xxv

CHAPTER - 1 INTRODUCTION

"I object to violence because when it appears to do good, the good

is only temporary, the evil it does is permanent."

-Mahatma Gandhi

1.1 Meaning and Definition

Unfortunately, the term ‘arrest’ have not been defined in the Cr PC, and we must
resort to few dictionaries to appreciate their contours in ordinary and legal parlance.

1.2.1 Meaning and Definition of Arrest

Halsbury’s Law of England defined the term "arrest" in the following terms that
Arrest consists in the seizure or touching of a person's body with a view to his
restraint; words may, however, amount to an arrest if, in the circumstances of the
case, they are calculated to bring, and do bring, to a person's notice that he is under
compulsion and he thereafter submits to the compulsion." Black’s Law Dictionary
has been defined arrest as a seizure or forcible restraint. It is the taking or keeping
of a person in custody by legal authority especially in response to a criminal charge.
Stroud’s Judicial Dictionary defined the arrest in its simplest form as, "Arrest is
when one is taken and restrained from his liberty". Arrest means apprehension,
restraint or deprivation of one’s personal liberty. 1

West's Encyclopedia of American Law 2 also defined in another way the term arrest
to take or hold a suspected criminal with legal authority, as by a law enforcement
officer. An arrest may be made legally based on a warrant issued by a court after
receiving a sworn statement of probable cause to believe there has been a crime
committed by this person, for an apparent crime committed in the presence of the

1
Vol. 11, 4th edition in Para 99.
2
Ed. 2, part V, 2008. 42
Supra note 19.

1
arresting officer, or upon probable cause to believe a crime has been committed by
that person. Once the arrest has been made, the officer must give the arrestee his/her
rights (Miranda rights)42 at the first practical moment, and either cite the person to
appear in court or bring him/her in to jail. A person arrested must be brought before
a judge for arraignment in a short time (e.g. within two business days), and have
his/her bail set. A private "security guard" can’t actually arrest someone except by
citizen's arrest, but can hold someone briefly until a law officer is summoned. A
"citizen's arrest" can be made by any person when a crime has been committed in
his/her presence. However, such selfhelp arrests can lead to lawsuits for "false
arrest" if proved to be mistaken, unjustified or involving unnecessary holding. 3

As per Collins Dictionary of Law 4 arrest means to stop; to seize; to deprive, one of
his liberty by virtue of legal authority. “Arrest in criminal cases means the
apprehending or detaining of the person, in order to be forthcoming to answer an
alleged or suspected crime. The word arrest is more properly used in civil cases,
and apprehension in criminal. A man is arrested under a ‘capias ad respondendum’,
apprehended under a warrant charging him with a larceny.” 5 Arrest means a seizure
or forcible restraint; an 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 or to stop or check the motion, course, or spread
of, to seize or take into custody by authority of the law, to catch and keep (one's
attention, sight, etc.)”6

1.2.1.1 Legal Definition

“The intentional deprivation, whether actual or constructive, of a person’s freedom
by legal authorities using forcible restraint, seizure, or otherwise taking the
individual into custody, especially in response to a warrant or a suspicion based on
probable cause that the person being arrested has committed a crime. The person
making the arrest must have the present power to control the person being arrested.

3
Duhaime’s Law Dictionary online.
4
W. J. Stewart(ed.) 2006 available at: http://legal-dictionary.thefreedictionary.com.
5
John Bouvier, A Law Dictionary, Adapted to the Constitution and Laws of the United States (1856).
6
Available at : http://www.yourdictionary.com/arrest (visited on 13-10-2015).

2
Furthermore, the intent to make an arrest must be communicated to the individual
who is being detained and that person must understand that the seizure or detention
is an intentional arrest.”7Arrest is also understood to use the power of the law to
take and keep (someone, such as a criminal), to stop the progress or movement of
(something), to attract and hold the attention of (someone or something)” 8to take
into custody, to hold back, as of a danger or enemy; check the expansion or
influence of attract and fix”9

1.2.2 Types of Arrest

In general, arrest can be affected with a warrant or without a warrant.

1.2.2.1 Arrest with a Warrant

A warrant is that formal legal document which authorises someone to take arresting
action. In this case, any individual magistrate, judge, judicial officer or, in certain
instances, a senior police officer (depending on domestic legislation) can issue
warrants to a police officer to carry out the arrest of a named individual. 10

1.2.2.2 Arrest without a Warrant

Arrest without a warrant takes place when a person commits a crime –

or attempts to commit a crime – in the presence of a police officer. There

are also some specific exceptions depending on domestic legislation.

In terms of using force to affect arrest, it's important to keep the principles of,

legitimacy, necessity and proportionality in account when arresting a suspect without a

leave.

1.2.3 When is Arrest Allowed?

Whenever a person is arrested, it must be for the contended commission of an

offence. In law enforcement practice, not every contended commission of an

7
Ibid.
8
Available at : http://www.merriam-webster.com/dictionary/ (visited on 13-10-2015).
9
Available at : http://www.vocabulary.com/dictionary/arrest (visited on 13-10-2015).
10
Available at : http://www.leeds.ac.uk/law/hamlyn/arrestor (visited on 14-10-2015).

3
offence automatically leads, or should lead, to the arrest of the person(s)
responsible. There are a number of factors which impact the decision whether to
affect an arrest or not. The graveness and consequences of the offence committed,
combined with the personality and geste , at the time of apprehension, of the
suspect(s) will be introductory considerations. Inescably , the quality and
experience (that is, competence) of law enforcement officers involved will also
have a bearing on the outgrowth of a particular situation in which the discretion
whether or not to arrest is exercised. Away from the prohibition on arbitrary arrest,
international human rights law does not deal as much with when arrest is allowed,
so much as how the arrest process should be conducted if it is decided that it is
lawful.11

1.3 Analysis of the available literature

Analysis of the available literature on law of arrest brings to surface a fact that
although much literature is available on the subject, but it is mainly confined only
to the reference to the judicial decisions on the provisions of the law. Law
commission in various reports has proposed amendment in the law relating to arrest
in India. Our judicial also varied about the practice of third degree torture to extract
the confession. In my case, working of the law of arrest has been evaluated and
assessed through a detailed study in the India. The analysis of available literature
brings out the different aspects in the area of arrest law to stop the illegal, unlawful
detention, custodial violence including deaths, and forced confession in India. Even
our institutions like the Supreme Court, High Courts, Human Right Commission
and Law Commission time to time issue guidelines to stop torture, in spite of the
misuse of power by the police to extract confession is going on. In the works
researcher has tried to find out the weakness of law and reason for this lacuna and
also how law on torture, illegal arrest and custody become helpful for legal system
to speed up the trial.

1.4 Objectives of Research

11
Ibid.

4
The main objective of this research work is to highlight the efficacy and sufficiency
of law of arrest and custody in India and its weakness by putting light on the grey
area of arrest and custody law. The other objectives of the proposed study are as
follows:

1. To critically evaluate the socio-legal aspect of law of arrest.

2. To get knowledge about different facet of law of arrest in different Indian

enactments.

3. To discuss the various necessary requirements of law of arrest in criminal law.

4. To examine the legal lacunas, technical defects and other procedural difficulties in
law of arrest.

5. To discuss the role of Supreme Court and other important institutions like Law
commission in the development of law of arrest .

1.5 Research Methodology

The main purpose of the proposed research work is to analyze the different aspect
of law of arrest in India. It includes the origin, history, philosophy, socio-legal and
new dimension that it has acquired with the development of the society, economy
and new technologies in the modern era. The methodology, which is going to be
adopted for the present research work will be doctrinal and analytical. The present
research work is based on the actual working of arrest in criminal law which is
taking place in these days and has occurred in the past. The reports of various Law
Commissions and other recommendations are part of this research work. Various
cases and guidelines of Supreme Court and High Courts, Human Rights
Commission related to law of arrest has been taken into consideration. The
important reports of United Nations and associated organizations on the issue of
arrest, custody, role of police, criminal justice reforms and custodial violence are
discussed in this research. For this, the researcher has reviewed various legal
commentaries, ancient Indian literature, legal text books, encyclopedia,
dictionaries, digests, treatise, journal, magazines, articles, research papers,

5
newspapers, web material and unpublished thesis on the subject for the purpose of
collecting data and literature for study.

