person for safeguarding his or her individual liberty and confirming that procedure laid down by law follows after the initial arrest proceedings. ‘Constitutionalisation’ refers to the process of using general principles of criminal law, such as right to be informed about the grounds of arrest, to give extent to charter rights. It also refers to the converse process of adopting constitutional rights and freedoms as doctrinal principle of the general part of criminal law. The question to be addresses with the law of arrest is to what extent basic principles of Criminal law are ought to be elevated to constitutional status. On the other hand, it surely cannot be the case that the constitution can be used to freeze the whole of the common law and other statutory law of criminal procedure in a constitutional mould that cannot be cracked by legislative reform. However, before entering into such a debate, let us see what other rights does the statute provides:
3. Rights to be informed about the grounds of arrest. In every case of arrest with or without warrant the person arresting shall communicate to the arrested person, without delay, the grounds for his arrest. This is a precious right and has been recognised as one of the fundamental rights. In an arrest without warrant by a police officer it entail a duty on him with regard to the communication of the particulars of the offence to the arrested person. . It has been held that the duty is mandatory and ought not to be treated lightly by the police officer in curtailing the liberty of the citizens . Timely information about the grounds of arrest serves the arrested person in many ways. It gives him or her an opportunity to remove any mistakes, misapprehension or misunderstanding, if any in the mind of the arresting authority; it also enables him to apply for bail, or for writ of habeas corpus, or to make other expeditious arrangements for his defence. Section 10(a) of the Canadian Charter of Rights and Freedom, read as; Everyone has the right on arrest or detention a) To be informed promptly of the reasons therefore, The rights in S. 10 apply when a person is arrested or detain. They ensure that people under arrest have a chance to challenge the lawfulness of their arrest. The police must tell them immediately of the reasons for the arrest. Section 35(1)e of the South African Constitution reads as : Everyone who is arrested for allegedly committing an offence has the right at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released. Article 5 of the European Convention on Human Rights extends the same privilege to the arrested person. The object of Art. 5 is to guarantee liberty of the person, and in particular to provide guarantee against arbitrary arrest and or detention. It seeks to achieve this object by excluding any forms of arrest or detention without lawful authority, and proper judicial control.

2) Right to be informed of right to bail Every police officer arresting without a warrant any person other than a person accused of a non-bailable offence, is required to inform the person arrested that he or she is entitled to be released on bail and he may arrange for sureties on his or her behalf.

3) Rights to be produced before a magistrate without delay In case of every arrest, whether the arrest has been made with or without a warrant, the person arresting is required, without unnecessary delay and subject to the provisions regarding bail, to produce the arrested person before the magistrate or court having jurisdiction in the case. Article 5 (1) c and Article 5(3) of the ECHR also provide for such right. Section 35 (1) d of the South African Constitution provide for the same, however they give the arresting authority a time not more than 48 hours to be produced before the competent Court. If the special legislation provides for the report to be made to the government within 10 days even after being presented before the Magistrate, failing to file the report would make the arrest illegal. 4) Right of not to be detained for more than 24 hours without judicial scrutiny In case of every arrest, the person making the arrest is required produce the arrested person without unnecessary delay before the magistrate; and it has been categorically provided that such a delay in no case shall delay in no case shall exceed 24 hours exclusive of the time necessary from the journey of the place of arrest to the magistrates court. The right has also been incorporated as a fundamental right in the Indian Constitution. This right has been created with a view (i) to prevent arrest and detention for the purpose of extracting confession, or as a means of compelling people to give information.; (ii) to prevent police stations being used as though they were prisons;(iii) to afford an early recourse to a judicial officer independent of police or executive on all questions of bail or discharge. 4) Right to consult a legal practitioner Both the Indian Constitution and the provisions of the code recognize the right of every arrested person to consult a legal practitioner of his or her choice. The right begins from the moment of the arrest. The consultation with the lawyer might be in the presence of the police officer but not within his hearing. This is an important right, as arrest can a be a complicated matter of law and facts and it might be bit difficult for the person arrested in the circumstances that he or she is facing or otherwise, to understand the complexities involved. It is true even more in the case of poor and underprivileged people. The Prevention of Terrorism Ordinance, 2001 (no. 9 of 2001) also recognizes this right. Section 35 (2) b and C of the Constitution of South Africa provide for the same right, including that incase if the detained person is unable to arrange for the legal practitioner for the reasons of unaffordable expenses or some other reason, the state will provide the legal practitioner. This right is afforded in Canada also. There remains a practical problem; on the one hand India has signed many declarations as to the point that there should be no atrocities against such arrested persons. The main questions remain, are they really implemented? Mere signing to the UN Declaration does not reduce the police atrocities by themselves, they need to be enforced . For this there arises a need to frame guidelines, this has been done by the Judiciary and would be dealt in the next section of the Project.

1. 6 Impact of illegal arrest Illegal arrest does not have any impact on the question as to whether there was any guilt on the part of such accused person. Due to the same reason, trial is not vitiated due to illegal arrest, and it is held that the custody thereon is legal under the judicial pronouncement. The Court can still take cognisance of the offence.
2. 7 Narcotics and Psychotropic Substances Act, 1985 Is the procedure for arrest under NDPS mandatory or directory? The enactment empowers the Special Magistrates and other empowered officers as competent to issue warrants for arrest and search & seizure. The only requirement is that such issuing authority should be satisfied that there are sufficient grounds for the arrest of such a person. Under S.42 of the NDPS act, a Sub Inspector or an Inspector is designated authorities who can make arrest. For launching the prosecution or for initiating proceedings under this act, the authority doing so must have a clear power to d so. Chapter five specifically provides only for a specific officer to authorise and empower a subordinate to arrest and search and if such officers has reasons to believe the reasons for committing the offence after putting it down in writing. However, there are numerous other designated authorities like Para military forces, excise office, Customs etc.
3. 8 Terrorists and Disruptive Activities Act, 1985 Under TADA, similar procedure as Cr.P.C. is to be followed. The courts however had cautioned that TADA, being a special act, arrest under it should be made only in exceptional circumstances. Legislative intention for enacting the TADA was to confine the applicability of the Act to secessionist or insurgency activities against the State and not to ordinary crimes for which provisions exist. It does not matter if there is a delay between arresting a person and filling a charge sheet under TADA. Under Section 12(4) of the TADA Act a Designated Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session, albeit subject to the other provisions of the Act, and therefore the same guidelines and procedure as under Chapter XVII of the court can be followed. If a person is arrested and convicted along with TADA, under the provisions of any penal code, it is open for the designated court to award sentences as in provided by penal code. If the accused is charge sheeted under TADA, but becomes the duty of the prosecution to prove all charges beyond all reasonable doubt.

