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lawcommissionoIindia.nic.in/reports/177rptp2.pdI, visited on 19
th
September 2011, at 9:15 p.m.
15
Emp. vs. Sibnath A. 1945 P.C.l56.
Prevention oI Terrorism Act (POTA) 2002; not to mention laws with similar provisions enacted
by the State governments.
16
APTER-III
REOMMENDATIONS BY VARIOUS OMMISSIONS: A PASE OF
IMPROVEMENT IN LAWS OF ARREST AND DETENTION IN INDIA
The problems oI police in this country have been examined extensively by various
commissions and committees appointed since Independence. The appointment oI the
Working Group on Police by the Administrative ReIorms Commission in 1966 was the Iirst
sign oI central government`s interest in the subject. This was Iollowed by the setting up oI
the Gore Committee on Police Training in 1971. Then came the most signiIicant initiative
the appointment oI the Iirst National Police Commission (NPC) aIter Independence.
Recently, the central government again became active. They Iirst set up the Ribeiro
Committee on Police ReIorms in 1998 on the directions oI the Supreme Court and last year
sprang a surprise by the sudden announcement about setting up another committee- the
Padmanabhiah Committee on Police ReIorms. Judged against the present trend and against
16
http://www.hindu.com/op/2004/09/07/stories/2004090700101500.htm, visited on 18
th
September 2011 at 9:20
p.m.
the deIinite need to regulate and control police powers by establishing accountability
structures, which work openly, quickly, eIIectively and impartially and have public
credibility, the Committee`s recommendations on this issue oI major public concern do not
inspire conIidence.
17
Another committee Iormed aIter the padmanabhaiah committee was
the Dharamvir committee. Going by the Dharamvir Commission report (oI 1976) about 200
more police stations are required in Karnataka. We have prepared plan Ior 150 police
stations in next three years. The other issue is basic training as well as in-service training to
improve the proIessional knowledge, skills and attitude oI policemen.
18
Another committee
in this direction was the Mallimath Committee. According to the Committee "quest Ior the
truth shall be the Ioundation oI the Criminal Justice System"
19
. This laudable philosophical
goal is justiIied by an assertion that "For the common man truth and justice are
synonymous"
20
The truth about the Committee however is that it is more concerned about convictions than
about truth or justice. The Committee proceeds on the assumption that "..the system is in
Iavour oI the accused."
21
And it is this assumption that inIorms the discussions and
recommendations in the report.
'More specifically, the aim (of the criminal fustice system) is to reduce the level
of criminality in society by ensuring, maximum detection of reported crimes,
conviction of the accused persons without delay, awarding appropriate
punishments to the convicted to meet the ends of fustice and to prevent
recidivism. (Report, p.21, 1.40, emphasis added)
17
www.humanrightsinitiative.org/programs/aj/.../analysispadmanabhaiah.pdI, visited on 20
th
September 2011, at
2:30 p.m.
18
http://www.deccanherald.com/content/40237/steps-aIoot-improve-morale-eIIiciency.html, visited on 18
th
sepetember, 2011 at 6:00p.m.
19
Report, p.266, (1)
20
Report, p.28
21
Report, p.27, 2.15
APTER- IV
ASES DISUSSED
1. JOGINDER KUMAR V. STATE OF U.P.
22
'The horizon oI human rights is expanding. At the same time, the crime rate is also
increasing. OI late, this court has been receiving complaints about violation oI human
rights because oI indiscriminate arrests. The Supreme Court oI India in Joginder Kumar
v. State oI U.P headed by Justice Venkatchalliah,bench oI Justice Mohan and Justice
Anand gave the judgment that 'No arrest can be made because it is lawIul Ior the police
oIIicer to do so. The existence oI the power to arrest is one thing. The justiIication Ior the
exercise oI it is quite another. The police oIIicer must be able to justiIy the arrest apart
Irom his power to do so. Arrest and detention in police lock-up oI a person can cause
22
AIR 1994 SC 1349.
incalculable harm to the reputation and selI-esteem oI a person. No arrest can be made in
a routine manner on a mere allegation oI commission oI an oIIence made against a
person. It would be prudent Ior a police oIIicer in the interest oI protection oI the
constitutional rights oI a citizen and perhaps in his own interest that no arrest should be
made without a reasonable satisIaction reached aIter some investigation as to the
genuineness and bona Iides oI a complaint and a reasonable belieI both as to the person's
complicity and even so as to the need to eIIect arrest. Denying a person oI his liberty is a
serious matter. 'There must be some reasonable justiIication in the opinion oI the oIIicer
eIIecting the arrest that such arrest is necessary and justiIied. Except in heinous oIIences,
an arrest must be avoided iI a police oIIicer issues notice to person to attend the Station
House and not to leave the Station without permission would do.