1.6 Hypotheses

Law of arrest and custody is important not only for preventive and investigative
function but also important for an individual. The proposed study is based on
following hypothesis.

1. Arrest of a person adversely affects his fundamental right which is provided by

the Constitution of India.

2. Most of the arrests made under various provisions of criminal law are avoidable
and hence unnecessary.

3. The existing laws relating to arrest of a person are not being followed keeping in
view the rights of human being.

1.6 HISTORICAL PERSPECTIVE

1.6.1 Ancient Indian Law

Administration of justice plays a vital part in the life the citizens of a state. Every
subject matter of the state wants to deal themselves according to the law of the land.
The legal culture of ultramodern India is in a stage of development through its
growing elabolration of constitution and large quantum of legal literacy have the
base of the literature available in colorful directly and laterally in the ancient Indian
heritage. India is known for its rich and vibrant heritage. That heritage of the once
types the healthy legal approach and ethical institutions. The vast and jocund
literatures of ancient India inspired the magnific ideas for the huge practical utility
gathered from the cosmic conglomerate of legal literacy. The Vedas are the roots of
the republic, legal thinking and an immense asset of culture. The literature after the

6
period of Vedas also flourished in the same force over to the end of the ancient
Indian period.12

The political and legal history of ancient India shows that the advancement of law
and order was grounded on the ideals of respect, religion and freedom. Today we
can find laws that ensure the equivalency of all people in a region or state. When
we look at the history of India, we see that there is nothing in the name of justice
and responsibility of the state. We do not find any reference to a palace in Vedic
literature other than King Indra and his council; The division of labor was done for
the smooth functioning of the state. During this period, the victim who wants to
resolve his complaint generally sits in the defendant's house and is not allowed to
move until he (the victim's victim) wishes to be satisfied or the mistake is corrected.
It is done in the presence of neighbors and the decision process is veritably simple.
Therefore, it is an accepted fact that law did not live in a codified and
methodological form in ancient India, but there is no mistrustfulness that the long-
term experience of ancient India has led to the development of a well-designed and
effective system of legal culture. 13

The study of the history of ancient India surely expose that ancient India has
developed the practical styles of the judicial administration grounded on moral and
ethical values and a popular and temporal constitutional administration. In ancient
India, a high position of legal culture was present in the society.

1.6.2 Period of Early Vedas

During the Rigveda, the family (griha or kula) was the ultimative basis of the state.
Each village in kulas refers to a group of several families. The head of the family
was called ‘Kulpati’. Many families formed a village or ‘Gramma’ and the village
leaders were called “Gramini’. Several ‘Grama’ formed a ‘Vis’ (district or clan).

12
Available at: www.indianscriptures.com /vedic-lifestyle (visited on 03-02-2015). 2
Available at: http://ithihas.wordpress.com/2013/10/08 (visited on 03-02-2015).
13
Chakradhar Jha, History and sources of law in ancient India 3 (Ashish Publishing House, New Delhi,
1987).

7
The head of the ‘vis’ was called ‘Visapati’. A group of Vis formed the ‘Jana’ and
“Gopal” as it’s head. Every Jana was under the rule of its chief or King called
‘Rajana’. The king was the head of the state. 14

1.6.2.1 Position and Duties of King

Occasionally, the king was choosen by the Vis. Historical monarchy and repulblic
coexisted at that time. The king had has a great powers and hold an important
position among the people. But he has no power whatsoever. His powers were
limited to the willingness of the people as expressed by the ‘Sabhha’(council of
elders) and Samiti (assembly of the whole people).The king has to perform
numerous duties which has not been define. He must follow his work in every
matters and so he must be very careful before taking any action. 15

1.6.2.2 Chief officials

The king had a many number of ministers or officials for the help in the
administration of the state. There were many types of ministers which are as
follows:

1.Purohita (chief advisor & spiritual teacher); 2. Senani (leader of army); 3.

Gramini; 4. Manishi (chief queen); 5. Suta (record keeper of the King); 6.
Bhagadudha (chief revenue officer); 7. Akshavapa (chief accountant) 8. Ksata (lord
of the Imperial Household); 9. Sangahita (the Exchequer); 10. Gaviksuta (the chief
of forests); 11. Palagla.16

1.6.2.3 Administrative System

The local government listened attentively. Kula is the lowest administrative unit.
The next administrative center is Gramini. The Gramini family was active in the
civil and military sectors. The king also appointed spies to obtain information about
the kingdom.

14
Dr. Mata Prasad, Indian History 21 (Central Law Agency, Allahabad, 2008).
15
Id. at page 22-23.
16
Available at: www.gktoday.in/rig-vedic-polity (visited on 30-03-2015).

8
1.6.2.4 Legal Administration

During the Rivedic period, customs and practices were established as the law of the
state, which the king himself could not ignore. The Wergild system (money paid to
the victims' relatives) was in effect. The purpose of punishment seems to be to
satisfy the victim. Crimes such as theft, extortion, extortion, and highway fraud are
common crimes in society. To be fair, the king is the president. The death penalty is
only for serious crimes. The only discipline for the same crime is imprisonment and
a forfeiture.

1.6.3 Period of Later Vedic

For the study of later vedic period, we are fully dependant on the Samhitas of the
Yajurveda, Samaveda, atharavaveda, The Aranyakas and the Upanishad.

1.6.3.1 Position and Duties of King

The king is mainly responsible for military and judicial affairs. He punishes evil
and upholds the laws of the Kingdom. The king will promote Dharma with the help
of the scepter of righteousness (danda), but he himself is on the scepter of
righteousness. The king is not the source of the law, but merely the approver behind
it. At this time the king was considered the greatest power.

1.6.3.2 Sabha and Samiti

During this period of prosperity, the sabha started functioning as a place for discussion
on public issues and also act as court of justice. 17

1.6.3.3 Ministerial and Administrative Officials

The King was become dependent upon his ministers who were referred to as ‘Viras’
or ‘Ratnis’. The Viras were treated as the jewels of the King. The followings are the
ministers or officials for the help of King:

1.The Purohita; 2. Rajanya (Noble); 3. Manishi (Chief queen); 4. Vavata (Favourite

wife); 5. Parivarikti (Descended wife); 6. Sute (Charioteer); 7. Senani (commander

17
Ibid.

9
of army); 8. Gramani (Village headman); 9. Kshattri (Chamberlain); 10.
Samgrabitri (Treasurer); 11. Bhagdugha (Collector of taxes); 12. Akshavepa
(Superintendent of gambling and dicing). 18

1.6.3.4 Rise of Provincial Government

As the Ottoman Empire grew, local governments also emerged during this period. We
see that the official's name is Sthapati and the state governor is Satapati. Policemen
named Jiva Ghraib from Rig Veda and Ugras from Upanishad are also found in this
period.

1.6.3.5 Judicial Administration

The king upholds the law and Dharma and punishes the wicked. But due to
expansion of business and geographical area, sometimes he gave the power to
Adityaaksha or foreign countries. Gramyavadin or village magistrate rules small
parts of the village. The punishment for the crime is very severe.

1.6.4 Period of Smritis

According to Manu, this covenant is a complete practice that emphasizes virtue and
conduct and defines the behavior of members of the four classes. The Vedas and the
sayings of Smritis are the best authority. According to Manu, Vedas and Smritis are
written laws for all people in the world. The practices praised in the Vedas and
Smirritis are great virtues and must be followed by the Brahman who wishes to
elevate his soul.

