PART I
LAW OF ARREST

1.1 Chapter five of the Code of Criminal Procedure, 1973 deals with the arrest of persons. Section 41 is the main section providing for situations when Police may arrest without warrant. It reads as follows:

“41. When police may arrest without warrant.- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

2. Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110.”

1.2 Section 42 specifies yet another situation where a police officer can arrest a person. According to this section if a person commits an offence in the presence of a police officer or where he has been accused of committing a non-cognizable offence and refuses, on demand being made by a police officer to give his name and residence or gives false name or residence, such person may be arrested but such arrest shall be only for the limited purpose of ascertaining his name and residence. After such ascertaining, he shall be released on executing a bond with or without sureties, to appear before a magistrate if so required. In case the name and residence of such person cannot be ascertained within 24 hours from the date of arrest or if such person fails to execute a bond as required, he shall be forwarded to the nearest magistrate having jurisdiction.

1.3 Section 43 speaks of a situation where an arrest can be made by a private person and the procedure to be followed on such arrest. Section 44 deals with arrest by a magistrate. Section 45 protects the members of the Armed Forces from being arrested under sections 41 to 44. Section 46 sets out the manner in which the arrest should be made and section 47 enables the police officer to enter a place if he has reason to believe that the person to be arrested has entered into that place or is within that place. Section 48 empowers the police officers to persue the offenders into any place in India beyond their jurisdiction. Section 49 however provides that “the person arrested shall not be subjected to more restraint than is necessary to prevent his escape”. Section 50 (which corresponds to clause (1) of Article 22 of the Constitution) creates an obligation upon the police officer to communicate to the person arrested full particulars of the offence for which he is arrested or other grounds for such arrest forthwith. It also provides that where a person is arrested for a bailable offence without a warrant, the police officer shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. Section 51 provides for search of arrested person while section 52 empowers the police officer to seize offensive weapons from the arrested person. Sections 53 and 54 provide for medical examination of the arrested person at the request of the police officer or at the request of the arrested person, as the case may be. Section 55 prescribes the procedure to be followed when a police officer deputes his subordinate to arrest a person without warrant. Section 56 (which corresponds to clause (2) of Article 22) of the Constitution, provides that the person arrested shall not be kept in the custody of a police officer for a longer period than is reasonable and that in any event such period shall not exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the magistrate’s court. Of course if the magistrate permits the police officer to keep such person in his custody, he can do so beyond the period of 24 hours. Section 58 casts an obligation upon the officers in charge of police station to report to the specified authorities of arrests made without warrant within their jurisdiction and of the fact whether such persons have been admitted to bail or not. Section 59 says that no person arrested by a police officer shall be discharged except on his own bond or bail or under the special order of the magistrate. Section 60, which is the last section in the chapter, empowers the person having the lawful custody to pursue and retake the arrested person if he escapes or is rescued from his custody.

1.4 Practical aspects of sections 41 and 42, CrPC.- A reading of the above provisions and, in particular, of Sections 41 and 42 shows the width of the power of arrest vested in police officers. Take for example, the ground in clause (b) of Section 41. It empowers a police officer to arrest a person who is in possession of “any implement of house breaking” and the burden is placed upon that person to satisfy that possession of such implement is not without “lawful excuse”. What does an “implement of house breaking” mean? Any iron/steel rod or any implement used by way-side repairers of punctured tyres can also be used for house breaking. Similarly, clause (d). Any person found in possession of stolen property “and who may be reasonably suspected of having committed an offence with reference to such thing.” What a wide discretion? Why, take clause (a) itself. The situations covered by it are: (i) a person who is “concerned in any cognizable offence”, (ii), a person against whom a reasonable complaint is made that he is “concerned in a cognizable offence”; (iii) a person against whom “credible information” is received showing that he is “concerned in any cognizable offence” and (iv) a person who is reasonably suspected of being “concerned in any cognizable offence”. The generality of language and the consequent wide discretion vesting in police officers is indeed enormous – and that has been the very source of abuse and misuse. The qualifying words “reasonable”, “credible” and “reasonably” in the Section mean nothing in practice. They have become redundant; in effect.