SECTION TWO: JUDICIAL UNDERSTANDING AND THE EXPANDING REFORMS

After a brief overview of the statutes and the guidelines that are provided under them, it becomes equally important to look into the fact how they are interpreted, and implemented by the Judiciary. This section deals with the various decisions that lay the guidelines as to arrest and the interpretation that is given by the Judiciary.

1. 1 Guidelines as to arrest The following guidelines has been laid by the Supreme Court as to the process of arrest: I. Inform the arrested person as to the grounds of his arrest. As and when the person is arrested he should be informed as to the grounds of his arrest so that he may take up a reasonable defence about the same. There is a duty on the part of the arresting authority to do the same. II. Present before the Magistrate within 24 hours: In case the arrested person is not presented before the Magistrate within 24 hours, it would be considered as illegal arrest. III. When the police arrest a person, the police will govern intimation of the fact of such arrest to legal aid cell of the district concerned. III. Whenever any illegal detention is brought to the notice of sessions judge of the district by any person, the session judge of the district shall make a surprise visit of the police lock-up to find out whether any person is detained in the police lock up without being produced before the concerned Magistrate in contravention of section 57 of Cr.P.C and section 55 of the Cr.P.C. IV. As far as the identification is concerned: (i) At the time of arrest of any person for a crime, while noting his ID marks, photos must be taken and made of records. (ii) Such photographs should be submitted to court while filing charge sheet. (iii) The same procedure should be followed while filing appeals (iv) Concerned arresting officer who arrested the accused should authenticate the photograph taken. (v) In all sessions case when warrant of arrest is issued the photographs and marks to be crossed checked. . 2.1.1 How can a Magistrate enforce the guidelines? To lay down the guidelines is one thing, and it is totally different to have the policies and guidelines implemented by the Judiciary. The Magistrate can use the following tools to get the guidelines by the Court implemented in a more effective manner : • When a complaint is made to the Magistrate that any person has been in the custody for more than 24 hours, then, he shall call upon the concerned police officer to state in affidavit whether the allegations made are true? • Police officer has to state whether he had arrested any person or not? And where is the arrested person at the time of filing of the affidavit? • Such affidavit be filed within two days, as the police officer is aware of the fact where the arrested person is. • Such arrested person should be presented before the Magistrate within 24 hours, and the Magistrate should then take appropriate action against the arrested person. • If no such affidavit is filed, then it is to be regarded as Contempt of Court, and such officer is guilty of Criminal Contempt of Court.
2. 1.2 Civil Arrest Civil arrest can be executed on the basis of the special powers that are conferred on the concerned officers in that special legislation. Even under this, the basic guidelines as to arrest have to be followed. This may vary from non-payment of the taxes, even after repeated reminders. Order 38, Code of Civil Procedure deals with Arrest before Judgments in Civil cases. The object underlying these provisions is to enable the plaintiff to realize the amount of decree if one is eventually passed in his or her favour and to prevent any attempt on the part of the defendant to defeat the execution of such decrees passed against him.

Grounds Where at any stage of the suit, the court is satisfied, either by affidavit or otherwise, (a) that the defendant with the intent to delay the plaintiff, or to avoid any process of the court, or to obstruct or to delay the execution of any decree that may be passed against him or her, (i) has abscond or left the local limits of the jurisdiction of the court, or (ii) is about to abscond or to leave the local limits of the jurisdiction of the court or (iii) had disposed of or removed from the local limits of the jurisdiction of the court his or her property or any part thereof, or (b) that the defendant is about to leave under the circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may issue a warrant to arrest the defendant and bring him before the court to show cause why he should not furnish security for his appearance. The defendant shall not, however be, arrested if he or she pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiffs claim.

Principles The plaintiff may make an application for arrest at any time after the plaint is presented, even before the service of summons is effected on the defendant. However, arrest is an extraordinary power and needs to be exercised with great care and caution. The law commission in its consultative paper on law of arrest concluded that the power of arrest in civil cases is widely being misused. This power is being resorted to on the basis of a false allegation against a party to a civil dispute at the instance of his opponent. The court must be satisfied about the following conditions: 1. The plaintiff’s suit must be bona fide and his or her cause of action must be prima facie unimpeachable subject to his or her proving the allegation in the plaint; and 2. The court must have reason to believe on adequate material that unless this extraordinary power is exercised there is a real danger that the defendant will remove himself, his or her property from the ambit of the power of the court. This power is very vast and discretionary. Moreover there is no comprehensive judicial guideline regarding the exercise of this power. This is very dangerous for the personal liberty of an individual because the arrested person does not have the protection of Art. 22 of the Constitution since the charge is not of criminal or quasi-criminal nature.

1. 2 Duty to arrest There is no obligation on the part of the police officer to arrest immediately. Arrest of a person should not be a mechanical process. The legal obligation is that the power of arrest must be judiciously exercised, meaning that the Police Officer must be satisfied that the complaint made to him or that the information received by him is credible and that the person who is to be arrested is concerned with a cognizable offence and there is a legal basis to arrest, or in the cases where the Magistrate issues the warrant. If such arrest is not made, it is considered as violation to the procedure. This is the duty of the police officer towards the society, as he has to always maintain a balance between the society and the liberty of the individual. This is followed by the Judicial scrutiny as soon as possible, as a matter of right of the arrested person.
2. 2.1 Arrest of a Judicial Officer In case of arrest of the Judicial officer, there are more safeguards that are to be provided to the arrested person. In one of the cases the Chief Judicial Magistrate was arrested, handcuffed and assaulted. The main reason of the arrest was constant conflict between the CJM and the police officer of that area. The Judiciary took serious notice of this aspect, as CJM is head of the Judiciary in the town, it is in general interests of the public that their faith in the sub-ordinate Judiciary is maintained. If this were what is done to the CJM, then it would harm the whole structure of the social order. Thus it was considered as the assault on the Judiciary itself.
3. 3 Arrests and Custody The fact of arrest has to be proved by stating all the facts about the arrest, this includes not only the announcement as to the point that arrest has been made, but also to the point about the time and the place of the arrest. If the arrest is not proved then the arrested person becomes entitled to acquittal. There always remains a need to differentiate between the custody and arrest, as any person may be taken into custody or arrested, for the person the consequence remains the same, curtailment of individual liberty. Question arises as to whether the custody would be rendered illegal on the fact that the person so in custody was not presented before the Magistrate within 24 hours? The person so arrested is entitled to compensation due to illegal arrest. It has been held that it is not the case and due to delay the custody is not rendered illegal.
4. 4 Arrest without warrant Arrest without warrant has been provided by the Code. The conditions when the same can be justified are as follows : • Non-bailable and Cognizable offences. • A reasonable apprehension that the crime has been committed, for which there are provisions that allow arrest without warrant. • Any person, who, in the presence of such officer, has committed a non-cognisable offence and refuses to give his true name and residential address. • Any person reasonably suspected to be concerned with any crime carried out outside India, which if committee din India would be punishable as an offence for which he is he is liable to be apprehended. • If a requisition to arrest warrant is made by another police officer. B) Any private person may arrest without a warrant. - • Any person committing a non-bailable and cognisable offence within his presence.