1.6.4.1 Five sources of law

1. Vedas- The Vedas are described as ‘Shruti.’ The basic philosophy of the Vedas is
based on the eternal words of the almighty, and is not a human being. Being the
direct word of the God, it can’t be ignored. The Vedas have described the cosmic
law, and the Vedas being the words of God, everyday law has to be based on the
lines of the cosmic law means as per the wish of the God. This philosophy of law
as it is communicated by the God finds in the entire religious book in the world. 19

18
Dr. Mata Prasad, Indian History 31 (Central Law Agency, Allahabad, 2008)
19
The text of the Ten Commandments in the ‘Bible’ starts with the preamble-“God speak all these
words.” The Quran said that the word of God communicated direct to the Prophet

10
2. Smritis- Manusmriti has clarified that Smriti other than Manu are contrary to
Vedas. Smritis are the code of law for the human being.

3. Sheel- The word sheel connotes decency, decorum or etiquette.

4. Conduct of Sadhus- The conduct of sadhu means who is an upright man, never
deflecting from duties is also the source of law.

5. Manah Tushti- Manah tushti (self contentedness) is the last resource of law.47

1.6.4 2 Five Common Rules of Dharma

There are five common rules of Dharma which should be followed:

1. Non indulging in violence against any person

2. Truthfulness

3. Non stealing and non acquiring any wealth through immoral or illegal methods

4. Control of senses and cleanliness of mind and body

5. Conformity of thought, word and deed

1.6.4.3Specification of Laws

Manusmriti also incorporated specific provisions on civil and criminal law as well
as on procedural law. These are distinct from Rajdharma (constitutional law). The
disputes are divided in 18 heads according to the nature of the dispute. The
classification and specification of laws under eighteen topics in Manusmriti was as
follows:

1. Runadana- Payment of debts; 2. Nikshepa- Deposits; 3. Aswamy Vikya- Sale

without ownership; 4. Sambhuya Samuthana- Joint undertakings (Partnership); 5.
Dattasyanapakarama- Resumption of gift; 6. Krayavikrayanusaya- Sale and
purchase; 7. Vetanadana- Payment of wages; 8. Samvidvyatikrama- Violation of
convention of guilds and corporations; 9. Swamipala Vivada- Dispute master and
servant; 10. Simavivada- Boundary dispute; 11. Vakparushya- Defamation, 12.
Dandaparushya- Assault; 13. Steya- Theft; 14. Sahasa- Offence by violence; 15.

11
Strisangrahana- Adultery; 16. Stripumdharma- Duties of husband and wife; 17.
Vibhaga- Partition; 18.
Dyutasamahvaya- Betting and gambling.20

1.6.4.4 Application of Law

This distinction is also proven by law that a civil lawsuit can be brought by the
person whose rights have been violated, not by a third party. On the other hand, the
king or his officials are forbidden to start spreading. However, in case of a crime,
they must conduct the investigation based solely on information. Manusmriti talks
about the special role of the king in controlling crime, finding crimes and punishing
criminals. Manu makes a distinction between legal proceedings and criminal
proceedings. This classification is also used in today's laws. This is the symbol of
Hindu law in ancient India compared to other ancient laws around the world.

1.6.4.5 Criminal Law Procedure

In criminal offences, the proceeding was initiated by the state (King).

1.6.4.6 Duty of the state to detect and punish offenders

a. Persons who commit the offences or who conspire to commit offences are
generally found in assembly houses, hotels, brothels, taverns and victualler’s
shop, festive assemblies, gambling houses, concert rooms, old gardens, forests,
shops of artisans, natural and artificial groves, etc.

b. The King must pos soldiers and spies for patrolling such places and in order to
keep away thieves and other unsocial elements.

c. He should appoint reformed thieves who formerly associated with doubtful

elements and through them offender must be detected and punished. 21

1.6 .4.7 Aiding the offences

20
Out of these, five topics from 11 to 15 and 18 were belonged to the criminal offence and rest of fell
under civil law according to Manusmriti.
21
Manusmriti, IX, 264-267, Available at:www.m.t.hudsoncress.net(visited on 22-03-2105).

12
Manu punishes those who help the criminal to commit the crime. He who knows
how to give fire, food, equipment or shelter to a thief and accepts the stolen goods
will be subject to the king's order as a thief.

1.6.4.8 Exemption of Acts of ‘Steya’

It was declared that the act of seizing someone else's property for a specific purpose
and under certain conditions is not the crime of theft. Feeding cattle, praying, etc.
It is not a crime or crime for anyone to take herbs, oils, flowers and plants from
somewhere for the purpose of doing so.

1.6.4.9 Lighter Punishment for Offence Committed Negligently

Manu prescribed the lighter punishment for the offences committed negligently. He
who forcibly occupies a house, a tank, a garden or a field shall be fined 500 panas.
A fine of 200 panas shall be levied if the same offence was committed out of
negligence or by mistake.22

1.6.4.10 Right of Self- Defence

Any person can slay without hesitation an atatayi (assassin) who

approaches him with murderous intent, whether the assassin is one’s own teacher, a
minor, an aged man or a Brahmin well versed in the Vedas. By killing an assassin
the slayer commits no offence. 23

1.6 .4.11Quantum of Penalty

The Constitution provides that for crimes committed by a judge in court or by the
King, the amount of punishment shall be determined solely by the King at the time
of confession to the King. The King will examine the evidence and circumstances
of the crime to make a decision. These laws make the king appear cautious and wise
in punishing criminals. First of all, it has to be more than acceptable.Then he has to

22
Manusmriti,VIII, 264, Available at:www.m.t.hudsoncress.net(visited on 22-03-2105).
23
Manusmriti,VIII, 350-351, Available at:www.m.t.hudsoncress.net(visited on 22-03-2105),
Kulluka commented on this rule that the right of using the self defence can be used when
there is no time to seek the assistance of the machinery of the state. This right includes the
defence of women and the weak. Mitakshara by Yajnavakya (II-286) holds the same views.

13
see the severity of the offence, and then he has to consider the age, health condition,
the ability to bear the punishment etc. 24

a. The King having fully considered and having due regard to the motive, the
place of occurrence, the ability of the offender to suffer the penalty, and the
nature of the crime, should impose the penalty which the accused deserves.

b. The King punished the offender first gentle admonition, afterwards by harsh
rebuke, thirdly by fine and after that by corporal punishment.

c. If the King imposes penalty on those who are innocent or imposes harsh or
unjust punishments even on those found guilty, he brings on himself great
infamy and after death sinks to hell. 25

1.6.4.12 Abeyance of King’s Order

Legislative power belongs to the king. One should not continue to disobey the king's
instructions. No one shall violate a law made by the King, including doing something
that the King approves or forbidding to do something that he forbids or disapproves.
everything must be followed The reign of the king.

1.6.4.13 Gambling and Betting Prohibition

Gambling and betting were the most harmful for the society. So, the King should
prohibit them in the state. It is common fact that addiction of Gambling and betting
spoil them and cause depression to themselves and to the members of the family. In
Manusmriti, the definition of Gambling and betting has been given that when
inanimate thing are used for staking money on them, it is called Dyuta (gambing),
and when animate beings are used for the same purpose it is called
Samahavaya (betting).26

a. The King should prohibit Gambling and betting. These two vices cause the
destruction of the kingdom.

24
The importance of these considerations while imposing the penalty for the offences is also
recognized in Criminal Procedure Code, 1973 which requires the separate hearing for the
quantum of penalty after pleading the accused guilty.
25
Manusmriti,VIII, 126-128 , Available at:www.m.t.hudsoncress.net(visited on 22-03-2105).
26
Manusmriti,IX, 223, Available at:www.m.t.hudsoncress.net(visited on 22-03-2105).

