November 29, 2023

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An overview of changes in laws of arrest

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Introduction

Article 21 of the Indian Constitution guarantees protection of the sacred freedoms of life and personal liberty, it further goes on to say that a person shall not be deprived of his/her right to life or personal liberty, except according to the procedure established by law. Hence, a person cannot be arrested until and unless there is a just and legal reason to do so. The arrest can also not be conducted in an arbitrary manner, it needs to follow the procedure of arrest as prescribed by the concerned statute or law.

Defining arrest

“Arrest” can be defined as means of apprehension of a person by legal authority so as to cause deprivation of his liberty, once arrested the person’s liberty lies in the hands of the detainer. As per Farlex Legal Dictionary, ‘Arrest” means “a seizure or forcible restraint, in exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge.” In the notable case of State of Punjab v. Ajaib Singh, the Supreme Court held that arrest can be defined as “A physical restraint put on a person as a result of allegation of accusation that he has committed a crime or an offense of quasi criminal nature.”

Statute governing the arrest laws

The Criminal Procedure Code (CrPC), section 41 to 60 deals with the arrest of a person. Amongst the many reasons for arrest of a person, few of the reasons can include the following  :-

1} When Police officer has valid evidence that a crime has been committed by that particular person

2} Imminent danger of crime being committed – If it appears that the arrested person may commit further offenses, may cause evidence to disappear, prevent proper investigation, may cause threat to any witness or if the need is felt to take person into custody for proper investigation (preventive precautionary measure)

3} Arrest someone who fails to identify themselves and their place of residence

4} To secure presence in trial, if person’s attendance is not likely to been ensured by issuing summons or notice

5} For removing persons who obstruct police officer in execution of his duty

5} In order to recapture a person who had escaped from lawful custody

Further the CrPC is flexible in terms of discretion to arrest persons based on the types of offenses committed, including bailable, non-bailable, cognizable and non-cognizable offenses. Language of the statute also consists of words like reasonable and credible suspicion or investigation prior to arrest, as these are subjective terms they can be used as loopholes by persons in authority, to start arresting people just because they have the power to do so.

Rights of arrested persons under Criminal Procedure Code

Our Constitution guarantees the protection of basic rights and hence evolved the principle ‘innocent until proven guilty’. For conduction of a fair trial the following rights are granted to an arrested person :-

  1. Right to know reason for arrest – Under Section 50(1) of CrPC a person arrested without a warrant needs to be informed by the police officer, the grounds of arrest. The same is reiterated by Article 22 of Indian Constitution.
  2. Right to be produced before magistrate without delay – Section 55 of the CrPC states that a police officer making an arrest without warrant needs to produce the arrested person before magistrate without unnecessary delay. Section 76 further adds on to Section 55 by stating that production before a magistrate needs to be done within 24 hours of the arrest.
  3. Right to be released on bail – Section 50(2) of CrPC states whenever a police officer arrests a person without warrant then he needs to be informed about his right to be released on bail and make arrangements for sureties on his behalf.
  4. Right to consult lawyer – Article 22 of the Indian Constitution provides for this, while Section 41(d) and Section 303 also recognizes these rights.
  5. Right to free legal aid – Section 304 of CrPC states that if the accused is not represented by legal practitioner, or when it appears that the accused does not have sufficient means to appoint a pleader, then the court has to appoint a pleader on behalf of the accused, at the expense of the state. Even the Article 39A of Indian Constitution grants this right to an ‘indigent accused person’.
  6. Right to remain silent – Right against self-incrimination is provided by Article 20(3) of the Indian Constitution. Though presence of an advocate is not allowed during interrogation, prior consultations with advocates should be allowed, where the arrestee should be informed about his rights so that it can help in prevention of abuse of the arrestee.

Changes in existing law

Section 41- A, B, C, D have been added which respectively deal with the notice of appearance in front of police officers, procedure and duties of an officer while making an arrest, control room at districts and rights of arrestee. Certain other sections have been inserted based on the guidelines of supreme court which includes Section 51-A (Obligation of person making arrest to inform about the arrest, etc, to a nominated person), Section 53-A (Examination of person accused of rape by medical practitioners), Section 54 (Examination of arrested person by medical practitioner), Section 54-A (Identification of person arrested), Section 55-A (Health and safety of arrested person) and Section60-A (Arrest to be made strictly according to the code).

References Used :-

1] http://www.legalservicesindia.com/article/1440/Changes-In-The-Laws-Of-Arrest.html

2] https://lawcutor-com.cdn.ampproject.org/v/s/lawcutor.com/2021/10/10/changes-in-the-perspective-of-laws-of-arrest/amp/?amp_gsa=1&amp_js_v=a9&usqp=mq331AQKKAFQArABIIACAw%3D%3D#amp_tf=From%20%251%24s&aoh=16479654555385&referrer=https%3A%2F%2Fwww.google.com&amp share=https%3A%2F%2Flawcutor.com%2F2021%2F10%2F10%2Fchanges-in-the-perspective-of-laws-of-arrest%2F

3] https://www.mondaq.com/india/crime/893728/law-rights-before-arrest-after-arrest-in-india

4] https://blog-ipleaders-in.cdn.ampproject.org/v/s/blog.ipleaders.in/rights-person-arrest-india/?amp=1&amp_gsa=1&amp_js_v=a9&usqp=mq331AQKKAFQArABIIACAw%3D%3D#amp_tf=From%20%251%24s&aoh=16479738778677&referrer=https%3A%2F%2Fwww.google.com&amp share=https%3A%2F%2Fblog.ipleaders.in%2Frights-person-arrest-india%2F

5] https://www.lawsacerdos.com/changes-in-perspective-to-laws-of-arrest/

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