Victims, Victims rights and Penology by Dr.Debarati Halder: May 2020

http://www.cybervictims.org

Before understanding the rights of the arrested persons, we must understand that there are some hairline differences between rights of the accused persons and rights of the arrested persons. ‘Accused persons’ is a broader term which includes arrested persons. But accused persons can include persons who are accused of committing civil offences, petty offences etc, where arrest may not be made. Accused person’s rights may include six broad rights :

ü Right to defend himself

ü Right to get legal aid and legal counselling

ü Right to fair hearing and principles of natural justice

ü Right to bail (in case the accused person is accused of any bailable offences)

ü Right against arbitrary arrest and detention where such arrest and detention are not necessary.

ü Rights against custodial torture.

The relationship between the two terms may be shown through the following diagram:

Arrested persons on the other hand may necessarily mean those who may have committed offences in the category of cognizable offences or non-cognizable offences where arrest may necessarily be made.

In the Criminal Procedure Code, Law of arrest has been discussed mainly under Chapter 5 (Ss 41-60A). Rights of the arrested persons is an inherent part of law of arrest. This right can be studied under following heads:

S.41 of the Cr.P.C discusses about when arrest may be done made without warrant by the police. This section provides the following conditions when such arrest may be made:

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

(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or

(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house- breaking; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub- section (5) of section 356(which speaks about The State Government may, by notification, make rules to carry out the provisions of this section relating to the notification of residence or change of, or absence from, residence by released convicts.); or

(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

Further Section 41A of Cr.P.C also discusses as when arrest may and may not be made. It says that “the police officer may, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.” It further says “Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.” In such cases, arrests may not be made technically.

But, it further says “Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested”. It again says, “Where such person, at any time, fails to comply with the terms of the notice, it shall be lawful for the police officer to arrest him for the offence mentioned in the notice, subject to such orders as may have been passed in this behalf by a competent Court”. In such cases, arrest may be made.

S.42 of the Cr.P.C further lays down another ground for arrest : it says, “When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.”. It further says “When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required”:

Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.

Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.

However, the rights of the arrested persons remained ignored for a long time. In the case of D.K. Basu vs State of West Bengal , AIR 1997, SC 610(623), The courts laid down certain guidelines that could be taken as rights of the arrested persons. These are as follows:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.

6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a panel for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

The guidelines of D.K. Basu case had been incorporated in Chapter 5 through the following Sections:

Ø Section 41B – Procedure of arrest and duties of officer making arrest: Every police officer while making an arrest shall,- bear an accurate, visible and clear identification of his name which will facilitate easy identification; prepare a memorandum of arrest which shall be,- attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made; countersigned by the person arrested; and inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.

Ø Section 41C – Control room at districts: The State Government shall establish a police control room, in every district; and at State level. The State Government shall cause to be displayed on the notice board kept outside the control rooms at every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests. The control room at the Police Headquarters at the State level shall collect from time to time, details about the persons arrested, nature of the offence with which they are charged and maintain a database for the information of the general public.

Ø Section 41D – Right of arrested person to meet an advocate of his choice during interrogation: When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.

Rights of arrested persons must also include discussions on immunities for members and armed forces and judicial officers. S. 45 of CrPC in this regard says “Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government. The State Government may, by notification, direct that the provisions of Sub-Section (1) shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that Sub-Section shall apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted.” One of the good examples could be the case of Jammu and Kashmir human shield case where the army official who was allegedly considered as the person who directed to tie a man with the jeep, was not tried by regular courts. In case of arrest of judicial officers, Cr.P.C does not offer any specific guidelines. But in the case of Delhi Judicial service association vs State of Gujarat AIR 1991 SC 2176, it was observed that arrest of judicial officer must be done under intimation to the District Judge or the High court. In case of need for immediate arrest a technical or formal arrest may be effected and Such arrest may be communicated immediately to district and sessions judge & chief Justice of the concerned high court.

Now comes the question as how arrests should be made? S.46 of the Cr.P.C provides the answer which says that arrest must be made by touching the body of the person, which in clear terms means confining the person. This Section says as follows:

In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

We therefore get to see that if the accused is trying to escape from the arrest, the police officer can use some force. But S.46 prohibits using any force which may cause death or grave bodily injury especially to accused persons who are not charged with offences punishable with death or life imprisonment.

However, when a woman is to be arrested, this provision further states as followed:

Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed. Only female police officers may execute the physical arrest and male police officer shall not touch the person of the woman for making her arrest.