1.5 Wider powers of arrest under section 151, CrPC.- Added to these provisions are the preventive provisions in the Code of Criminal Procedure which empower the police to arrest persons. Section 151 empowers a police officer to arrest any person, without orders from a Magistrate and without warrant, “if it appears to such officer” that such person is designing to commit a cognizable offence and that the commission of offence cannot be prevented otherwise. We do not think it necessary to emphasise the width of the power. It may be true that the satisfaction of the police officer contemplated by the expression “if it appears to such officer” is not subjective but is objective but in India, police officers making a wrongful arrest whether under section 41 or 151, are seldom proceeded against – much less punished. There are too many risks involved in doing so.

1.6 Large number of persons arrested under sections 107 to 110, CrPC.- There is yet another category viz., sections 107 to 110 of the Code of Criminal Procedure. These sections empower the Magistrate to call upon a person, in situations/circumstances stated therein, to execute a bond to keep peace or to be on good behaviour. These provisions do not empower a police officer to arrest such persons. Yet, the fact remains (a fact borne out by the facts and figures referred to hereinafter) that large number of persons are arrested under these provisions as well. And we are speaking of vast discretion not in a civil service officer but in a member of armed force though technically speaking, it is also a civil service.

1.7 Constitutional protection.- Clause (1) of Article 22 of the Constitution which is one of the fundamental rights in Part III, declares that “no person who is arrested shall be detained in custody without having informed, as soon as maybe, on the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice.” Clause (2) of Article 22 says that every person arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding of course the time necessary for the journey from the place of arrest to the court of magistrate. The clause further declares that no such person shall be detained in custody beyond the said period without the authority of a magistrate. Clause (3) of Article 22 however provides that clauses (1) and (2) shall not apply to an enemy-alien or to a person who has been arrested under any law providing for preventive detention.

1.8 Misuse of power of arrest.- Notwithstanding the safeguards contained in the Code of Criminal Procedure and the Constitution referred to above, the fact remains that the power of arrest is wrongly and illegally exercised in a large number of cases all over the country. Very often this power is utilized to extort monies and other valuable property or at the instance of an enemy of the person arrested. Even in case of civil disputes, 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 vast discretion given by the CrPC to arrest a person even in the case of a bailable offence (not only where the bailable offence is cognizable but also where it is non-cognizable) and the further power to make preventive arrests (e.g. under section 151 of the CrPC and the several city police enactments), clothe the police with extraordinary power which can easily be abused. Neither there is any in-house mechanism in the police department to check such misuse or abuse nor does the complaint of such misuse or abuse to higher police officers bear fruit except in some exceptional cases. We must repeat that we are not dealing with the vast discretionary powers of a mere civil service simpliciter, we are dealing with the vast discretionary powers of the members of a service which is provided with firearms, which are becoming more and more sophisticated with each passing day (which is technically called a civil service for the purposes of Service Jurisprudence) and whose acts touch upon the liberty and freedom of the citizens of this country and not merely their entitlements and properties. This is a civil service which is being increasingly militarized, no doubt, to meet the emerging exigencies.

1.9 Balancing of societal interests and protection of rights of the accused.- We are not unaware that crime rate is going up in our country for various reasons which need not be recounted here. Terrorism, drugs and organized crime have become so acute that special measures have become necessary to fight them not only at the national level but also at the international level. We also take note of the fact that quite a number of policemen risk their lives in discharge of their duties and that they are specially targeted by the criminal and terrorist gangs. We recognize that in certain situations e.g., like the one obtaining in Kashmir today, a literal compliance with several legal and constitutional safeguards may not be practicable but we must also take note of and provide for the generality of the situation all over the country and not be deflected by certain specific, temporary situations. We must also take note of the fact that very often it is the poor who suffer most at the hands of Police. Their poverty itself makes them suspects. This was said, though from a different angle, by George Bernard Shaw. He said “poverty is crime”. But nowadays, even middle classes and other well-to-do people, who do not have access to political power-wielders, also are becoming targets of Police excesses. We recognize that ensuring a balance between societal interest in peace and protection of the rights of the accused is a difficult one but it has to be done. We also recognize the fundamental significance of the Human Rights, which are implicit in Part III of our Constitution and of the necessity to preserve, protect and promote the Rule of Law which constitutes the bedrock of our constitutional system.

