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CRITICAL VIEW OF THE RIGHTS OF ARRESTED PERSONS IN INDIA: CONFORMITY TO COMPARABLE INTERNATIONAL STANDARDS ??

PADMAJA CHAKRAVARTY * Arrest has far reaching consequences; the social status and dignity of an individual suspect becomes at stake, even his discharge cannot blot out the stigma consequent upon arrest There are financial implications for the arrested person and his family. The public suffers its repercussion as we. Naturally, it needs to be ensured that arrests are not effected in a frivolous manner and that the rights of arrested persons are fully guaranteed. Towards this effect, The CrPC lays down safeguards such that the rights of persons enshrined in Art. 21 and 22( 1) are not violated. However, it has been some time before the statutory provisions have been understood in all its implication and they have been given effect to. Mostly the criminal administration system ignores such safeguards and the judiciary for quite some time has been lax about ensuring the proper observance of prisoner's rights So there have been many later declarations and statutory enactments which reaffirm the fiath in the rights of arrested persons. The endeavor is to look into various rights of arrested persons, enshrined in statutes, conventions and judicial pronouncements

Right of Arrested Persons: Law and Policy 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 continous 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 asuthority, custody of another for the purpose of holding or detaining him to answer a criminal charqe". The United Nations Programme on Crime Prevention and Criminal Justice, arrest has been defined as the" ...... the act of depriving a person under governmental authority for the purpose of taking that person into detention and charging the person with a criminal offence". Arrest consists of actual seizure or touching of ~ person's body with a view ot his detention. The pronouncing of words of arrest is not an arrest unless the person sought to be arrested submits to the process and goes with the arresting officer. There are three modes of undertaking arrest: 1. Submission to the custody by word or action 2. Touching the body of the person to be arrested 3. Confining the body of such person Every compulsion or physical restrain is not arrest but when the restraint is total and deprivation of liberty is complete, that would amount to arrest. If a person suppresses or overpowers the voluntary action of another and detains him in a particular place or compels him to go in a specific direction, he is said to imprison that other person. If such detention or imprisonment is in pursuance of any legal authority or apparent legal authority, it would amount to arrest Considering that in some circumstances arrest can be a compelling need, adequate safeguards have to be provided as a matter of policy to ensure that therights of arrested persons are not violated in any circumstances. The law in this area has evolved over a long period of time. Initially the law consisted of provisions in the CrPC which as we shall see later are hardly effective for the purpose they were incorporated. To emphasise the rights of arrested persons, the Cunstitution itself has enshrined the most important of these rights.

Constitutional Protection: Art. 21 prohibits deprivation of life and liberty except within the procedure established by Jaw. It is a guarantee which cannot be suspended even in a state ~f emergency proclaimed under Articles 358 and 359 of the Constitution. Article 22 of the Constitution guarantees that no per;on will be arrested and detained without clear grounds under the law, to be made known to the person, and in all events the arrested would retain the right to consult and be defended by a counsel of choice. Legal Provisions Guaranteeing Rights of Arrested Persons Definition of cognisable offences under S.2.(d) Cr. P.C. makes it clear that the power of arrest is only discretionary and has therefore to be exercised with great caution. Protection from arrest without reasonable suspicion or credible information: The first section that is important in this regard is S. 41 CrPC which enumerates nine categories of cases in which a police officer may arrest a person without obtaining an order from a magistrate and without a warrant This section will have to be read in conjunction with S.154, 155 and 156 of the same code. S. 41 is a depository of general powers of the. police officer to arrest but this power is subject to certain other provisions contained In the Code as well as certain Special statutes to which the Code is made applicable. The powers of the police to arrest a person without a warrant are only confined to such persons who are accused or concerned with the offences or are suspects thereof" Under this section the Code provides a safeguard by laying down that no person may be arrested unless the police offtcer has a reasonable suspicion as to his complicity in the commission of an offence, which in turn has to based on credible information. The interpretaion of the words "police officer", "reasonable" and "credible" have been the mainstay of the protection. The police officer referred to in S.41 must be an officer who is a member of the police force enrolled under the Indian Police Act, 1861. What is a reasonable complaint depends on the facts and circumstances of each case, but itmust at leas be founded on some definite fact tending to throw suspicion on the person arrested,