23
2. SMT. NANDINI SATPATHY V. P.L. DANI
24
Quoting Lewis Mayers, stated:
'To strike the balance between the needs oI law enIorcement on the one hand and the
protection oI the citizen Irom oppression and injustice at the hands oI the law-
enIorcement machinery on the other is a perennial problem oI statecraIt. 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 oI the conIlicting claims requiring reconciliation. Speaking
pragmatically, there exists a rivalry between societal interest in eIIecting crime detection
and constitutional rights which accused individuals possess. Emphasis may shiIt,
depending on circumstances, in balancing these interests as has been happening in
America. Since Miranda
25
there has been retreat Irom stress on protection oI the accused
and gravitation towards society`s interest in convicting law-breakers. Currently, the trend
23
http://judis.nic.in/supremecourt/qrydisp.asp?tInm11479, visited on 18
th
September 2011 at 5:00p.m.
24
AIR 1978 SC 1025 at page 1032.
25
(1966) 334 US 436.
in the American jurisdiction according to legal journals is that respect Ior (constitutional)
principles is eroded when they leap their proper bounds to interIere with the legitimate
interests oI society in enIorcement oI its laws..
26
. Our constitutional perspective has,
thereIore, to be relative and cannot aIIord to be absolutist, especially when torture
technology, crime escalation and other social variables aIIect the application oI principles
in producing humane justice.
It would equally be relevant to quote para 24, which reads as Iollows:
'The above guidelines are merely the incidents oI personal liberty guaranteed under the
Constitution oI India. No arrest can be made because it is lawIul Ior the Police OIIicer to
do so. The existence oI the power to arrest is one thing. The justiIication Ior the exercise
oI it is quite another. The Police OIIicer must be able to justiIy the arrest apart Irom his
power to do so. Arrest and detention in police lock-up oI a person can cause incalculable
harm to the reputation and selI-esteem oI a person. No arrest can be made in a routine
manner on a mere allegation oI commission oI an oIIence made against a person.
27
3. D.K. BASU V. STATE OF WEST BENGAL
28
Paras 36 to 40 which contain the Iinal directions issued in the said decision read as
Iollows:
'We, thereIore, consider it appropriate to issue the Iollowing requirements to be Iollowed
in all cases oI arrest or detention, till legal provisions are made in that behalI, as
preventive measures:
1. The police personnel carrying out the arrest and handling the interrogation oI the
arrestee should bear accurate, visible and clear identiIication and name tags with their
designations. The particulars oI all such police personnel who handle interrogation oI the
arrestee must be recorded in a register.
2. That the police oIIicer carrying out the arrest oI the arrestee shall prepare a memo oI
arrest at the time oI arrest and such memo shall be attested by at least one witness, who
may be either a member oI the Iamily oI the arrestee or a respectable person oI the
26
Couch v. United States (1972) 409 US 322, 336
27
Law commission oI India consultation paper on law relating to arrest part I law oI arrest Annexure 1.
28
AIR 1997 SC 610.
locality Irom where the arrest is made. It shall also be countersigned by the arrestee and
shall contain the time and date oI arrest.
3. A person who has been arrested or detained and is being held in custody in a police
station or interrogation center or other lock-up, shall be entitled to have one Iriend or
relative or other person known to him or having interest in his welIare being inIormed, as
soon as practicable, that he has been arrested and is being detained at the particular place
unless the attesting witness oI the memo oI arrest is himselI such a Iriend or a relative oI
the arrestee.
4. The time, place oI arrest and venue oI custody oI an arrestee must be notiIied by the
police where the next Iriend or relative oI the arrestee lives outside the district or town
through the Legal Aid Organisation in the District and the police station oI the area
concerned telegraphically within a period oI 8 to 12 hours aIter the arrest.
5. The person arrested must be made aware oI this right to have someone inIormed oI his
arrest or detention as soon as he is put under arrest or is detained.