In all these circumstances, there is gravity of the offence that makes it necessary to have the person arrested immediately without warrant . There are many cases where the person is taken into the custody for the purposes of interrogation, but are detained for more then 24 hours without being presented in front of the Magistrate.

1. 5 Action against the arresting officer in case of illegal arrest There always remains a requirement to restraint the arresting officers from illegal arrest, or illegal detention. One of the ways that have been argued is that of action against the concerned arresting officer in from of departmental enquiry, or that of giving compensation to illegally arrested person . It has been considered in Canada, that in case there is an arrest where the grounds of arrest were not communicated to the person so arrested, it would be considered as illegal arrest. There has been hesitation in taking this step, as there remains a need for the protection for the persons so authorised to arrest. There are many safeguards that are provided before an action can be initiated against the police officer. There has to be a balance between the individual freedom and the duty that is cast on the police officer in the form of maintenance of public order, acting under official capacity and that too under a complaint. It is submitted that all these duties on the part of the police officer does not relieve him for the justification of illegal arrest. In view of the fact there are numerous duties that are cast upon the police officer, there are certain minimum duties that are imposed on the police officers. An independent enquiry can be set up to investigate upon the violations of the rules by the arresting authorities.
2. 6 Arrest under NDPS Like the requirements that are present for arrest under Cr.P.C., they also need to be followed in cases of arrest being made under the special legislations , the main difference is that of the persons that are empowered to arrest. The power to arrest and execute the warrant of arrest is as specified under the said Act. Along with the specific officers that are mentioned in the Act, any other officer of the same rank can also make an arrest. Such officer can exercise this power only after he has recorded the reasons in writing as to the reason of the arrest.
3. 7 Police atrocities As it has been stated in the first section the word torture has not been defined in the constitution or in any other penal law. Despite various judgements talking about the right of an arrested person the reality remains that all these laws are violated when it comes to the atrocities perpetuated by the police on the person arrested. There have been innumerable cases where the arrested person have been beaten to death by the police. The Sate is held vicariously liable for the atrocities by the police. As per law there cannot be arrest of a women after sunset and before sunrise but this remain the law only in the text and not in reality . The researcher of this project would like to narrate a personal experience where the one of the researchers was arrested by the police after sun set and was detained in the police station with many others girls like her for about 4-5 hours in the police station despite the laws that no women shall be arrested after sun set and before sun rise. This does not mean that this law is not followed. It is followed but only in cases where the person to be arrested is a public celebrity or a political leader for example Ms. Jayalalitha. The judges have been very much concerned about the increasing cases of the police atrocities. It has been held that by the Court that: “Before we close, we would like to impress upon the government the need to amend the law appropriately so that policemen who commit atrocities on person who are in their custody are not allowed to escape by reason of paucity or absence of evidence. Police officer alone, and none else, remain silent in such situation and when they choose to speak, they put their can give evidence as regards the circumstances in which a person in their. Bound by the ties of a kind of brotherhood, they often prefer to own gloss upon facts and pervert the truth. The result is that persons, on whom the policemen in the sanctum sanctorum of the police station perpetrate atrocities, are left without any evidence to prove who the offenders are. The law as to the burden of proof in such cases may be re-examined by the legislature so that handmaids of the law and orders do not use their authority and opportunity for oppressing the innocent citizens who look to them protection”.
4. 8 Law of arrest in the United States- guidelines as provided by US courts. Miranda v. State Of Arizona – This case is used here to set up a basis of understanding of US law, and it constitutional providences. This case is regarding certain cases, where the arrested person as questioned in alone by the police, which led to certain statements and subsequent conviction. According to the US supreme Court, This cases raises questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. This case basically examines the fifth and sixth constitutional amendments, which protect a person from self-incriminating himself (a guarantees provided by Indian Constitution also), and guarantees a right to fair procedure. The court went on to clarify its position by saying, “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” The court said it is important to understand in custody procedure, that is to say what happens in custody. Prior to arrest in the evidence gathering stage the person is held incommunicado, in police dominated atmosphere. In certain cases the police might use physical means to extract atmosphere, but more importantly is the psychological atmosphere created, leading to self-incriminating statements.

The court went on to talk about pre-trial privileges of the accused as a necessary tool for a subsequent fair trail. After examination of different cases, which were, clubbed together the Supreme Court of the US, cam out with the following warning of rights, now popularly known as Miranda Rights.