and not a mere vague surmise or information. Still less have the police any power to arrest persons. as they sometimes appear to do merely on the chance of something being thereafter proved against them. The words "secure" and "reasonable" must have reference to the mind of the person receiving the information and such information must afford sufficient mateials for the exercise of an independent judgment at the time of making the arrest. A police officer may without a warrant arrest on reasonable suspicion, "reasonable" being understood to mean a bonafide belief that an offence has been committed or is about to be committed, necessitating the arrest of the person concerned'. Credible information includes any information which, in the judgement of the officer to whom it is given, appears entitled to credit in the particular Instance and which he believes, and it not be sworn information. There is nothing in this section to suggest that the arresting offie is to be the in all judge of what is reasonable or credible. These must relate to definite averments which the police officer must consider for himself before he acts under these sections. Protection from use of violence during arrest : The second protection is granted by S. 46 of the Code which lays down the procedure for effecting arrest. It provides for arrest in a

manner that does not demean human dignity, social respect and individual liberty. A police officer cannot use force to effect arrest unless the person resists arrests or attempts to evade the arrest as under S. 46. However if the arrestee put up such resistance a case has to be filed immediately under S. 353, 332 and 307 of the CrPC, else it will be deemed that the arrestee did not attempt to hurt the police officer effecting arrest and hence handcuffing or use of other violent means upon him are completely in contravention of the mandate of S. 46. This is a safeguard provided to arrested persons against police atrocities-. Right to Know Substance of Warrant and Charge: S. 55 and S.75 of the Code provide that a person shall be informed of the substance of the arrant of the arrest in cases of non cognizable cases and if required can demand to see the warrant If the substance of the warant is not notified, the arrest shall be deemed to be illegal.

Right 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. S. 56 and S. 76 of the Code provide for this. Right not to be detained for more than 24 hours without judicial scrutiny: This right flows from the above mentioned right and is a logical corollary to S.56. 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 urney of the place of arrest to the magistrates court". Right to be examined by a medical practitioner: S. 54 Cr. P.C. ensures that a person may assert his right to be examined by a registered medical practitioner with a view to assist him in establishing that the offence with which he is charged was not committed by him or that he was subjected to physical injury. Right to be informed right to bail: Every po: ice 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 rnav arrange for sureties on his or her behalf". These are the most basic of rights provided within the Code of Criminal Procedure.

Rights of Arrested Persons: Role of Special Statutes, Local Laws, and Judicial Pronouncements The rights of arrested persons granted under the CrPC are at best rudimentary and have not been effective at all in ensuring the rights guaranteed within the Code itself. A i ok at some of the international standards will show how the rights qiven under the Code are extremely limited and inadequate going by g'obal norms. We shall also look at the special statutes, local

laws and Police Regulations that have been formulated to supplement the Code in this regard and increase available protection to an arrestee. Most importantly we will examin~ the judicial pronouncements that have been crucial in creating new rights to match global standards as well as ensuring effective implementation of existing rights. 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. In light of the increased violations various special statutes, local laws, ordinances and regulations are passed to ensure effective compliance with existing provisions e.g., the Prevention of Terrorism Ordinance, 2001 (no. 9 of 2001) also recognizes this right to consult a legal practitioner Of the arrestee's choice'". Another example IS para 153 of U. P Police Regulations which prescn bes that when any person is arrested in the course of an investigation the Investigating officer shal as the first step in the investigation. subsequent to the arrest, ask him whether he has any complaint to make of ill treatment by the police and shall record in the case diary both question and answer. Similar provisions might be available in the Police Regulations of other states as well. Strict compliance of these provisions would prove a very effective check on the tendency of beating arrested persons by the police. Usually instead of making compliance with these strict they are given a go bye by writing in the general diary that the prisoner makes no complaint of the police officer in a routine manner. National Police Commission has also prescribe guidelines for making arrest". Inspite of all these supplementary provisions violations of the rights of arrested persons continues to be rampant. In view of this the judiciary felt that it was time that they shed the cloak of mere umpires in an adversarial system of prosecution, but became more of activists in creating new rights of arrested persons in keeping with internations standards, and unique national requirements. They also undertook the function of monitoring strict compliance with procedural guidelines. A quick look at some of the most important cases would be fruitful. A person has a right to abstain from saying anything that that is self incriminating.