6. An entry must be made in the diary at the place oI detention regarding the arrest oI the
person which shall also disclose the name oI the next Iriend oI the person who has been
inIormed oI the arrest and the names and particulars oI the police oIIicials in whose
custody the arrestee is.
7. The arrestee should, where he so requests, be also examined at the time oI his arrest
and major and minor injuries, iI 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 oIIicer
eIIecting the arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by a trained doctor every 48
hours during his detention in custody by a doctor on the panel oI approved doctors
appointed by Director, Health Services oI the concerned State or Union Territory,
Director, Health Services should prepare such a panel Ior all Tehsils and Districts as well.
9. Copies oI all the documents including the memo oI arrest, reIerred to above, should be
sent to the Ilaqa Magistrate Ior 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
inIormation regarding the arrest and the place oI custody oI the arrestee shall be
communicated by the oIIicer causing the arrest, within 12 hours oI eIIecting the arrest
and at the police control room it should be displayed on a conspicuous police board.
Failure to comply with the requirements hereinabove mentioned shall apart Irom
rendering the concerned oIIicial liable Ior departmental action, also render him liable to
be punished Ior contempt oI Court and the proceedings Ior contempt oI Court may be
instituted in any High Court oI the country, having territorial jurisdiction over the
matter.
29
4. COMMON CAUSE, A REGISTERED SOCIETY` V. UOI
30
.
5. COMMON CAUSE, A REGISTERED SOCIETY` V. UOI
31
The Supreme Court directed in two cases ommon ause, A Registered Society v. UOI
and ommon ause, A Registered Society v. UOI directed that that undertrial prisoners
whose cases have been pending beyond a particular period should be enlarged on bail or
on personal bond. These directions applied not only to cases pending on the dates oI
those orders but were also eIIective prospectively. The number oI arrests Ior petty
oIIences is substantial, iI not more than the arrests made Ior serious oIIences.
32
6. CHALLA RAMKONDA REDDY V. STATE OF A.P.
33
29
www.alrc.net/doc/mainIile.php/clindia/143, visited on 17
th
September 2011, at 8:00a.m.
30
(1996) 4 SCC 33.
31
1996 (6) SCC 775.
32
supra. As 5
33
AIR 1989 AP 235.
The decision oI A.P. High Court in Challa Ramkonda Reddy v. State oI A.P. which has
recently aIIirmed by the Supreme Court in AIR 2000 SC 2083 - and the examples given
therein, wherein the State would be liable Ior damages Ior the negligent or indiIIerent
conduct oI police/jail authorities should be kept in mind. To put brieIly, take a case where a
person is arrested Ior simple theIt or simple rioting; he is a heart patient; he is not allowed to
take his medicines with him at the time oI his arrest and no medicines are provided to him in
spite oI his asking and he dies. Or a case, where such a person (though carrying his
medicines) suIIers a heart attack and no reasonably prompt steps are taken Ior providing
medical aid to him by the concerned authorities and he dies. It is obvious that had he not
been arrested, his Iamily and Iriends would have taken care oI him. Should he die Ior want oI
medical help, only because he has been arrested and detained Ior a minor oIIence. It would
be too big a punishment. In such cases, State would be liable Ior damages.
34
7. SHAMSHUL KANWAR V. STATE
35
In this case the court pointed out the vagueness prevailing in the country in the matter oI
maintaining the diary under section 172. The court reIerred, in the Iirst instance, to the Iact
that in every State there are Police Regulations/Police Standing Orders prescribing the
manner in which such diaries are to be maintained and that there is no uniIormity among
them. The court pointed out that in some States like Uttar Pradesh, the diary under section
172 is known as special diary` or case diary` and in some other States like Andhra Pradesh
and Tamilnadu, it is known as case diary`. The basis Ior distinction between special diary`
and case diary`, the court pointed out, may owe its origin to the words 'police diary or
otherwise occurring in section 162 CrPC. Such an arrangement would also go to ensure that
the time, place and circumstances oI the arrest oI an accused are also properly recorded and
reIlected by such record, which is indeed a statutory record. ascertained during the
investigation which obviously relate to statements recorded by the oIIicer in terms oI section
34
Supra as 14
33
AIR 1995 SC 1748.