The fourth amendment to the United States Constitution, to speak in general terms, provide for certain private rights, such as against unreasonable search and seizure. A continuous debate in the US courts is whether a warrant less arrest is valid and is it voilative of the fourth amendment. Under various penal statues, powers given to various agencies like the Marshals, Federal Bureau of Investigation, Drugs Enforcement agency, to name a few, have been given power to arrest without a warrant if a probable cause to do so exist. The case of United States v, Watson is the law of the land, in this regard now. In this case the legality of warrant less arrest as to the Fourth Amendment was questioned. It was held in this case that the various laws in the United States provide for such an arrest if there exist a probable cause, and that it is not detrimental either to the provisions of the fourth amendment or the common law. But the court questioned the occasions in which probable cause, does not allow obtaining the warrant. After this decision there exist two primary incentives for the police to obtain arrest warrants. First, the courts in this case suggested, that a stronger showing of probability cause might be needed to justify the warrant less arrest, than would be in cases where the warrant has been obtained. Also in the case of Tennessee v. Garner, it was ruled that pursuant to the fourths amendment that deadly force may not be used to prevent the escape of a felon unless it is necessary to prevent the escape and the officer has a probable cause to believe that the suspect poses a significant threat pf death or serious physical injury to the officer or others. Even though in the previous discussed case of Watson, it was held by the Supreme Court that no warrant might be required in certain cases, however, after the warrant less arrest is made, the arrestee us entitled to screening by a magistrate. In the case of Gerstein v. Pugh,, the US Supreme Court said, “Maximum protection of individual rights could be assured by requiring a magistrates review of the factual justification prior to a case.” “Yet a special comprise is made in cases where a probable cause to arrest exist” “But, once the suspect is in custody, however, the reasons that justify the dispensing of magistrates neutrality judgment evaporates.” “The consequence of prolonged detention may be more serious than the interference occasioned by arrest… Pretrial arrest creates situations which result in restraint of liberty, and therefore when stakes are high, the presences of a detached neutral judgment is necessary,” and this entails that the accuse be produced before the magistrate. “ Whatever procedure a state may adopt (for arrest), it must provide a fair and reliable determination of probable cause as a condition for any pre-trial restraint of liberty, and this determination must be made by a judicial officer either before pr promptly after the arrest.” Watson and Gerestein cases, as decided by the Supreme Court, left open the question whether; a warrant is necessary to enter a home to make an arrest. This issue was dealt in the case of Pyton v. New York, in which the court described a home as a private sphere, and held that to enter the home of a suspect, to make an arrest, even if probable cause exist, a warrant is required.. Therefore from the above discussion, the following salient features as to arrest exist under the American Law: • Though the arresting authority has the power to make a warrant less arrest, this power is to be used judiciously. It should be first attempted to get a warrant for arrest, and if and only if, probable cause exist, in which warrant can not be obtained, should arrest be made, the probable cause of which is reviewable by the court. • A person being arrested is to be read out his rights, which have come to be known as Miranda rights. • Deadly force may not be used to prevent the escape of a felon unless it is necessary to prevent the escape and the officer has a probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others • A person arrested should be brought before the magistrate as soon as possible

Section Three: Field Research

For the discrepancies experienced between law existing in the books and practice, the researcher undertook to carry out field research. There have always been some differences between the law of arrest as it exists in the text and what is actually followed in practice. Therefore, it was an attempt to understand the practical problems faced by the police officers in adhering to the law of arrest in carrying out day-to-day duties. Thereby trying to find out the reasons for the discrepancies, and is there any way to reconcile them. This was because in a society where rule of law is supreme, it is required that the laws existing in the rulebook should be strictly complied with. There should not be two facets or dimension of laws, it will be inherently dangerous in a democratic society and one confirming to the rule of law.

I

To full fill the above-mentioned object, the researchers undertook to interview police officers of both senior and junior police ranks. One of the first persons we met was Mr. T.D. Durgaya, Inspector of Police and Officer in Charge (Station House officer) of Chandra Layout Police Station, Bangalore. We started of the discussion by asking him as to how does he receive information about cognisable offences and the procedure that is followed thereafter following up with the information. The information is usually received by the telephone call or personal intimation. Thereafter, the police proceeds to the spot of the offence to veracity of such information. The spot of the offence is also helpful in ascertaining the nature of the offence. The particular of the offence like the place, the police personnel concerned enters date, time and nature and any other specifications into the police diary. In the case of non-cognizable offences, the complaint is forwarded by the concerned magistrate to the police station to investigate the same. In case of murder, culpable homicide, sexual offences and other offences of such nature, the identity of the victim is sought to be ascertained. Then the investigating officer concerned tries to find out about the particular about the offences from the witnesses. The problem faced by the police is that normally, people do not come forward to cooperate with the police. No person is ready to give any kind of information to the police regarding that offence committed even when they have knowledge about it. This is a big hindrance in the investigation of the offence. After the necessary preliminary investigation, if the police officer comes to conclusion that there is sufficient ground for the arrest to be made, then the suspected accused is arrested. The basis of the arrest is on the nature of the offence, the evidence that is available on the spot of the offence. There are no guidelines as to on what material available before the police the officer concerned can build a reasonable suspicion so as to lead to the law of arrest. It is generally on the discretion of the officer concerned. After the decision has been taken to arrest the person, the police takes a decision on the necessary use of physical force to arrest a person. In case of a repeated offender, more police force is needed. Once the arrest is made, the arrested person is bought to the lock up at the police station. The inspector insisted on the fact the: 1. The relative or the friends of the person arrested are informed about the arrest. 2. The arrested person is then informed of his legal right in the case of the arrest, which includes the right to be produced before the magistrate in 24 hours, the right to legal counsel. 3. The arrested person is given proper meals. The Police officer repeatedly insisted on the fact that under no circumstances whatsoever, an arrested person is kept in custody for more than 24 hours without producing him before the magistrate. He also insisted that the above-mentioned rights are never ever compromised under any circumstances. A PSR is prepared. It is a document of many columns. In this document, all relevant details regarding the when, where and who was arrested; the belongings from the persons possession. However, the PSR is only for the police records and no copy is issued to the accused, lawyer or relative or the family members. A police card is prepared and sent to the District Collector to maintain some kind of supervision. BAIL bond The police officer is insisted that no ‘atrocities’ are committed on the arrested person under any circumstances. He said that an effective judicial supervision is carried out by Habeas Corpus petition under the writ jurisdiction of the High Court. He further added that during the training programmes the police are made aware of the rights of the arrested person and the law relating to arrest. The guidelines that are formed by Supreme Court, National Human Rights Commission, and are circulated among the police stations by the Director General.

Problems faced by the police Since the emphasis was on to find out the reasons why and under what circumstances it is difficult for a police official to comply with the law of arrest. We asked the Inspector to tell us the specific problems faced by them in compliance with the law of arrest. He told us about the following problems: 1. No person voluntarily comes forward to assist the police. There is a general attitude of non-cooperation with the police. This is a hindrance at every stage that is investigation, trial, witnesses etc. 2. In the case of hardcore criminal, the police officer felt that 24 hours time in custody is too less to enquire into the matter. The law does not differentiate between the hardcore criminal and the first time offender. He said that the law should differentiate between a hardcore criminal and a first time offender. 3. He said that the police stations are not properly equipped and there is a general shortage of equipment and human resources. 4. He said that in case of hard-core criminal, some reasonable physical force should be allowed. However, he did not suggest a criterion for differentiating between a hard-core criminal and a first time offender.