Now, coming to the apprehension of children who are in conflict with law, the criminal justice machinery has to follow Juvenile Justice Care and Protection Act, 2015, read with Chapter 5 of the Criminal Procedure Code. The three points that must be remembered in this regard are as follows:

ü Arrest must not be made until and unless it is necessary to detain the child

ü Arrest must be done by SJPU. Female police officers are given priority in such cases

ü Police officer must act as the guardian of the child until he has been submitted to the observation home or is submitted to his parents etc after admonishing/bail

The Juvenile Justice Care and Protection Act read with Chapter 5 of the Cr.P.C further emphasizes the following rights :

Medical examination

Right to legal aid

No custodial torture

Justice in the interest of child

Rights of the arrestee also includes certain duties of the police officers. Let us now look into these duties and rights in the following Sections:

Arrests made under S.47:

What can be done when an offender escapes from arrest and hides in any property ?

police officer should be allowed free ingress thereto, and afford all reasonable facilities for a search therein.

What happens when such ingress may not made ?

Police officer can break open any outer or inner door or window of any house or place,

What happens when such place is an apartment and in occupancy of a woman including Pardanashin woman ?

She should be allowed to withdraw and police may then break open the apartment and enter it.

What happens when the police or any other person empowered with a duty to arrest the offender, is detained in a place

Any police officer or other person authorised to make an arrest may break open any outer or inner door or window of any house.

When can search be made of arrested persons ?

Section 51 discusses about Search of arrested persons and it says as follows:

Whenever a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person Arrested cannot furnish bail, and whenever a person is arrested without warrant, or by a private person under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail search can be made

It further says,

The officer making the arrests or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing-apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person.

What happens when a female offender needs to be searched ?

Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.

There are also several duties of police officers to ensure rights of the arrested persons who is making the arrest. These are as follows:

ü Section 49 (No unnecessary restraint) :The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

ü Section 50( Person arrested to be informed of grounds of arrest and of right to bail): Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

ü Section 50A Obligation of person making arrest to inform about the arrest to inform about the arrest, etc., to a nominated person:

Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information.

The police officer shall inform the arrested person of his rights under subsection (1) as soon as he is brought to the police station.

An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government.

It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of Sub-Section (2) and Sub-Section (3) have been complied with in respect of such arrested person.

ü Section 55A – Health and safety of arrested person: It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused.

ü Duties of police officer to ensure medical test of the arrested persons under specific circumstances:

ü Section 53 – Examination of accused by medical practitioner at the request of police officer: When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonable necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.

ü Section 53A – Examination of person accused of rape by medical practitioner

When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely-

the name and address of the accused and of the person by whom he was brought,

the age of the accused,

marks of injury, if any, on the person of the accused,

the description of material taken from the person of the accused for DNA profiling, and”.

other material particulars in reasonable detail.

The report shall state precisely the reasons for each conclusion arrived at.

The exact time of commencement and completion of the examination shall also be noted in the report.

The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of Sub-Section (5) of that section.

ü Medical examination in other cases

ü Section 54 – Examination of arrested person by medical officer

When any person is arrested, he shall be examined by a medical officer in the service of Central or State Government, and in case the medical officer is not available, by a registered medical practitioner soon after the arrest is made;

The medical officer or a registered medical practitioner so examining the arrested person shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted.

Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person.

Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner.

ü Other essential duties of police officer towards arrested person

ü Immediate production of the arrested person before magistrate :

ü S.56– Person arrested to be taken before Magistrate or officer in charge of police station : A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.

ü No detention beyond 24 hours :

ü Section 57 – No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.

Reporting about apprehension, bail etc to Executive magistrates

ü Section 58 – Police to report apprehensions: Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise

ü How to ensure identity of the arrested person?

ü Section 54A – Identification of person arrested

Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction, may on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit.

Provided that, if the person identifying the person arrested is mentally or physically disabled, such process of identification shall take place under the supervision of a Judicial Magistrate who shall take appropriate steps to ensure that such person identifies the person arrested using methods that person is comfortable with. The identification process shall be video graphed

ü Specific obligations under the Criminal Procedure Code for arrest:

Please Note:
Please don't violate the copyright of this blog. Please cite it as Halder Debarati (2020). Rights of the arrested persons under Criminal Procedure Code : Simplified understanding . Published on 11-05-2020 @ https://victimologybydebarati.blogspot.com/2020/05/rights-of-arrested-persons-under.html