1.10 Guidelines laid down by the Supreme Court.- The effort of the courts, and in particular of the Supreme Court over the last more than two decades has been to circumscribe the vast discretionary power vested by law in Police by imposing several safeguards and to regulate it by laying down numerous guidelines and by subjecting the said power to several conditionalities. The effort throughout has been to prevent its abuse while leaving it free to discharge the functions entrusted to the Police. While it is not necessary to refer to all of them for the purpose of this working paper, it would be sufficient if we refer to a few of them (which indeed reaffirm and recapitulate the directions and guidelines contained in earlier decisions). In Joginder Kumar v. State of U.P. (AIR 1994 SC 1349), the power of arrest and its exercise has been dealt with at length. It would be appropriate to refer to certain perceptive observations in the judgment:

“The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?
A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first – the criminal or society, the law violator or the law abider; of meeting the challenge which Mr. Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society’s rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered.

The quality of a nation’s civilisation can be largely measured by the methods it uses in the enforcement of criminal law.”

This court in Smt. Nandini Satpathy v. P.L. Dani AIR 1978 SC 1025 at page 1032, quoting Lewis Mayers, stated:

“To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft.” The pendulum over the years has swung to the right.

Again in para 21, at page 1033, it has been observed:

“We have earlier spoken of the conflicting claims requiring reconciliation. Speaking pragmatically, there exists a rivalry between societal interest in effecting crime detection and constitutional rights which accused individuals possess. Emphasis may shift, depending on circumstances, in balancing these interests as has been happening in America. Since Miranda ((1966) 334 US 436) there has been retreat from stress on protection of the accused and gravitation towards society’s interest in convicting law-breakers. Currently, the trend in the American jurisdiction according to legal journals is that ‘respect for (constitutional) principles is eroded when they leap their proper bounds to interfere with the legitimate interests of society in enforcement of its laws…. (Couch v. United States (1972) 409 US 322, 336). Our constitutional perspective has, therefore, to be relative and cannot afford to be absolutist, especially when torture technology, crime escalation and other social variables affect the application of principles in producing humane justice.”

The National Police Commission in its Third Report referring to the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails. The said Commission in its Third Report at page 31 observed thus:

“It is obvious that a major portion of the arrests were connected with very minor prosecutions and cannot, therefore, be regarded as quite necessary from the point of view of crime prevention. Continued detention in jail of the persons so arrested has also meant avoidable expenditure on their maintenance. In the above period it was estimated that 43.2 per cent of the expenditure in the connected jails was over such prisoners only who in the ultimate analysis need not have been arrested at all.”…. (The figures given in the Report of the National Police Commission are more than two decades old. Today, if anything, the position is worse.)

The Royal Commission suggested restrictions on the power of arrest on the basis of the ‘necessity of principle’. The two main objectives of this principle are that police can exercise powers only in those cases in which it was genuinely necessary to enable them to execute their duty to prevent the Commission of offences, to investigate crime. The Royal Commission was of the view that such restrictions would diminish the use of arrest and produce more uniform use of powers. The Royal Commission Report on Criminal Procedure – Sir Cyril Philips, at page 45 said:
“…. We recommend that detention upon arrest for an offence should continue only on one or more of the following criteria;

1. the person’s unwillingness to identify himself so that a summons may be served upon him;
2. the need to prevent the continuation or repetition of that offence;
3. the need to protect the arrested person himself or other persons or property;
4. the need to secure or preserve evidence of or relating to that offence or to obtain such evidence from the suspect by questioning him; and
5. the likelihood of the person failing to appear at court to answer any charge made against him.”

The Royal Commission in the above-said Report at page 46 also suggested:
“To help to reduce the use of arrest we would also propose the introduction here of a scheme that is used in Ontario enabling a police officer to issue what is called an ‘appearance notice’. That procedure can be used to obtain attendance at the police station without resorting to arrest provided a power to arrest exists, for example to be finger-printed or to participate in an identification parade. It could also be extended to attendance for interview at a time convenient both to the suspect and to the police officer investigating the case….”

In India, Third Report of the National Police Commission at page 32 also suggested:
“…An arrest during the investigation of a cognizable case maybe considered justified in one or other of the following circumstances:

It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines….”
It would equally be relevant to quote para 24, which reads as follows:
“The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some 11
investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave Station without permission would do.”
The ultimate directions given, contained in paras 26 to 29, read as follows:
“These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognized and scrupulously protected. For effective enforcement of these fundamental rights, we issue the following requirements:

1. An arrested person being held in custody is entitled, if he so requests to have one friend relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.