II

On 13 November a visit to Mr. Sri Kumar was made. Mr. Sri Kumar is a senior Police Officer who has held various posts in the Karnataka government. Mr. Sri Kumar is presently the Chairperson of the Police housing board. Mr. Kumar started by telling us the problems faced by police officers while making arrest. He said that there is a general impression that the person in authority is misusing his position but this is not so He said that in Karnataka, it is usually the S.H.O, who is of the rank of Inspector, or, the investigation officer who makes the arrest. The police are under pressure to arrest. The general perception among the public is that if no arrest is made, the no progress is being carried on. He said that he realizes that arrest is not necessary in every case, but he said that if they do not arrest the public thinks that there are in glove in hands with those who are perceived to be the perpetrators of the crime. He citied an instance, he said suppose a women dies of burn injuries, and though there might not be sufficient evidence to implicate the husband or his family, he shall be under pressure from women organization and other members f the pubic to arrest. Therefore he said that as a general rule, in Karnataka, in all cases of cognisable offence where arrest is possible, arrest is made by the police. In India, he said, the police has to produce the arrested person in front of the magistrate within 24 hours. In United Kingdom the period for the same is 48 hours and in the United States it is 72 hours. He said that24 hours is not a sufficient time, and said also that the period of remand, under which the suspect is held for investigation, should be increased. He cited a need for this. According to him, that in the custody often an accused, in ‘fear of’ torture or on in own accord in a sudden burst of good consciousness, often gives evidence to the police or gives further information. This further information is sometimes necessary, and such information or evidence can only be achieved in Police custody. In this regard he felt that POTO was a much-needed legislation, and that it would strengthen the police in fighting the terrorist. POTO makes provisions for monitoring of electronic mails, of telephones and other such provisions. POTO also increase the period under which an accused can be held for police investigation. This he said would aid the police in fighting terrorist activities better. There might be abuses under the law sometimes, but the problem might not be with the law, are they not abuses the IPC and Cr.P.C also; the solution is not to do away with the law but to plug the loopholes in the law.

When told about various Supreme Court to the nature that TADA and other special legislation, which call for enhanced punishment, such provisions should be used only at the last moment, he said that is generally the endeavor; but, according to him, the person writes the F.I.R is a constable or a head-constable, who files the report on the basis of averments made in the report. How to de we expect him to know, what lie to apply or not, he uses the law which he thinks fit. And anyway there are magistrates, and often when cases filed under special legislation go to them, they punish under those legislation only, and it is only at the Supreme Court level that the situation changes. He cited the case of Rajiv Gandhi Assassination. He said that in that case all the accused where held guilty under TADA, by the special court, and it was only in the Supreme court that the cases were decide differently , so he said how do we expect the constable/head-constable making the report to know. He also said that Supreme Court decisions should be enforceable. The Supreme court says that while arresting, police should not handcuff the person being arrested, but he said, that often these persons are very dangerous and might hide things concealed in their stuff. According to him throughout India 1,111 police personal have died while making arrest, in the line of duty. Another instance he gave us was about the recent smoking ban, he asked us that suppose a policeman sees a person smoking, what is that we expect of him? Also there are some other practical problems also. For instance he said under the NDPS Act. The person getting arrested so wants, he would have to be arrested in front of a gazetted officer only. Now if a police officer is making an arrest at 10 O’clock at night, from where will he find a gazetted officer? Also in respect of force he gave the Rodney King example. In that he said that the police officer making the arrest misconstrued the action of Rodney King. He said you couldn’t expect policeman not t take action in cases where reasonable fears exist. When asked how are HC and SC guidelines regarding various procedures given, and whether any police training exercise is carried out or not, he said that regular class room training is given to constables. All direction form the courts are received at the Director General of Police’s office, and from there in form of orders and daily orders. Mr Kumar also suggested some reforms. He said in cases of bailable offences no arrest should be made by the police, and in cases of non-bailable cognizable offences no bail, not even by magistrate should be given. He said that the office of the public prosecutor should be once again be brought under the police. This was the position before the 1973 amendment of the Cr.P.C and this should be the case now. He said at various level, right from filling an FIR to investigation to filling of charge sheet, legal guidance is necessary, and this can only be done if there is a dedicated office under the police, otherwise how do you expect a police officer with just an year of police training to know what the various procedures are. In respect to plea-bargaining he said that it can be there, but such powers should not be with the police but with the Judiciary. He said but plea-bargaining should be done very cautiously.

III N.Suresh Babu, Research Officer, Central Prison, Bangalore.

Following questions were posed before him, and the responses accordingly: 1. How are the prisoners shifted to jails? The prisoners are sent to the judicial custody after they are presented before the Magistrate, and such arrested person has to be presented before the Magistrate within 24 hours. 2. Are the prisoners handcuffed? Officially they are not handcuffed. There is a reason to this is, it is that the general public is feared of the police officers, and they easily submit to the police. 3. Are there any training provisions for the police to be aware of the guidelines that are framed by the Judiciary? They are under the senior officers, thus the question about the training was skipped. At the senior level, the guidelines are sent to the specific department through the Government, and then it flows down to the sub-ordinate officers. 4. Are the prisoners told about their rights as arrested person, or when they were arrested? As the prisoners come to the prisons under the judicial mandate, there is no requirement for the same. 5. Is there any Judicial control over the Prisons? There is complete control of the Judiciary over the prisons; all those who are in the custody of the prison authorities are under the mandate of the Courts. 6. Can the prison authorities arrest any person directly? The prison authorities cannot arrest any person directly. 7. Why are the police officers not aware of their duties? Same police officers are given different work every other day. They may be sent for the VIP security, as escorts for the prisoners to the Courts, and then they are deputed at the police stations. Due to this lack of staff, there is no special work that is assigned regularly; this leads to their lack of awareness of their duties. 8. What are the actions that are taken in case there is violation of the arresting directives by the Police officers? The only consequence that was told was that the arrested person would be released, as there is very high level of benefit of doubt that is given to the arrested person. This leads to high level of acquittal. Thus, there was no answer as to the point of departmental enquiry or anything of the similar nature. Adding to this, the prison authorities are not concerned as to the fact that there was violation of arresting law. 9. Are there any violations of the law relating to arrest? There is to a certain degree violation of the law relating to the process of arrest. This includes manipulation of the records, but all this is rectified before they come to prisons. The reason being that they come to the prison only after judicial application of mind.