14
b. Gambling and betting amount to open theft. The King should always exert himself
in suppressing both of them.

c. If such persons dwell in the kingdom, they constantly harass his good subjects.

d. In a former Kalpa this vice of ambling has been seen to cause great enmity, a wise
man therefore should not practice it even for the amusement. 27

1.6.5 Provisions of Public Interest

In the Manusmriti, there are very useful and commendable provisions for
safeguarding public interests and for the interest of the state including the exercise
of social control over the activities of the persons.28

1.6.5.1 Punishment for Failure to Prevent Commission of Offences

When villages were plundered, levees broken, and highways plundered, those who did
not do what they could to help prevent crime were driven out with their goods and
chattels. This law recognizes and establishes the legal responsibility of every citizen
in the public interest to prevent crimes in his or her presence, including damage to any
property. Manu's use of the word "to the best of his ability" indicates that when a
crime occurs, the public expectation is that he will try to prevent the crime or help
reduce the harm by committing the crime.

1.6.5.2 Offences against the State

Manu prescribed the various offences that can be done against the King, residence
of the King and in the kingdom. He also prescribed the punishment for such
offences.

1.6.5.3 Forcibly Entry into Royal Storehouse etc.

A person who breaks into the royal storehouse, armory or a temple and one who
steals horses, elephants or chariots, shall be liable to sentenced to death. 66

27
Manusmriti,IX, 221-222, 226-227, Available at: www.m.t.hudsoncress.net(visited on 22 03-
2105), the commentators of Manusmriti, cite the examples of the King Yudhishtra and Nala
who brought misery both on themselves and their kingdom by resorting to gambling.
28
Available at: www.srimatham.com Manusmriti (visited on 22-02-2105).

15
1.6.5 4 Robbing King’s Treasury and Conspiracy against King

Those who rob the King’s treasury and conspire against King with enemies shall
be liable to death sentence. A like punishment is prescribed for those who persist in
opposing the king’s commands.29

1.6.5.5 Punishment for Giving False Evidence

The wise has prescribed the punishment by imposing fines for the offence of giving
false evidence to prevent the failure of justice. If a witness gives false evidence due
to:

a. Covetousness- fine of 1000 panas

b. Distraction or confusion- fine of the lowest amercement

c. Fear- fine of double the middle amercement

d. Friendship- fine of four times of lowest amercement

e. Lust- fine of ten times of the lowest amercement, but adds that a Brahmana
who gives false evidence must be banished

f. Wrath- fine of three times the middle amercement

g. Ignorance- fine of 200 panas

h. Childishness- fine of 100 panas30

1.6.5.7 Dereliction of Duty by Officers Appointed to Give Protection

Although the rights listed in Section 2.4.6.1 ensure that all citizens have the
responsibility to prevent crime, the rights listed below provide for the punishment
of state leaders if they fail to provide protection to the public when requested.
Officers assigned by the king to protect the states and ships that could not survive
the attack of enemies or soldiers and save citizens were punished in the same way
as men.

29
Manusmriri, IX, 275, Available at:www.m.t.hudsoncress.net(visited on 22-03-2105).
30
Manusmriri,IX,118-122, Available at:www.m.t.hudsoncress.net(visited on 22-03-2105).

16
1.6.6 Rajdharma and Code of Conduct

In chapter VII, Manu defines the significance of King and declares that the King is
God in human form as it is he who gives full protection to the people against
external enemies and internal wrongdoers and look after the welfare of all. He also
prescribed a code of conduct for the ruler.

1.6.6.1 Protection of People is the Highest Duty of King

There are some duties of King for the protection of people.

a. He should protect his subjects as he receives taxes from them.

b. He should protect his subjects from the attack of enemy.

c. He should support all his subjects without discrimination.

d. He should give command to his servants to work for the welfare of the people. 31

e. He should punish officials who are giving the trouble to the people and become
knaves.32

1.6.6.2 Requirement of Punishment

Manu believes that in order to maintain the rule of law, people must fear punishment.
The power to punish must be used effectively and correctly. However, the power of
punishment cannot be used by people without experience and knowledge. Those who
know the Dharma very well can push it. Improper use of the power to punish brings
about the ruin of the king himself. Give positive and appropriate punishment that will
make everyone happy. If this is created without good intentions it can ruin everything.

1.6.7 Period of Ramayana

The conversation between Ram and Bharat in the episode (adhyaya) of Bharat
Milap and Ram after the Exile (Vanvas) shows the constitution of the country at
that time. Asking some questions to Bharat, Ram said: "Always, some people of
wrong religion are accused and because of greed, they are tried without considering
education and knowledge. Evidence of theft is required by some people and when

31
Manusmiti,VII, 143-144,87-88, IX-311,324, Available at : www.m.t.hudsoncress.net(visited on 22-
03-2105).
32
Manusmriti, VII, 123, Available at : www.m.t.hudsoncress.net(visited on 22-03-2105).

17
goods are stolen by someone there are many evidences that can be given as evidence
of theft and men are waived for the truth of money.

All the questions put by Ram shows that at the time of Ramayana, the kings were
very cautious for the good administration of the state. The Ramayana also
mentioned about Rajashastra. It means that there was a developed system of rule of
Law.

Ravana captured Indra (the Heavenly King) and his entire retinue. He also
kidnapped Sita and kept her in an open garden called Ashok Vatika, manned by a
police officer. The head of the police is Trijata. He had great affection for Sita.
Ravana's brothers Vibhishan and Kumbhkarna's wife Mandodari once again insist
Ravana not to capture Sita and tell him to just obey the law and deliver her to Ram.
They also warned him that if he did not do so, his kingdom would be destroyed.
These instances show the police administration and the right and wrong act
in relation to the illegal arrest and detention prevailed at the time of Ramayana.

1.6.8 Period of Mahabharata up to Bhudha period

Every village has its own local judicial system which had the Headman and the
elder people of the village. The courts decided the petty offences such as minor theft
and civil disputes. The Mahabharata speaks of Gramadhipati and the Buddhist Jatakas
mentioned Grambhojka. While actually, the village Headman the
Nagaraguthka was responsible for the arrest and executing robbers. 33

1.6.9 Mauryan Period and Kautilya Arathshatra

In his report, Ashoka clearly stated the following: "In the regime, some people will be
imprisoned and forced, there will also be death in prisons and many prisoners will
suffer for a long time. You should try to be fair to everyone in this regard. Among
these; Characteristics that affect justice; aggression, irritability, rudeness and speed,
indiscipline , is laziness and weakness, and you should strive so that these qualities
do not become the basis of all justice, do not become angry and do not act hastily, the
city's authorities should be careful in this matter; For this purpose, I will send good
wise men to the competition every five years, not harsh and angry, but kind and
gentle.

33
National Police Commission, 1st Report (1979) and Encyclopedia of Police in India (1993).

18
Kautilya does not mention the suffering but gives a gruesome summary of eighteen
tortures to induce confession (mookerji). Kautilya, unfair punishments, improper
treatment of plaintiffs, failure to do everything to verify facts, tampering with
evidence, delaying destruction of documents, providing improper assistance to
witnesses, etc. He preached penalties for judges who neglected their duties, including
Prison officials are accused of detaining prisoners without informing them of the
reasons for their decisions, subjecting them to torture, beatings, depriving them of
food and water, or taking bribes from them. Severe punishments, up to the death
penalty, were permitted for violation of the chastity of imprisoned women.

1.6.9.1 Police administration

It is evident from the history of India that the ancient kings evolved an indigenous
system of policing even before the British thought of a regular police system. Being
a department of the State, Police system was well established during the Imperial
Rule of the Mauryas and Guptas. Kautilya's Arthashastra describes some important
characteristics of modem police system such as vigilance and surveillance. 34

Kautilya defines the four sciences 35 of Anvikshaki,36 The triple Védas (Trayi), 37
Várta (agriculture,cattle-breeding and trade), 38
Danda-Niti (science of
government)39 according to which the administration of the state can be done. Thus
scepter on which the well-being and progress of the sciences of Anvikshaki, the
triple Vedas, and Varta depend is known as Danda (punishment). That which treats
of Danda is the law of punishment or science of government (dandaniti). It is a
means to make acquisitions, to keep them secure, to improve them, and to distribute
among the deserved the profits of improvement. It is on this science of government
that the course of the progress of the world depends. 40

34
Giriraj Shah (ed.), 15 Encyclopedia of Crime, Police and Judicial System 7 (Anmol Publication, New
Delhi, 1999).
35
R. Shamasastry (ed.), Kautilaya, Arathshastra 8 (Government Press, Bangalore, 1915). Manu,
Brihaspati and school of Usanas also declare dandniti (the science of government) as science.
36
Anvikshaki comprises the Philosophy of Sankhya, Yoga, and Lokayata (Atheism).
37
The triple Vedas describe the righteous and unrighteous acts (Dharmadharma).
38
Varta describe wealth and non-wealth.
39
The science of government describe potency and impotency (Balabale), expedient and the inexpedient
(Nayanaya).
40
R. Shamasastry (ed.), Kautilaya, Arathshastra 12 (Government Press, Bangalore, 1915).

