Supreme Court in Social Action Forum for Manav Adhikar v. Union of India, (2018) 10 SCC 443, held that the law of arrest is one of balancing individual rights, liberties and privileges, on one hand and individual duties, obligations and responsibilities on the other hand.

No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person.  No arrest should be made without reasonable satisfaction reached after some investigation as to the genuineness and bona fide of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest.

A person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police unless conditions mentioned in Section 41(1)(b) have been fulfilled.

Supreme Court in the case of Joginder Kumar v. State of U.P., (1994) 4 SCC 260, held that regulating the nature of interaction between the accused and the police authorities is at the crux of developed criminal justice system. In this case the court laid down certain guidelines in order to have transparency in the accused police relations.

Need for guidelines: Prior to the 2009 Amendment of Code of Criminal Procedure, Section 41 empowered police officer to arrest any person without warrant if he has committed any cognizable offence in his presence or against whom a reasonable complaint or credible information is received to that effect. Thus, mere fact that the offence is cognizable gave them power to curtail the liberty of any person and arrest.

Thus, in Joginder Kumar’s case, the court observed that arrest and custodial deaths have become a handy rule and common phenomenon. The court clarified that power to arrest is one thing and the exercise of such power is another. So, the court directed the police officers not to make arrests in routine manner but only under compelling circumstances and laid down following guidelines:

(a)    An arrested person in custody is entitled to have one friend, relative or other person interested in his welfare to be informed of his arrest.

(b)    He shall be informed of this right by the police officer making arrest.

(c)    An entry shall be made in a diary as to who was informed of his arrest. These protection from power must be held to flow from Article 21 and 22 (1) of Constitution.

The frequent instances of police atrocities and custodial deaths, however, continued and pre-empted Supreme Court to issue further guidelines the protecting arrested persons in the case of D.K. Basu v. State of West Bengal (1997) 6 SC 642] which are as under :

(a)    The police personnel carrying out the arrest and handling the interrogation should bear an accurate and clear identification mark with their designation.

(b)    The police officer carrying out the arrest shall prepare the memo of arrest which shall be attested by at least one witness.

(c)    Arrested person shall be entitled to have his friend or relative to be informed of his arrest.

(d)    He must be aware of his right to have someone being informed of his arrest.

(e)    The arrestee must be examined at the time of arrest and every major or minor injury must be recorded.

(f)     The arrestee should be subject to medical examination by a trained doctor every 48 hours.

(g)    The copies of all documents including memo of arrest should be sent to the Magistrate for record.

(h)    The arrestee must be produced before Magistrate within 24 hours.

(i)     He must be permitted to meet a lawyer during interrogation.

(j)     Police control room should be provided at every district and State Headquarters.

All these guidelines were later adopted in the Code by way of 2009 Amendment.

Position after the Amendment: After the amendment of 2009 in Cr. P.C. all these guidelines have been incorporated under following provisions of Cr. PC :

1.     Under Section 41-B, the police officer making the arrest is bound to bear identification mark and prepare memorandum of arrest.

2.     Under Section 41-C, police control rooms are established at state as well as district level

3.     Under Section 41-D, the arrested person shall have access to lawyers during interrogation.

4.     Under Section 50-A, the arrestee is to be entitled to have his friend or relative to be informed of his arrest.

5.     Under Section 54, provisions of his medical examination is made.

6.     Under Section 55A, the police officer is bound to ensure health and safety of the arrested person.

7.     Under Section 41, the offences are divided into two categories, i.e.,

        (a)      Offence punishable with imprisonment for a term up to 7 years [Section 41 (1) (b)].

        (b)     Offence punishable with death, life imprisonment and imprisonment exceeding 7 years. [Section 41(1)(ba)]

In Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, Supreme Court held that no arrest should be made merely because the offence is non-bailable and cognizable. The existence of power of arrest is one thing and the justification for arrest is quite different. No arrest should be made without a reasonable satisfaction as to the genuineness of the allegation.

Court in Arnesh’s case held that before the Magistrate authorizes detention under Section 167 of the Code, he has to be first satisfied that the arrest made is legal and in accordance with the Constitutional rights. If arrest is not in accordance with Section 41 then the Magistrate is duty bound not to authorize further detention of the accused. The court gave the following directions:-

(a)    All the State Government must instruct their police officers that they are not supposed to automatically arrest an accused.

(b)    All police officers must be provided with a checklist containing specified clauses under Section 41 (1) (b) (ii). Failure to do so will render police officer subject to departmental actions.

(c)    The police officer shall forward the checklist furnishing the reasons for arrest to the Magistrate who shall authorize detention after recording its satisfaction otherwise he may also be subject to departmental action.

(d) Failure to comply with the directions will render the police officers for departmental action. They will also be liable to be punished for the contempt of the court.

Author & Former Judge

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