The Need and Scope for Reforms

Due to arrest there is infringement of individual liberty and that needs to be protected at every level, for this purpose there are safeguards that are provided in many provisions of law so that such an infringement is in accordance to the due process of law. According to one of the UN seminar, arbitrary arrest has been defined as “an arrest authorised by law which fails adequately to protect human rights because either: • The legal right of arrest has been too widely defined or • The means, the circumstances or physical force attendant on the arrest exceed the reasonable requirement of effecting arrest.” The main problem that arises is that of implementation, as in spite of so many protections that are provided in the various provisions from the Constitution to the procedural law, there has been violation of the rules, and that has an impact on the fundamental rights that such arrested persons have. There should be provisions as to penalize the arresting authorities when such provisions are not followed. Even if the person has been taken in the police custody for the purposes of interrogation, he/she should be presented before the Magistrate within 24 hours. This would prohibit the police from using the garb of custody when the person is actually arrested.

Police atrocities However, in spite of the constitutional statutory provisions and judiciary guidelines aimed to safeguard the personal liberty and life of a citizen, growing incidents of torture and death in police custody have been a disturbing matter. Gross violation of human rights takes place when the police with a view to obtain evidence or confession resort to third degree methods including torture. Therefore in the light of the Supreme Court directions, the government needs to amend criminal law. We have enough laws to secure our personal liberty but we do not have the same laws for preventing the abuse of power. Where the abuse of power is prevented, the state leads to a welfare state or, else it leads to totalitarian state To amend our laws we need to know what is the problem with our laws. The following are some of the problems with our structure and suggestions for the same: - • The fundamental problem lies with our laws. On the first reading of the provisions of the Cr.P.C they appear to be very reasonable and seems to be proving safeguards against unlawful arrest but with a closer inspection one can find out the faults with the section which are very fundamental and work against the very purpose of the section itself. Section 41(1)(a) uses the word “concerned in any cognizable offence” “credible information” “reasonable suspicion”. Now how do we know what is credible information or reasonable suspicion or for that matter how do we ascertain whether any one is concerned in any cognizable offence. There is nothing in the code which makes these terms clear so ultimately it is in the police officers hand to decide whether an information is credible or not, whether there is any reasonable suspicion or not or whether the person is concerned in any cognizable offence or not. This basically means that the guidelines given by section 41 is all confused and it provides ample opportunity to police officer to arrest whom so ever he wants. • The Supreme Court has been very sincerely giving directions to be followed by the police officer but nothing is done to see whether these directions are being followed or are they merely laws on the papers. The court has in many decisions given guidelines for a police officer to be followed while arresting a person but there is not any efficient enforcement mechanism to make sure that these guidelines are followed. • While the court has power to interfere if it feels that the law of arrest is not followed it hardly every interferes. • A trail will not be valid simply because the provisions relating to arrest have not been complied with and it ha been held in Nilabati Behara’s case that victims of unlawful arrest and detention have the right to compensation but holding the state vicariously liable is not sufficient. A lose of a person’s life cannot be compensated for by paying some compensatory amount. The punishment to the police officer if they don’t comply with the law of arrest should be severe so that a police officer thinks twice before exceeding his powers. • Though there is no justification for taking away a person’s life many a times the police are forced to do so because of the inefficiency of the court machinery. Many a times a hardened criminal goes clean handed because of the inefficient working of the judiciary. So it is not only the police but also the judiciary, which is to be equally blamed, and which also needs reforms. • One more reason could be the economic and political and social framework of the country. Liberty thus appears to be the gloss over the economic and social system. This is the reason why the legal guarantee of liberty is available to a small privileged section only. It is not the well educated and the influential section of the society who is subjected to police atrocities but it is the middle class and mainly the poor and week section of the society who have no education or any knowledge of their rights. • The courts are required to have a change in their have in their outlook and attitude particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach while dealing with the cases of custodial crimes. So that as far as possible within their powers, the guilty should not escape so that the victim of the crime has the satisfaction that ultimately the majesty of law has prevailed. In the light of the recommendations of the Third Report of National Police Commission and the ratio and the spirit underlying the decisions in Joginder Kumar and D.K. Basu case and the decisions of the Supreme Court on the significance of personal liberty guaranteed by Article 21, a question arises whether would it not be advisable to amend the Criminal Procedure Code providing that: (1) No person shall be arrested for offences that are at present treated as bailable and non-cognizable; in other words, a court shall not issue an arrest warrant in respect of these offences. Only a summons to be served through a court process-server or by other means may be issued. For this purpose, the very expression "bailable" may have to be changed. The expression "bailable" implies an arrest and an automatic bail by the police/court. There appears no reason to arrest a person accused of what is now categorized as bailable- non-cognizable offences. It is true that in case of non-cognizable offences, police cannot arrest without warrant as would be evident from clause (a) of section 41 but there are other clauses in section 41 which may empower this. For example, clause (b) provides that any person found in possession of "any implement of house breaking" is liable to be arrested unless he proves that there is lawful excuse for such possession. Instead of calling/categorizing them as "bailable offences", they can simply be categorized as non-cognizable offences and it must be expressly provided that no arrest shall be made by the police in case of these offences and no court shall issue an arrest warrant either. The court may issue a summons to be served in the manner