19
Kautilya said that for whoever imposes severe punishment becomes repulsive to
the people; while he who awards mild punishment becomes contemptible. But
whoever imposes punishment as deserved becomes respectable.

20
Punishment (danda), if rightly considered, will enable people to devote themselves
to righteousness and work that leads to wealth and pleasure, when time is not
necessary. Punishment in the power of greed, hatred or ignorance will enrage
hermits and forest hermits. of hermits, independently of ordinary people.

Kautilya made the administrative and judicial systems in a very effective way which
was based on the well-organized police system. He divided the police system in the
state:

1. Sangrahana (in the midst of 10 villages); 2. Kharvatika (in the midst of 200
villages); 3. Dronmukha (in the midst of 400 villages); 4. Sthaniya (in the midst of
800 villages)41

There shall be some officials to guard the extremities of the kingdom forts:

1. Antapala (Duty to guard the entrances in to kingdom)

2. Vagurika (Trap-keepers, duty to guard interior of kingdom)

3. Sabara (Archers)

4. Pulinda (Huners)

5. Chandals

6. Aranyachara (Wild tribes)

The provision for construction of well guarded jail with many compartments
and the court (dharmasthiya) has been made in the fort.42

1.6.9.2 Appointment of Spies for Ascertaining the Crime

The state should take measures to protect the state, and the governor should be
responsible for eliminating problems that affect peace. Therefore, the governor
must hire spies to uncover crimes in the country. Their duty is to identify the rights
and wrongs of the villagers or village elders and report them to the village
headman. There are different types of spies: people with supernatural powers,
ascetics, ascetics, earth runners (Chakrachara), bards, clowns, mystics

41
Id. at page 61.
42
Kautilaya, Arathshastra 75 (Government Press, Bangalore, 1915).

21
(Prachchhandaka), astrologers, seers who predict the future, those who can read
good and bad times, doctors, madmen, mutes, deaf people, fools, blind people,
businessmen, painters, carpenters, Musicians, dancers, brewers, pastry, meat and
bread makers.

1.6.9.3 Duty of the Police officers and citizen

1.6.9.3.1 Police’ Duty

In the Arathshastra, Kautilya specified the duties of police officials as well as of

the citizen:

1. The officer in charge of the Capital city (Nagaraka) shall look to the affairs of
the capital.43

2. Wayfarers going along a high rod shall catch hold of any person whom they
find possess of destructive instrument, timidly avoiding the presence of others
and who appears to be a stranger.

3. The guard of gates should not allow the taken out of the dead body through a
gate other than the usual or prescribed one. 44

4. The spies shall ascertain the fair and foul dealings of villagers, or of the
superintendents of villages and report to same. 45

5. The spies shall also make a search for suspicious persons in the interior of
deserted houses, in the workshops or houses of vintners and sellers of cooked

rice and flesh, in gambling houses, and in the abode of heretics.46

1.6.9.3.2 Citizen’s duty

1. Masters of houses shall make a report of strangers arriving at, or departing

from their houses.

43
Id. at page 211. Punished in proportion to the gravity of crime for not making report to the king
about nocturnal nuisance of animate or inanimate nature or shows the carelessness.
44
They shall be punished for fine of 200 Panas.
45
Kautilaya, Arathshastra 299 (Government Press, Bangalore, 1915).
46
Id. at page 206-208.

22
2. The merchants shall make a report of those who sell any merchandise in
forbidden place on time, as well as of those who are in possession of any
merchandise other than their own.

3. Vintners shall make a report of spendthrifts and fool-hardy persons who engage
themselves in risky undertakings.

4. The physician as well as the master of house shall make a report of treatment
of patient of suspicious hurt or illness.

5. Managers of charitable institution shall send information as to any heretics

(Pashanda) and travelers arriving to reside therein. 47

1.6.9.4 Provisions of arrest, custody, detention and confinement

1. When a man keeps under confinement or abducts a prostitute against her will
or disfigures48 her by causing hurt.49

2. Any person shall be arrested in the following cases:

a. Who s abducting the wife or daughter of another

b. One who is carrying off the wealth of another

c. A suspected person

d. One who seem to be of perturbed appearance

e. One who has no baggage.

47
Id. at page 206-208.
48
Torture with prostitute after detention.
49
Kautilaya, Arathshastra 177 (Government Press, Bangalore, 1915).

23
 f. One who has put on a different garb

g. One who has removed or renounced one’s usual garb

h. One who has turned out an ascetic

i. One who pretends to be suffering from disease

j. One who seems to be alarmed

k. One who is stealthily carrying valuable things

l. One who is going on secret mission

m. One who is carrying weapons and explosives (agniyoga)

n. One who holds poison in one’s hand

o. One who has come from a long distance without a pass50

3. Who has been a robber of yoking ropes, whips and other (agricultural)
implements.

4. Traders who conceal the articles as to the loss of which they have already
received information.100

1.6.9.5 Exemption from Arrest

1. The person going out to attend the work of midwifery or medical treatment in
the night

2. The person going out to carry off a dead body to the cremation or burial ground

3. The person going out with a lamp in hand at night

4. The person going out to visit the officer in charge of the city

5. The person going out to find out the cause of a trumpet sound

6. The person going out to extinguish the outbreak of fire

50
R. Shamasastry (ed.), Kautilaya, Arathshastra 181 (Government Press, Bangalore, 1915). 100
Id. at page 303.

24
7. The person going out under the authority of a pass113

1.6.9.6 Procedure after Arrest

The arrested person from the suspicious places or as the perpetrator of a criminal
act shall be examined. 51

The spies can gather information from the youth arrested 52 regarding the past life
of them and of their accomplished. 53The spies can arrest robbers and thieves on the
same pattern. The Collector-general shall exhibit these arrested robbers and
announced to the public that their arrest is due to the instructions obtained from the
king who has learnt the divine art of catching robbers.54

1.6.9.7 Punishment for Unlawful detention

Keeping or causing to keep by forces either men or women in prison shall be

punished with fines from 500 to 1000 panas. Keeping or causing another to keep a
minor in confinement, he shall be punished with a fine of 1000 panas. 55

1.6.9.8 Punishment for False Accusation

Persons who charge an innocent man with theft, or conceal a thief shall themselves
be liable to the punishment of the theft.

1.6.9.9 Acquittal of Prisoners

On the day of the birth star of the king, the prisoners may be acquitted on the
following circumstances:

a. The prisoners who have done the considerable work

b. Of whipping inflicted on them

51
R. Shamasastry (ed.), Kautilaya, Arathshastra 210 (Government Press, Bangalore, 1915).
52
They may be arrested while selling, purchasing or mortgages articles with marks of identification,
or caught hold of while under intoxication brought about by medicinal drinks
(Vogasuramatta).
53
R. Shamasastry (ed.), Kautilaya, Arathshastra 302 (Government Press, Bangalore, 1915).
54
Ibid.
55
R. Shamasastry (ed.), Kautilaya, Arathshastra 274 (Government Press, Bangalore, 1915).