Question may arise whether examination of the arrested person at the behest of the arresting police officer is violative of the right under Art. 20(3). As laid down in Kathi Kalu Ogad v. State 23, it was held that S. 23 is not violative of constitutional mandate because a person cannot be said to have been compelled "to be a witness" against himself if he is merely required to undergo a medical examination in accordance with the provsions of S 53. This principle has been reaffirmed in Anil Lokhande v. State of Maharashtra. Right to legal counsel This right has been denied more often than 9' anted so the judiciary has laid down in many judgments that denial If this right will result in penal sanctions against the police officer. Deepak Mishra v. State of U.P. emphasized this. It held that under S. 35 FERA, a person may be arrested without being accused. Corresponding provision of the Customs Act is another such provision. Presence of a lawyer has to be there at time interrogation, even if a person is not formally accused but arrested. Art. 22(1) and 20(3) of the constitution of India apply to provisions under FERA and Customs Acts as well. The case of Ram Sarup v. Union of India 26 is illustrative. The right to consult a lawyer is not said to be violated if no lawyer was asked for and none given That right of the arrested person. Upon request, to have someone informed and to consult privately with a lawyer was recognized by S.56(1) of the Police Criminal and Evidence Act, 1984 in England. Right of persons to be treated with dignity during arrest (right against handcuffing) In Sunil Gupta v. State of M.P.27 it was finally held that arrested persons cannot be handcuffed, if they show no tendency to escape. Citizen for Democracy v. State of Assam When the police arrests a person in execution of a warrant of arrest obtained from a Magistrate, the person so arrested shall not be handcuffed unless the police has also obtained orders from the Magistrates for the handcuffing of the person to be so arrested. Where a person is arrested by the police without warrant the police officer concerned may if he is satisfied, on the guidelines provided, that is necessary to handcuff such a person, he may do so tl:l the time he is taken to the police station and thereafter his prod uction before the magistrate. Further use of fetters thereafter can only be on the orders of the Magistrate.

Right to know grounds of arrest Sheela Barse v State of Maharashtra : made it amply clear that as soon as a person IS arrested, he must be apprised of his rights to apply for bail and where the arrest is without a warrant, grounds of his arrest must Immediately be made known to him The State Board of legal Aid and Advice will bring out pamphlets in English. Hindi and other such regional languages, setting out legal rights of an arrested person, printed copies of which will be affixed in each cell in every police lock up and the police authority will read out to the arrested person in the language which he understa-ids as soon as he is brought to the police station. Right of arrestee to let his nearest relative know of his arrest Sheela Barse Case The police must also intimate about the arrest to the nearest legal aid committee, which will take Immediate steps for providing legal assistance at the state cost. For this the state govt. will provide necessary funds. The police must also immediately obtain from the arrested person, the name of any relative or friend, whom he would like to be informed about his arrest and inform his accordingly. In Joginder Kumar v. State of U.P.,31 reiterated the same as being inherent in Article 21 and 22 (1) of the Constitution of India and as required to be recognized and scrupulously protected. The police officer shall inform the arrested person when he is brought to the police station of this right. These protections must be held to be made in the Diary as to who was informed of the arrest. These protections must be held to flow from Articles 21 and 22(1) and enforced strictly. It shall also be the duty of the Magistrate to satisfy himself, When the arrested person is brought before him, that these requirements have been compled with in addition to those in the police manual Right to be told of provision for medical examination: Sheela Barse Case and D. K. Basu v. State of West Bengal emphasized that S.54 provides for examination of an arrested person by a medical practitioner at the request of the arrested person and it is his right but very often he is unable to exercise this right because he is not aware of It even though he may have been tortured in police custody. It is the duty of the Magistrate to inform the arrested person of this right of medical examination in case he has any complaint of torture or maltreatment. The arrestee should be subjected to medical examination every 48 hours during his detention in custody by a

doctor on the panel of approved doctors appointed by the Director, Health Services of the concerned state, Right to be set free if the need for arrest does not adhere to S.41 or 5.110 CrPC This was affirmed in Shyam Oattaray Beturkar v. Spl. Executive Magistrate Kalyan,34 where It was held that a person may be arrested under S 41 (1) if the situtation is of a dangerous nature as perceived under S. 110 Cr. P.C. If no situation of emergency exists, arrest cannot be affected. In the Joginder Kumar Case'" it was further held that no arrest can be made in a routine manner because it is lawful for the police officer to do so. The existence of power to arrest is one thing, the justification for its exercise is quite another. The police officer must be able to justify the arrest apart from his power to do so.