indicated above. In respect of offences at present treated as bailable and cognizable mentioned, no arrest shall be made, but what may be called an "appearance notice" be served upon the person directing him to appear at the Police Station or before the magistrate as and when called upon to do so, unless there are strong grounds to believe - which should be reduced into writing and communicated to the higher Police officials as well as to the concerned magistrate - that the accused is likely to disappear and that it would be very difficult to apprehend him or that he is a habitual offender. (In case of the latter ground, material in support of such ground shall be recorded.) Accordingly, the expression "bailable" shall be omitted in respect of these offences and they should be termed simply as cognizable offences. Section 41 may be amended appropriately to provide that in case of these offences, no arrest shall be made except in the situation mentioned above. Certain offences "excluded" from this annexure shall continue to be treated as bailable-cognizable. (2) In respect of offences punishable with seven years imprisonment or less which are mentioned in (from which annexure, offences punishable under sections 124, 152, 216-A, 231, 233, 234, 237, 256, 257, 258, 260, 295 to 298, 403 to 408, 420, 466, 468, 477-A and 489-C, have been excluded) – and which are at present treated by the Code of Criminal Procedure as non-bailable–cognizable offences – should be treated as bailable-cognizable offences and dealt with accordingly. So far the offences excluded from this category are concerned (namely, offences punishable under section 124 and others mentioned above), they shall continue to be treated as non-bailable-cognizable, as at present. General principles to be observed in the matter of arrest: The following general principles shall be observed in the matter of arrest for offences. Though for serious offences like murder, sexual offences and other offences where the punishment is either death or imprisonment for life; Arrest shall be effected (a) where it is necessary to arrest the accused to bring his movements under restraint to infuse confidence among the terror-stricken victims or where the accused is likely to abscond and evade the process of law; (b) where the accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint or the accused is a habitual offender and unless kept in custody is likely to commit similar offences again; (c) where the arrest of the persons is necessary to protect the arrested person himself; or (d) where such arrest is necessary to secure or preserve evidence of or relating to the offence; or (e) where such arrest is necessary to obtain evidence from the person concerned in an offence punishable with seven years or more, by questioning him. In this connection, reference may be made to section 157 of Code of Criminal Procedure that says that where a police officer proceeds to investigate the facts and circumstances of a case (on receiving information about commission of an offence), he shall arrest the offender, only where it is "necessary". Merely on suspicion of complicity in an offence, no arrest to be made: The law must provide expressly, by amending section 41 and other relevant sections, if any, that merely on the suspicion of complicity in an offence, no person should be arrested. This gives arbitrary power to the police officers. The Police Officer must be satisfied prima facie on the basis of the material before him that such person is involved in a crime/offence, for which he can be arrested without a warrant. This material satisfaction must be objective in nature and should confirm to scrutiny by judiciary and others. In this connection, reference maybe made to the decision of the European Court of Human Rights in Fox, Campbell and Hartley v. U.K . delivered on 30th August, 1990 declaring that section 11 of Northern Ireland (Emergency Provisions) Act, 1978 is violative of Article 5(1) of the European Convention on Human Rights. The section empowered a police officer to arrest a person if he is "suspected of being a terrorist". The Court (by majority) held that mere suspicion, however bona fide held, cannot be a ground for arrest. Pursuant to the decision, the aforesaid words were replaced by the words "has been concerned in the commission, preparation or instigation of acts of terrorism". The Court considered the case with a need for proper balance between defense of the institution of democracy and protection of individual rights. The “reasonableness” of suspicion on which arrest must be based forms an essential part of the safeguard against arrest and detention as protected by Art. 5 of the convention. This decision is in accord with the modern concept of human rights, which are implicit in Part III of our Constitution. Enhanced role of Civil Society Groups: It has become a common practice that persons are arrested and kept in police custody without specifying the crime for which they are arrested. They are kept for number of days in such unlawful custody and quite often subjected to ill treatment and third-degree methods. To check this illegal practice, there should be a specific provision in the Code of Criminal Procedure creating an obligation upon the officer in-charge of the Police Station to permit representatives of civil society groups to visit the Police Station at any time of their choice to check and ensure that no persons are kept in the Police Stations without keeping a record of such arrest and to ensure further that the provisions of the Constitution and the Code of Criminal Procedure are being observed.. The law should also provide that every police station maintain a custody record which shall be open to inspection by members of Bar, General Public and the representatives of the civil society groups interested in Human Rights. In villages rural bodies like gram panchayat should also be allowed to inspect the records of the police that refer to the custody of the arrested persons Necessity to increase compoundability of offences and incorporate the concept of plea-bargaining: It is equally necessary to increase the number of compoundable offences. It must be remembered that quite a few offences in the IPC are essentially of civil nature. There must be a massive de-criminalisation of law. The concept of plea-bargaining, which has been recommended in the 154th Report of the Law Commission (on Code of Criminal Procedure), should be incorporated in the Code. Indeed, early steps need to be taken upon the said Report. Though it is submitted that plea-bargaining should be a judicial process, and executive should not be a part of it, though assistance may be sought from the Public prosecutor. . Bail should be granted as a matter of course except in the serious offences and in certain circumstances: In respect of all offences except the serious offences like murder, dacoity, robbery, rape and offences against the State, the bailable provisions should be made liberal and bail should be granted almost as a matter of course except where it is apprehended that the accused may disappear and evade arrest or where it is necessary to prevent him from committing further offences. The provisions in Cr.P.C relating to grant of bail may be amended suitably.