25
c. On payment in gold of adequate ransom

d. When a new country is conquered

e. When an heir apparent is installed on the throne

f. When a prince is born to king 56

1.6.10 Establishment of Administration of Justice

Kautilya describe the establishment of the administration of justice in the cities of

Sangrehene, Dronamukha, and Sthaniya and at places where the districts meets. He
recommended three members acquainted with sacred law (dharmasthas) and three
ministers of the king (Amatyas) in that courts.120

1.6.10.1 Rules for trial

In virtue of his power to uphold the observance of the respective duties of

the four castes and of the four divisions of religious life, and in virtue of his power
to guard against the violation of the Dharmas, the king is the fountain of justice
(dharmapravartaka).Sacred law (Dharma), evidence (Vyavahára), history
(Charitra), and edicts of kings (Rájasásana) are the four legs of Law. Of these four
in order, the later is superior to the one previously named. Dharma is eternal truth
holding its sway over the world; Vyavahára, evidence, is in witnesses; Charitra,
history, is to be found in the tradition (sangraha), of the people; and the order of
kings is what is called sásana. As the duty of a king consists in protecting his
subjects with justice, its observance led him to heaven. He who does not protect his
people or upsets the social order wields his royal scepter (danda) in vain. It is power
and power (danda) alone which, only when exercised by the king with impartiality
and in proportion to guilt either over his son or his enemy, maintains both this world
and the next. The king who administers justice in accordance with sacred law
(Dharma), evidence (vyavahára), history (samsthá) and edicts of kings (Nyáya)
which is the fourth will be able to conquer the whole world bounded by the four
quarters (Chaturantám mahím).121

56
Id. at page 211-212. 120 Id.
at page 213.

26
Whenever there is disagreement between history and sacred law or between
evidence and sacred law, then the matter shall be settled in accordance with sacred
law. But whenever sacred law (sástra) is conflict with rational law (Dharmanyáya
=kings' law), then reason shall be held authoritative; for there the original text (on
which the sacred law has been based) is not available. Selfassertion (svayamváda)
on the part of either of the parties has often been found faulty. Examination
(anuyoga), honesty (árjava), evidence (hetu) and asseveration by oath (sapatha)---
these alone can enable a man to win his cause. Whenever by means of the deposition
of witnesses, the statements of either of the parties are found contradictory, and
whenever the cause of either of the parties is found through the king's spies to be
false, then the decree shall be passed against that party.122

121
R. Shamasastry (ed.), Kautilaya, Arathshastra 217-218 (Government Press, Bangalore,
1915).
122
Ibid.
1.6.11 Sher Shah Suri Period

Sher shah showed no discrimination in the policy of administering justice on any

ground. Sher shah believed, “justice is the most excellent of religious rites, and it is
approved alike by the king of infidels and of the faithful”.

1.6.11.1 Justice and Police Administration

The court was controlled by Qazi and Mir Adil and administered public justice.
Panchayats and Zamindars are still dealing with minor problems in villages and
rural areas. The punishment seems so severe that no one will dare to repeat the same
mistake in the future. Sher Shah's son Islam Shah took a major step forward in the
administration of justice by codifying and standardizing the laws. Just like today's
police force is a continuation of the army of Sher Shah's time. We already know that
Shiqdar-i-Shiqdarin and Shiqdar in Sarkar and Paragana were mainly responsible
for the duties of police law enforcement and decision making with the help of
soldiers. Sher Shah's innovation was to show local responsibility and work for the
welfare of the people. Sher Shah's police officers were praised by everyone. Sher

27
Shah gave utmost importance to the rule of law and order. Fear of Sher Shah
prevented the Zamindars from raising flags against him or harming innocent people
passing through his territory.57

1.6.12 Mughal Period

The nature, structure and functioning of the Mughal administration can be

understand by the study of the following sources: Ain-i-Akbari of Abul Fazl, Dastur-
ul-Amals or official handbooks of the period of Shahjahan and Aurangzeb, Iqbal-
nama Jahangiri by Muhamad Khan, Padshahnamah of Abdul Hamid Lahori, the
Tuzuki Jahangir, and Tabazat-i-Akbari of Nizamuddin provide valuable and useful
information. Besides the above books, the writings of foreigners – Sir
Thomas Roe, Bemier, Hawkins, Manucci, Terry and the Factory records of the
European trading companies also provide necessary information. 58

1.6.12.1 Court Establishment

After the collapse of the Delhi Sultanate in India in 1526, the Mughals began to rule
India. Babur founded the Mughal Empire. His son Humayun ascended the throne
and conquered many parts of India. It is believed that Mughal emperors loved to
create justice and were considered "centers of justice". The emperor established an
independent judiciary called "Mahakuma-e-Adalat". This office must administer
and ensure that justice is administered according to law for all citizens of the
country. It is similar to the Delhi Sultanate in that its laws are also based on the
Quran. According to the Quran, power belongs to Allah and the king is his humble
servant who obeys his will in this world. The king was seen as a saint, a
representative of God Almighty, sent to restore justice to the people of the country.
The judicial and administrative system of the Mughal empire was unique, perfect
and successful in all respects. Let us understand the entire Mughal system in brief.
Although the Mughal emperors had absolute power, they appointed a number of
officials to different departments of the government to solve various problems. The

57
Abbas Khan Sarwani, a Contemporary Historian of the time of Shershah records this.
58
Available at: http://www.raceinstitute.in/rrb-elixir-2-indian-history-part-8/ (visited on 30 08-
2015).

28
main departments of the state are: (a) Royal Department under Khan-i-saman, (b)
Directorate of Finance under Deccan Department, (c) Army Education and Accounts
Department under Mir Bakshi (d) Judiciary (e) Sadr or religious department
donations and charities under the leadership of Sheikh Sadr-Us-Sdur and (f) moral
supervision under the leadership of Sheikh Sadr or Sadr-Us-Sdur Article Qazi is an
important factor in preventing regional incidents. The Qazi must have knowledge of
the Quran and Sunnah and have extensive knowledge of Sharia or Islamic law.
According to Fatawa I Alamgiri, Qazis may sit in the mosque or in an office in the
city center.59

1.6.12.2 Police administration

In rural areas, the Mughal police did not introduce any new regulations for the
prevention and investigation of crime. Since ancient times, these had been carried
out under the leadership of the village headman and his subordinates. The system
provided local security at many levels; during the crisis that lasted until the 19th
century, violence occurred only occasionally. In the cities, all police duties,
including those of public order and decorum, were assigned to the police, whose
duties were as varied as those in the Ayn-i-Akbari, such as (i) finding thieves, (ii)
checking prices and checking the weight. (iii) night and town surveillance, (iv)
keeping lists of buildings, streets and citizens and watching the movements of
strangers, (v) hiring spies to collect information on the state of the society and its
income and expenditure. each group, (vi) collecting and managing the legacy of the
old heritage left by the dead or missing persons, (vii) preventing the slaughter of
cows, buffalos, camels or camels, and (viii) preventing the burning of women. Sir
J.N. Sarkar believes that the long list of tasks is merely the "ideal of Kotwali" and
not the "real situation". But what is clear is that the main task of Xotwali is to ensure
peace and security of citizens in the city. Law and order in a district or saka is usually
administered by the sole commander of the army in the country, such as the
Faujddar, as the name suggests. It must stop small protests and disperse or arrest
terrorists. and attacks All criminal activity using force against tax authorities, judges

59
Ibid.

29
or inspectors should be prohibited." "Although public safety varies across places
and over time," the nature of police regulations has been beneficial in some
respects.. 60

1.6.12.3 Judicial System

Things like modern laws and written laws did not exist in ancient times. Mughal
period. Particularly noteworthy are the Twelve Commandments of Jahagir and the
Fetawa-i-A Xat, the content of Muslim law drafted by the conservatives. Judges
generally follow the rulings or teachings of the Quran, fatwas or previous
interpretations of the Sacred Law made by judges, and the authority of the king.
They often ignore the law and sometimes follow the principles of justice. Most
importantly, the emperor's interpretation was valid as long as they did not oppose
the Mughal rulers, who made swift justice one of their main duties, and their
officials did not receive special protection under the law, in this case the rule of
law.
Peruschi wrote about the rule of Menserat, who was the strictest observer of the
administration of justice, "If I do anything wrong, I expose myself to the court."
The loyalty felt towards other emperors, such as Jahajir and Shah Aurangzeb, is
confirmed by some travellers. Although it was not easy to reach the emperor due to
the influence of various rulers, at least two Mughal emperors, Akbar and Jahajir,
granted them the right to make direct demands (a law won after a hard struggle in
England). He allowed jawans to be hung outside his palace so that petitioners
could express their displeasure with the king. Qazi-ul-Qazat or Sheikh Qadri is the
chief judicial officer in every provincial capital.
He conducted civil and criminal investigations against Hindus and Muslims, and
the Mufti explained Muslim laws and issued decrees. Qazi is important for the
protection of regional issues. The Qadi must know the Quran, the Sunnah and have
a thorough knowledge of sharia or Islamic law. According to Fatwa-i Alamgiri,
Qazi can sit in the mosque or office in the heart of the city.