Right to be told who is effecting arrest D. K. Basu v. State of West Bengal,36 laid down clearly the rights of the arrested person at the time of arrest as also after arrest has been affected. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. That the police officer carrying out the arrested shall prepare a memo of arrest at the time of arrest and such memo shall be at tested by at least 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. The requirements referred to above flow from Art. 21 and 22(1) of the

Constitution of India and need to be strictly followed. These would apply with equal force to other governmental agencies to which a reference has been made earlier. These requirements are in addition to the statutory safeguard.

The emphasis on the Constitutional guarantees has been proviced by the judiciary repeatedly. In re, Madhu Limaye and Others.v it was held that Art 22(1) embodies a rule which has always been regarded as vital and fundamental for safeguarding personal liberty in al legal systems, where the rule of law prevaits .: g. USA and UK. The two requirements of Art. 22( 1) are meant [0 aff~rd the earnest opportunity to the arrested person to remove any mistake, misapprehension or msunderstanding in the minds of the arresting minority and also to know exactly what the accusationa~ainst him is. so that he can exercise the right to consult a legal practitioner of his choice and to be defended by him. Maneka Gandhi v. Union of India reaffirmed that the ambit of personal liberty protected by Art.21 is wide and comprehensive. It embraces both substantive rights to personal liberty and the procedure provided for their deprivation. Many of the above referred rights have been the creature of the judiciary. Inspite of teh strict gUidelines issued, violations are rampant as and the laudable efforts are often thwarted as this breed canker of corruption of part of the police. The abortiveare-sts by the police in the course of police investigation and Jots of complaints about the 'tcrute by the police upon innocent persons and partiality towards well of persons sufficiently indicate that the provisions in existence are neither effective nor enough to ensure rights of arrested persons. Most striking in this regard 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 at .the commencement of the Constitution. Indeed, Article 300 says that the said rule whall 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 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. As per law there cannot be arrest of a women after sunset and before sunris>" but this remain the law only in the text and not in reality".

The pel son 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 42 . The time has come when certain trer-ds need to be chanqec. The popular notion that arrested persons lose all rights including fundamental rights the moment they are arrested has to be discarded. In remote areas even mandated procedures are not followed since there is no one to review the situation there. This calls for immediate remedial action The police however allows the arrested person one telephone call imrnediatelyafter arrest as a matter of routine, which is something that is not mentioned anywhere In the Code. Empirical research sugests that it is often a very difficult matter to balance individual and community interest and very often individual liberty may have to be ~actrificed to promote the safety of the community especially with Instances of domestic and interstate terrorism on the rise. However with the recent NHRC guidelines the police are bound to follow certain guidelines and this often fetters their functioning At least in city areas the procedures are followed more strictly. To conclude. the rights of arrested persons are increasingly being guaranteed on paepr and less in reality. Yet there is good amount of public awarencess in this regard which is facilitating various human rights agencies and non profit organizations like the NHRC to ensure compliance with procedure. However as compared to international standards of implementation and guarantee of newer anr' more comprehensive rights, much remains to be done. Some suggestions for reform many be made in the nature of the following: There needs to be a strict regime of education and monitoring of police officials especially at lower levels In remote areas. Today most of the violations occurs as much out of ignorance. Separte body should be set up solely for the purpose of initiating departmental enquiries and vigilancje in this regard. Civil society should bear a greater responsibility and be vigilant about any Instances of violation of human rights in this area and report the same to the nearest judicial officer.

The burden of proof should be shifted on the police to show before the Magistrate 24 hours after arrest that he injury marks were not due totheir manhandling. This and constitufionalisation of rights like examination of the arrested would be a deterrent to police brutality. Therefore, to strike a balance between individual liberty and community interest is neve easy or without their own problems. But to strenghten the foundations of our democracy and to make ture the spirit of our Constitution the two opposing considerations need to be balanced on the fine scale of justice, equity and good conscience.