No arrest or detention for questioning: It is also necessary to provide that no person shall be arrested or detained by police merely for the purpose of questioning. Such arrest or detention, it is obvious, amounts to unwarranted and unlawful interference with the personal liberty guaranteed by Article 21 of the Constitution. A communication can be sent to the person by many other means to appear at the police station, since it is a matter of public duty to appear assist the police. In the case of Thanakappan v. UOI, The court held that a person is arrested and kept in a police station only if he is involve in a criminal activity, and not to verify his non-involvement in a case. Ensuring the safety and well being of the detainee is the responsibility of the detaining authority: It should also be provided by law expressly that once a person is arrested, it is the responsibility of the arresting and detaining authority to ensure the safety and well being of the detainee. The recommendation of National Police Commission regarding mandatory medical examination of the arrested person deserves implementation. In this connection, the decision of A.P. High Court which has recently affirmed by the Supreme Court - and the examples given therein, wherein the State would be liable for damages for the negligent or indifferent conduct of police/jail authorities should be kept in mind.

Tortious liability of State: Another aspect, which needs notice in this behalf is the decision of the Supreme Court where it was held that no suit lies in respect of tortious acts of government servants which are relatable to sovereign powers of the State. This was so held relying upon Article 300 of the Constitution which preserves the right and liability of the State to sue and be sued obtaining prior to the commencement of the Constitution. Indeed, Article 300 says that the said rule shall continue until a law is made by the Parliament or the State Legislature, as the case may be, laying down the situations in which the State shall be liable for the tortious acts of its servants and where it shall not be liable on the ground that that act was done in exercise of the sovereign powers of State. It is submitted that in a society that is committed to uphold the rule of law, everyone should be accountable for his or her actions including the state and its authorities. The criminal justice administration has to be spruced up, which provides for trial of the accused in a reasonable time. It should include better investigation machinery for the police, better co-ordination between the Prosecutor and the police, not only at the trial, but also at every stage, including investigation, collection of evidence and bail and discharge stage. Also, greater resources should be provided for criminal justice administration and there should be better usage of the resources that are currently provided. There should be a system of internal accountability within the police and judiciary to see that the rights given to the arrested persons are properly enforced and erring policepersons should be punished. However, the police are serving also under a great strain and we should be sensitive to their problems also and understand their difficulties and try and improve them when there is any scope of improvement. The power to arrest is exercised against a person who may turn out ultimately to be innocent, law-abiding citizen. Arrest has a diminishing and demoralizing effect on his or her personality. He or she is outraged, alienated and becomes hostile. But then a balance has to be struck between the security of the State (and the societal interest in peace and law and order) on one hand and the individual freedom on the other.

Bibliography

Articles

1. “Right Against Arbitrary Arrest”, 11 JILI, at 32 (1969). 2. “Right against arbitrary arrest”, 11 JILI, at 34 (1969). 3. Anna Lawson, “Whither the “General Arrest Conditions”?”, The Criminal Law Review, August 1993, at 568. 4. Bruce C McDonald, “Use of force by Police to effect lawful arrest”, The Criminal Law Quarterly, Vol 9 (4) 1966, at 435. 5. Bruce P. Archibalds, “The Constitutionalization of the General Part of Criminal Law” cited from Cases and Materials on Criminal Law S. V. Joga Rao ed., National Law School of India University, 2001 at 124. 6. D.C.Pande, “Criminal Law and Procedure”, 12 ASIL 308 (1976). 7. Dr. Mool Singh, “Dimensions of arrest – Legislative prescription and judicial restriction”, (1998) 2 SCJ 28. 8. G.A.Martin, “Police detention and arrest privileges in Canada”, The Criminal Law Quarterly, Vol 4, 1961-62, at 61. 9. J.K.Mathur, “Illegal Search and Arrest- Its Effect on Trail: An Appraisal of Decision in Balbir and Saiyad Mohd.” (1997) 6 SCC (Jour) 12. 10. K.Balagopal, “The policing of India”, Lawyer’s Collective, April-May 1989,at 5. 11. K.G.Kannabiran, “How effective are International Declarations against Police Brutality”, Lawyers’ Collective, April-May, 1989, at 10. 12. L.H.B.Leigh, “Protection of human rights in criminal procedure: The British experience”, 17 (1&2) CULR 20, at 25 (19). 13. Majeed Menon, “Remand to Police Custody”, Lawyers’ Collective, July-Aug 1987, at 57. 14. R. V. Kelkar, “Law of arrest: Some problems and incongruities”, 22(3) JILI, at 314 (1980). 15. Srinivas S Kaushik, “Mandatory or Directory procedure? A Practical solution in Balbir Singh”, 37(4) JILI, at 105 (1995). 16. Suresh Benjamin, “Prevent torture by the police and investigation agencies” 2001 Cri, L.J 10 17. Suresh Benjamin, “Prevent Tortures by the Police and the Investigations Agencies” 2001 Cri L.J 10. 18. Vijay Kumar, “Individual’s liberty and abuse of police power of arrest and definition: A broader perspective”, 1995 Cri.L.J. 27

Books

1. B.B.Mitra on the Code of Criminal Procedure, 1973 1( S.R.Roy ed., 18th ed., Calcutta: Kamal Book House) at 127. 2. C. K . Takwani, Civil Procedure, 4th Edition, (Lucknow : Eastern Book Company, 2000). 3. Francis C. Jacobs and Robin White, The European Convention on Human Right, 2nd Edition (Oxford: Claredon Paperbacks, 1996) at 79. 4. Leading Constitutional Cases on Criminal Justice (Lloyd L Weinreb ed., Westbury: the Foundation Press, Inc., 1990) 5. R. Nagrathnam, Criminal Procedures: Principles and Precedents (New Delhi: Tata McGraw-Hill Publishing Company Limited, 1990). 6. R.V.Kelkar’s Lectures on Criminal Procedure (K.N.Chandrashekheran Pillai ed., 3rd ed., Lucknow: Eastern Book Company, 1998). 7. Stephen A, Saltzburg, American Criminal Procedure – cases and commentaries. (Minnesota: West Publishing Co., 1988) at 127

Reports 1. 154th Law Commission Report. 2. Law Commission Consultation Paper on Law of Arrest, 1999.

Appendix

1) THE SC & ST (PREVENTION OF ATROCITIES) ACT, 1989

The statements of objects and reasons of the above act state that: 1) Despite various measures to improve the socio economic conditions of the SC’s and ST’s, they remain vulnerable. They are denied a number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, have been deprived of their life and property. serious crimes are committed against them for various historical, social and economic reasons. 3) The term ‘atrocity’ has not been defined so far. It is considered necessary that not only the term atrocity should be defined but stringent measures should be introduced to provide for higher punishments for committing such atrocities. It is proposed to enjoining on the states and the Union Territories to take specific preventive and punitive measures to protect them from being victimized and where atrocities are being arrested to provide for adequate relief and assistance to rehabilitate them. 2). ………Under the circumstances, the existing laws like Protection of Civil Rights Act and normal provisions of Indian Penal Code have been found to be inadequate to check these crimes. A special legislation to check and deter crimes against them has, therefore become necessary.

1. 18: Section 438 of the code (Cr. P.C) not to apply to persons committing an offence under the act- Nothing in S. 438 of the code shall apply in relation to any case involving the arrest of any person on accusation of having committed an offence under this act.

Person committing offences under S. 3 of this act cannot be granted anticipatory bail. Offenses under this act form a distinct class by themselves and cannot be compared with other offences. Exclusion of application of provision regarding anticipatory bail is not violative of Art. 14 and 21 of the constitution.

2) Canadian Criminal Law S.25 (1) Everyone who is required or authorized by law to do anything in the administration or enforcement of law: as a private person. as a peace officer or public officer. in aid of a peace officer or public officer, or by virtue of his office, is, if he acts on reasonable and probable grounds, justified in doing what he required or authorized to do and in using as much force as is necessary for that purpose. (4) A peace officer who is proceeding lawfully to arrest, with or without warrant, any person for an offence for wh