1.6.13 British Period

The Torture Commission (1855), appointed by the British government to
investigate cases of torture in the Madras Presidency, reported that police torture
was common in the Madras Presidency. The Committee on Justice defines the
term "torture" as "the infliction of pain as punishment for committing a crime or
obtaining a confession." The report emphasizes that abuse is a problem in the
policing profession rather than a negative and unique situation. The

60
Available at: http://www.drgokuleshsharma.com/pdf/mughal%20rule.pdf (visited on 14 10-
2015).

30
recommendations of the Torture Commission formed the basis for the
establishment of the Police Commission in 1860.

1.6.13.1 The Police Commission, 1860

The committee recommended the abolition of the Gendarmerie as a separate

organization and the establishment of a civilian police force in accordance with the
Police Act of 1861. Later, the Indian Penal Code (1860), the Judicial Code,
including the Indian Evidence, and the Penal codes were enacted. Act (1872) and
the Indian Code of Criminal Procedure (1898), which was incorporated into the
Penal Code. 162, 163, 172 and 173 (to be read together with Chapter 24). Provides
punishment for coerced confession or obtaining information while in police custody
that causes injury or serious injury.

1.6.13.2 The Indian Police Commission (1902-03)

Forty years after the 1861 Police Act came into force, the commission
examined police performance. Education and workforce shortages; Insufficient
maintenance; is often viewed as unjust and oppressive; It also caused great damage
to the government and the government. It seems inevitable and urgent. The
commission's recommendation stated that educated Indians should be appointed to
high-ranking officers and kept out of the police station and state crime center (CID),
as well as the law and order commission of inquiry. Create a team. Now, as per the
recommendations of the Police Commission of India, Sub-Inspector police officers
are constituted from officer level. However, over the next decade, there were many
areas of the freedom movement such as the Swadeshi movement and civil strife,
non-cooperation and Caliphate, civil disobedience and the level of unofficial activity
and support given to the anti-Kishan Movement outside India emerged. opting for
coercive solutions over colonial governments investigating grievances as a rural
struggle.

1.6.14 Post-Independence Era

Following independence, the federal government and the state appointed various
police agencies to investigate the activities and activities of the state police
throughout the 1950s, 1960s, early 1970s, and 1980s. Nearly all of these leaders
and committees revealed stories of political manipulation, corruption, and

31
exploitation or abuse of third parties in police custody for support such as research
and educational services. Details include the strength of the police in various
departments in the system, the relationship between the police officer and the
district head, salaries and monetary donations of officers of different ranks,
recruitment requirement, establishment of training centres, etc.

1.6.14.1 Shah Commission (1978)

Shah's office witnessed widespread police brutality during the 1975-1977 State of
Emergency. In its recommendations, the committee asked the government to take
measures to protect the police from political interference and illegal rule. The
National Police Commission (1979-81) conducted a detailed review of police
performance in eight reports. In its first report, the Commission observed:

The police are often criticized for using third-party methods while investigating
suspects or accusations. Police literature in many countries of the world mentions
police violence against suspects in different contexts and the Indian police is no
exception. For a police officer, questioning someone, be it a witness, suspect or
accused, is a difficult and delicate task that requires patience and a deep
understanding of the human mind. Unfortunately, some officers, who are driven by
a fast workload and eager for quick results, resort to different methods of pressure
to force witnesses/accused/accused to reveal all known facts, disregarding the
patient and investigative path. While the law recognizes that police officers must use
force in the performance of their duties in certain situations, such as when dealing
with criminals or apprehending criminals who resist arrest, the use of force is a
serious crime, killing prisoners when they are alone and helpless. ., the most brutal
and hateful act must be condemned in the strongest terms and that is what we have
done. Police reportedly mistreated prisoners.61

1.6.14.2 The National Police Commission 1979-8162

The commission agreed to a judicial investigation into deaths and rapes in police
custody. Judicial proceedings are conducted by additional judges appointed in each

61
Shah Commission Report 1978.
62
The NPC produced eight reports between 1979 and 1981, setting out wide reaching
recommendations.

32
district by the State Government in consultation with the Supreme Court. The
appointed judge will be identified as the District Investigation Agency (DIA) and
will be assisted by an evaluator. DIA must submit an audit report to the state
government. The government must publish the report and decisions based on it
within two months after receiving the report. DIA will also serve as an independent
body overseeing the resolution of complaints handled by the ministry. A public
grievance committee should be established in the state to monitor the effectiveness
of the entire programme. In school districts, unannounced visits by senior officials
to police and similar sites will help identify arrests and injuries. If any violations
are detected during the visit, they must be punished quickly and harshly.
Unfortunately, the valuable recommendations of the National Police Commission
were ignored by the government.

1.6.14.3 Rebeiro Committee (1998)

The Rebelo Commission examined the impact of the National Police Commission's
main recommendations on the transformation of the country. The committee
recommended the creation of the State Police Performance and Performance
Commission and the creation of regional complaints bodies to review a wide range
of public complaints about the police, including arrests and detentions, failure to
respond to crime, and violence control. In addition, the committee also agreed to
separate investigative work from law and order and replace the amendments to the
Police Act 1861 with the new Act.

1.6.14.4 Padhmanabhaiah Committee on Police Reforms (2000)143

The committee noted that the previous committee had emphasized in the
investigation the need to improve the quality of the investigative service and
reduce surveillance of violence. However, the state of forensic science in India
and its use by the police in criminal investigation is deplorable. The committee
therefore recommended that every police station be equipped with a "surveillance
suite" and that every location be equipped with a mobile investigation suite.

1.6.14.5 The Committee on Reforms of the Criminal Justice System

(Malimath
Committee) (2003)

33
The committee considered a number of issues related to law enforcement in general
and law enforcement in particular. The commission examined in detail the main
points of the functioning of criminal law, such as the right to remain silent, the right
of the accused, the rights to the presumption of innocence and the burden of proof,
and justice for victims of crime. Committee observed:

“Manner in which police investigation are conducted is of critical importance to

the functioning of the criminal justice system. Not only serious miscarriage of justice
will result if the collection of evidence is vitiated by error or malpractice, but
successful prosecution of the guilty depends on thorough and careful search for truth
and collection of evidence, whether for or against suspect. Protection of the society
being of paramount consideration, the laws, procedures and police practices must
be such as to ensure that the guilty are apprehended and punished with utmost
dispatch and in the process the innocent are not

implemented. The Committee’s terms of reference were to review action taken to implement
the recommendations of the National Police Commission, the National Human Rights
Commission and the Vohra Committee and to suggest ways and means to implement the
pending recommendations and to make any other recommendations which it considered
necessary. The Committee released two reports. The first report was released in October
1998, which dealt with Supreme Court’s specific concerns. The second report more general
in nature was released in March 1999.
143
Padhmanabhaiah Committee on Police Reforms (2000) was constituted to study, inter alia,
recruitment procedures for the police force, training, duties and responsibilities, police
behaviors, police investigation and prosecution.
harassed. The aim of investigation and in fact, the entire criminal justice system is
to search for truth. To achieve this objective, the investigating officers must be
properly trained and supervised and necessary scientific and logical support should
be made available to them”.63

The Committee further observed, “If tortured, an accused should have the freedom
to apprise the Magistrate of the incident, when produced before him. In such cases,
the magistrate can remand him to judicial custody. This should be true of any

63
Justice Malimath Committee, Committee on Reforms of Criminal Judicial system, 2003.

34
violence or sexual offence perpetrated against an accused person in custody. In all
such cases, there must be a detailed inquiry.” .