161 and other relevant material gathered during the investigation. In view oI this state oI
aIIairs, the Supreme Court suggested a legislative change to rectiIy this conIusion and
vagueness in the matter oI maintainance oI diary under section 172. It is thereIore appropriate
that section 172 be amended appropriately indicating the manner in which the diary under
section 172 is to be maintained, its contents and the manner in which its contents are
communicated to the court and the superior oIIicers, iI any.
36
APTER-V
ONSTITUTION OF INDIA AND LAW OF ARREST AND
DETENTION
Every person has equal rights subject to certain conditions as prescribed by the
constitution oI India. Even an accused has certain rights which the constitution
guarantees it to him such as Section 50 corresponds to clause (1) oI Article 22 oI the
Constitution creates an obligation upon the police oIIicer to communicate to the person
arrested Iull particulars oI the oIIence Ior which he is arrested or other grounds Ior such
arrest Iorthwith. It also provides that where a person is arrested Ior a bailable oIIence
without a warrant, the police oIIicer shall inIorm the person arrested that he is entitled to
be released on bail and that he may arrange Ior sureties on his behalI; Section 56
36
Supra as 9
corresponds to clause (2) oI Article 22 oI the Constitution, provides that the person
arrested shall not be kept in the custody oI a police oIIicer Ior a longer period than is
reasonable and that in any event such period shall not exceed 24 hours exclusive oI the
time necessary Ior the journey Irom the place oI arrest to the magistrate`s court. OI
course iI the magistrate permits the police oIIicer to keep such person in his custody, he
can do so beyond the period oI 24 hours. Also, Clause (1) oI Article 22 oI the
Constitution which is one oI the Iundamental rights in Part III, declares that 'no person
who is arrested shall be detained in custody without having inIormed, as soon as maybe,
on the grounds Ior such arrest nor shall he be denied the right to consult and to be
deIended by a legal practitioner oI his choice. Clause (2) oI Article 22 says that every
person arrested and detained in custody shall be produced beIore the nearest magistrate
within a period oI 24 hours oI such arrest excluding oI course the time necessary Ior the
journey Irom the place oI arrest to the court oI magistrate. Clause (3) oI 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 Ior preventive detention. 'The rights are
inherent in Articles 21 and 22(1) oI the Constitution and require to be recognized and
scrupulously protected. For eIIective enIorcement oI these Iundamental rights, we issue
the Iollowing requirements:
1. An arrested person being held in custody is entitled, iI he so requests to have one
Iriend relative or other person who is known to him or likely to take an interest in
his welIare told as Iar as is practicable that he has been arrested and where he is
being detained.
2. The Police OIIicer shall inIorm the arrested person when he is brought to the police
station oI this right.
3. An entry shall be required to be made in the Diary as to who was inIormed oI the
arrest. These protections Irom power must be held to Ilow Irom Articles 21 and
22(1) and enIorced strictly.
Also section 300 oI the constitution oI India is taken care oI while deciding the cases like that oI
Kasturilal case.
APTER-VI
ONLUSIONS
Law oI arrest and detention has already well established in India through Chapter- V oI the
CrPC. Still there is a lot more amendments to be made in the laws. For this purpose there were
many committees also Iormed such as Padmanabhaiah committee, Dharmavir Commiittee,
Mallimath committee etc. these committees helped in making suggestions and amendments in
the law oI arrest and detention in India. Also many cases such as Joginder Kumar case, D.K.
Basu case, Neelabati Behera case etc. helped in improvement oI this system.
Basically deIinition oI arrest is nowhere given in CrPC. In very vague sense it means means oI
receiving inIormation. There are deprivation oI basic liberties oI a person.the oIIence committed
by an accused is oI two types cognizable and non cognizable. Non cognizable oIIence gives
power to police to arrest without warrant. According to a report oI law Commission more
oIIences should be made non cognizable. Chapter 5 oI CrPC illustrates the arrest in case oI a non
cognizable oIIence.
Padmanabhaiah committee emphasized on more oI oIIences being cognizable rather thatn non
cognizable. Dharamvir commission described Ior the Iirst time that 43.2 oI arrest are
superIluous. According to the CrPc only police, magistrate and private person can arrest and
there are 11 categories oI persons who can be arrested as prescribed by CrPC.
There are constitutional provisions also which protects the rights oI such accused persons as
under arrest or detention. These involve Article 14, 21, 22(1)(2)(3), and 300 oI the Constitution
oI India.these articles protects and saIeguards the rights oI persons arrested or detained