Law against illegal police custody

Law against illegal police custody

Author : Mrinal Kedar

Introduction:

Whenever there is a crime, the criminal is arrested based on that crime, whether it is civil or criminal. It is the solemn duty of the law officers to uphold justice by making these arrests to create a sense of security in the mind of the common public. While the officers have to uphold justice the courts have to do the same. Whenever an arrest is made it is necessary to present the arrested person in front of a Magistrate. An arrest can be executed not solely in Criminal cases but also in civil cases. In order to produce arrestee before a Court of Law or contrarily protected of the power of the law, an arrest will ordinarily be executed. Arresting a person who has committed a crime can make sure that he does not commit such crimes in the future.  But arrests are not only made after a crime is committed there are some instances where an arrest is made solely for preventive measures. Although for a few years now there has been an ongoing debate about the validity of these arrests made for “preventive measures.”. A preventive arrest in simple words means arresting a person who is expected to commit a cognizable crime eventually in the future. Various statutes and a class of provisions have been legislated by the legislation to prevent such incidents. Sections 107 and 151 of the Code of Criminal Procedure, 1973 are the commonly used pieces of legislation in India. 

What is an arrest?

An arrest is an act of seizing and holding a person into confinement (legal security or restraint), normally because the person has been doubted of or witnessed perpetrating a violation. After being carried into imprisonment, the person can be investigated further and/or charged.

The term “Arrest” is explained as the act of seizing of a person by the legal officials to take him into custody by inducing loss of leisure. Hence, following an arrest, a person’s freedom is in command of the arrester. In criminal law, it is stated that an arrest is a vital means for producing an accused before the court and to restrain him from fleeing.

To present the accused before the court or to keep a check that the law is administrating properly an arrest is made. When an arrest is made, it serves the objective of notifying the society about the accused and to warn the accused of the consequences of committing other crimes.

According to Indian legislation, the Criminal Procedure Code, 1973 mentions ‘arrest’ under sections 41 to 61 (the code doesn’t define arrest under any section).

Who can make an arrest?

Administrative authorities like the police, the Judicial Magistrate and/or any private person, can arrest a person under certain provisions provided in the Criminal Procedure Code. 

Under Section 43 of Criminal Procedure Code, any private person has the power to arrest an individual without a warrant only under situations where the person has been reported to be an offender under Section 82 of the CrPC or when a person is said to have committed a non-bailable offence in their presence. In cases when the private person has a warrant under Section 72 and 73, or with the permission of a Police officer or the under the order of the Judicial Magistrate under Section 37 and 44 of the Code.

Under Section 44 of Criminal Procedure Code, either the Judicial or the Executive Magistrate may arrest a person or order another person to arrest the offender for committing an offence in his presence; the power to award bail or to hold an offender in custody is in the control of the Magistrate according to the provision given in the Criminal Code.

Arrest By Police Officer:

A Police Officer, being the administrative official, has the authority to arrest any person, with or without a warrant under sections 72 and 41 of the Crpc, respectively, with a signed order of an officer in charge under sections 55 and 157 of CrPC. The Station Head Officer (SHO) of a Police Station may arrest any person under sections 42(2) and 157 of the Code.

Following are the situations under which a Police Officer may arrest without a warrant: –

In case the offence committed is cognizable;

In case the person is in possession, without any lawful excuse of any housebreaking weapon;

In case a person has been implied as an offender under the Criminal Procedure Code or has by the State Government’s order been declared the same;

In case a person has been discovered in possession of any stolen property;

In case an individual stops a police officer while performing his duty or an individual who has fled or attempts to escape, from lawful custody;

In case an individual holds concerns in any law regarding deportation/extradition;

In case a person is a released convict and commits a breach of rule under sections 356(5) Criminal Procedure Code.

Arrest By Magistrate

Judicial Magistrate I Class and Judicial Magistrate II Class, both have the power to arrest any person without a warrant, Only under these two circumstances: 

If any person commits a crime within the local jurisdiction of and in the presence of such Magistrate,

Any person within the Magistrate(s) local jurisdiction for whose arrest he is qualified to issue a warrant. 

Illegal arrest:

”A tort (a civil wrong) that consists of illegal restraint of a person’s personal choice or freedom of mobility by another purporting to act according to the law.” An action can be established for the losses resulting from false arrests, such as loss of wages while detained, or damage to the character that happens in financial damage to the sufferer. In short, if an illegal arrest is made Compensatory damages can be awarded.

What are the rights of an arrested person?

While there are powers given to law officials to make an arrest there are also provisions given under the Criminal Code for the person being detained to secure proper safeguards for the community. An arrested person uses these rights either at the time of arrest or at the time of trial, following are the rights designated in the Criminal Procedural Code: 

1. Section 50(1) Criminal Procedure Code, a person holds the right to be informed i.e. under Article 22 of the Indian Constitution, it is a fundamental right of every citizen that at the time of arrest, the Police must notify the arrestee the grounds of the offence perpetrated by him for which he is being arrested. The Police are also obliged to notify the person as to the offence perpetrated is of bailable or non-bailable.
2. Section 75 Criminal Procedure Code grants for the arrested persons to review whether the warrant includes the essential aspects i.e. whether the warrant is in writing or not, the warrant should be approved by the presiding officer, should also have the court’s seal on it along with the name, address and the offence committed by the accused (if any of the details are missing, the warrants stands null and void).
3. Section 56 of Criminal Procedure Code talks about the right of an arrested person to be produced before the Magistrate.
4. Section 57 of Criminal Procedure Code declares that “No police officer shall detain in custody a person arrested without a 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.”
5. Sections 41D and 303 of the Criminal Procedure Code enables the arrested person to exercise the right of meeting with an advocate of his discretion, during the interrogation.
6. Section 50 of the Criminal Procedure Code gives the right to inform a family member, a friend or a relative of the arrested person.
7. Sections 54 of the Criminal Procedure Code grant rights to the arrested person of having medical help right after the time of arrest (for both male and female), along with Section 55A declaring “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.”
8. Article 20(3) permits the arrested person to use his right to remain silent to limit the Police to obtain self-inculpatory statements out of the accused.

Conclusion:

Law and Order are there to help people and not to scare people. It is to ensure that justice prevails but in the process of ensuring it, the law also has to ensure that no rights are infringed during this process. Not just the rights of common people but also the rights of the people that are arrested. It is to make sure that no innocent person has to suffer illegal detention.