2. The Police Officer shall inform the arrested person when he is brought to the police station of this right.

3. An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.

It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.

The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various Police Manuals.
These requirements are not exhaustive. The Directors General of Police of all the States in India shall issue necessary instructions requiring due observance of these requirements. In addition, departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest.”

1.10.1 The next decision which may be usefully referred to is D.K. Basu v. State of West Bengal (AIR 1997 SC 610). It would be sufficient if we quote paras 36 to 40 which contain the final directions issued in the said decision. They read as follows:
“We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention, till legal provisions are made in that behalf, as preventive measures:

Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of Court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.

The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.

These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the Courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.

The requirements mentioned above shall be forwarded to the Director General of Police and the Home Secretary of every State/Union Territory and it shall be their obligation to circulate the same to every police station under their charge and get the same notified at every police station at a conspicuous place. It would also be useful and serve larger interest to broadcast the requirements on the All India Radio besides being shown on the National Network of Doordarshan and by publishing and distributing pamphlets in the local language containing these requirements for information of the general public. Creating awareness about the rights of the arrestee would in our opinion be a step in the right direction to combat the evil of custodial crime and bring in transparency and accountability. It is hoped that these requirements would help to curb, if not totally eliminate, the use of questionable methods during interrogation and investigation leading to custodial commission of crimes.”

1.11 Need for providing statutory safeguards to prevent abuse of power of arrest.- Notwithstanding the above decisions – we may legitimately presume that the directions and guidelines contained were duly published by respective Directors General of Police of all the States and were brought to the notice of all the police officers – the complaints of abuse of power of arrest still continue unabated. Several instances of such exercise have come to the notice of each of us and to the notice of all responsible persons of the society. The Law Commission, therefore, thought that something more needs to be done to prevent the abuse and misuse of the power of arrest while at the same time not hurting the societal interest in peace and law and order. Indeed, both the decisions referred to above say expressly that the directions and guidelines issued/laid down therein are to be followed “till legal provisions are made in that behalf.” It is, therefore, necessary to make appropriate legal provisions not only incorporating the said guidelines/directions but also making such changes in law as may be necessary to prevent abuse/misuse of the said power while at the same time ensuring that interest of the society in maintenance of peace and law and order is not jeopardized.

1.12 Empirical data collected on the relevant aspects of the law of arrest.- But before we could think of any specific measures in that behalf, we thought it necessary to obtain empirical data on the relevant aspects of the law of arrest so that it can form the basis for devising the measures to be recommended by us. Accordingly, the Law Commission wrote a letter dated 20.7.1999 (Annexure-I to this working paper), addressed to the Chairperson of the National Human Rights Commission stating that the Law Commission proposes to examine exhaustively the law relating to arrest and to suggest to the Government and the Parliament appropriate changes required in the aforementioned provisions and that to enable the Law Commission to arrive at an appropriate conclusion, it must have relevant empirical data from all over the country. Accordingly, we requested the NHRC, “to constitute a committee of high police officials (retired or working) who shall select four districts in the country as case study and find out the number of arrests made by the police in that district in a given year without warrant, the number of arrests which were made without registering the crime, the number of cases in which the person arrested was released without filing a chargesheet and the length of his detention, the number of cases in which chargesheets were filed and the number of cases in which the prosecution resulted in conviction.” It was further stated in the said letter that “it would also be necessary to categorise the offences in connection with which the persons were arrested, the period of the detention in police and in judicial custody, the time taken for concluding the prosecution against them and if a person is kept in detention, the number of occasions on which he was not produced before the court on the dates of hearing. It would help us if any other relevant or incidental details or data which the committee may think relevant is also made available to us.” We stated that we would welcome any suggestions, ideas and recommendations which such body may record on the subject keeping in view the recommendations contained in the Police Commission Reports.

1.12.1We are happy to say that the Chairperson of the NHRC Shri Justice M.N. Venkatachaliah, took immediate action on our letter and directed Shri D.R. Karthikeyan, DG (Investigation) of the NHRC to address all the Director Generals of Police/Inspector Generals of Police of all States in this regard. A large amount of material which was sent by the various DGPs/IGPs of the various States, pursuant to the letter of Shri D.R. Karthikeyan, has been communicated to us. We are indeed grateful to the NHRC for the highly valuable information made available to us and for the promptitude with which such information has been made available to us.