1.6.14.6. Police Act Drafting Committee (PADC) 2005

Conscious of the long-standing need for amendments to the Police Act, 1861, the
Government of India constituted the Police Drafting Committee (PADC) in
September 2005 to draft a new Police Act to address law and order issues. In
drafting the Police Act 2006, the commission was motivated by the need in a
democratic society to have a professional police 'service' that is effective, efficient,
works according to the needs of the public and is accountable to the law. The law
addresses the responsibility of the police and states that the police will comply with
the rules of justice and human rights for the protection of disadvantaged groups in
society, especially minority groups. There is also an indication that the makeup of
the police force will reflect diversity. Other important features of administration
include personal work, professional support, important roles, service development,
the role of security in the face of a new threat.

1.7 Structure of the Thesis

This thesis has been arranged in five chapters. A brief description of each chapter is
given below.

Chapter 1: This chapter provides an introduction to the Law of arrest and the
meaning, definitions given by eminent jurists and in the dictionaries, types of arrest
and custody, custodial torture, kinds of torture and methods of torture. The chapter
contains an elaborate discussion on the problem profile, objective of research,
available literature, hypothesis, and research methodology, of the thesis.

This chapter also deals with the historical background and legal framework of the
law of arrest in Ancient India as well as pre independence and post independence of

35
India. This chapter contains a brief discussion of the historical journey of the law of
arrest started from Veda went through from the religion book to legal book. The
chapter highlights that the legal frame of the law of arrest which included detailed
analyses of provisions relating to the law of arrest under various codified law in
British Period and before and after British period. The practical aspect of the law of
arrest is very mysterious for that numerous measures suggested in the various
reports published by law commission of India, National Police Commission,
Malimath committee, etc.

Chapter 2: This chapter highlights the provisions provides in the Constitution of

India for arrest and custody in Article 14, 19,20, 21, 32 and 226. In this chapter,
various case of Supreme Court are highlighted in interpreting the role of
Constitution in protecting the fundamental rights of the citizens against the unlawful
arrest, custody, violence and fake encounter.

Chapter 3: It demonstrates the evaluation of the judicial interpretation of arrest,

custodial violence, custodial death, torture in police station and prisons with under
trial prisoners, handcuffing of the arrestee and extra judicial killings by police
officers by the Supreme Court of India and High Courts. Supreme Court issued
various directions and guidelines in some highlighted cases like Suni Batra v. Delhi
Administration, D.K. Basu v. State of West Bengal,, Prakash Singh v. State and Smt.
Selvi v. State of Karnataka etc. Human Rights Commission role is also described in
the chapter.

Chapter 4: It focuses on the role of International organizations, international

conventions, other countries like USA, Canada and United Kingdom on the law of
arrest and custody. The conventions have the binding force through the adaptation
by India after becoming the member of the conventions.

Chapter 5: This chapter provides a conclusion of the study by summarizing the

findings of the study and on the basis of those findings makes humble suggestions
for the effective functioning of the law of arrest and custody and suggestions to
improve the present working.

36
37
CHAPTER – 2 ARREST: CONSTITUTIONAL PROVISIONS

2.1 General

One of the processes that put a major trouble to the liberty of the existent is that
of arrest. This is veritably important needed in colorful cases for the protection
of the larger interests of the society; at the same time, the same law of arrest can
be misused by the police for the multitudinous crimes that may be committed
before. The police may arrest with or without a leave. Police have powers that
enable them to keep the peace, help crime and cover property from felonious
damage. These powers are lesser than the powers of an ordinary citizen and
include the power to arrest and detain people, gain information, carry out quests,
seize effects and gain relating information similar as DNA.

There are numerous powers of arrest under a leave issued by a judge, and the
rule governing each of them is set out in the enactment creating the power.
Section 41of the Code Criminal Procedure deals with police power of arrest
without a leave. The Abuse of power, torture and inhuman geste

of the police towards common people is common miracle. Ironically, under

section 41 of the Cr PC lots of people have been arrested, either on political
ground or for importunity. numerous of them have failed under police
guardianship. Making a citizen's arrest without precisely considering the threat
factors may have serious unintended consequences for them and others
involved. “Capture and detainment in police cinch- up of a individual can
generate important disservice to the character and tone- respect of a individual.
No arrest can be made in a routine manner on a bare allegation of commission
of an offence made against a person. It would be prudent for a police officer in
the interest of protection of the indigenous rights of a citizen, and maybe in his
own interest, that no arrest should be made without a reasonable satisfaction
reached after some disquisition.

38
The exercise of arrest powers is subject to a test of necessity grounded around
the nature and circumstances of the offence and the interests of the felonious
justice system. Absence of defense for exercising the powers of arrest may lead
to challenges should the case do to court. also it's the only duty of the court to
cover and uphold the introductory mortal rights of the mortal beings of the
society. Arrest can be made on not only in Felonious cases but also in civil cases.
In order to bring arrestee before a Court of Law or else secure of the
administration of the law, an arrest will generally be made. Arrest notifies a
person who has been indicted of a crime and can discourage and admonish
similar persons from committing some further other crimes. ”

To check this type of situation the council has made the provision in Section
157( 1) of the Criminal Procedure Code. But the reality in India is that the
moment a first information report of a cognizable offence is lodged, the bobbies

rush in to arrest, and frequently demand plutocrat for not doing so. There always
remains a need to have a balance between the interests of the society and that
liberty of the existent. How to achieve this balance is the introductory dilemma
that's faced while there's perpetration of the felonious law. This is needed to be
followed at every stage of the perpetration of the process. These safeguards are
handed not only needed to be under the Constitution but also under the colorful
procedural laws. There will be an attempt in this exploration to find whether
there's similar protection handed under colorful laws. The Indian council has
made the specific vittles in colorful enactments for arrest and guardianship of
the malefactors. Side by side, it also specifies the corrections in the correctional
acts.

2.2 Procedural Code

According to procedural law, no formality is demanded during the procedure of

arrest. The arrest can be made by a citizen, a police officer or a Magistrate. The
police officer needs to inform the person being arrested the full particulars of the
person’s offence and that they’re entitled to be released on bail if the offence fits
the criteria for being bailable. The council has specified the procedure of arrest
and guardianship in Criminal Procedure Code, 1973.

2.2.1 Police Power to Arrest of Person Without warrant

The police have the power to arrest the person without leave and order by
Magistrate in the following circumstances

39
Who has been concerned in any cognizable offence, or against whom a
reasonable complaint has been made, or believable information has been
entered, or a reasonable dubitation exists, of his having been so concerned.

Who has in his possession without legal reason, the burden of proving which
excuse shall lie on similar person, any apply of house- breaking.

Who has been placarded as an lawbreaker either under this law or by order of
the State Government.

In whose possession anything is set up which may nicely be suspected to be

stolen property and who may nicely be suspected of having committed an
offence with reference to similar thing.

Who obstructs a police officer while in the prosecution of his duty, or who has
escaped, or attempts to escape, from legal guardianship.

Who's nicely suspected of being a renegade from any of the Armed Forces of
the Union.

Who has been concerned in, or against whom a reasonable complaint has been
made, or believable information has been entered, or a reasonable dubitation

exists, of his having been concerned in, any act committed at any place out of
India which, if committed in India, would have been punishable as an offence,
and for which he is ,under any law to repatriation, or else, liable to restrained or
detained in guardianship in India.

Who, being a released con, commits a breach of any rule made under sub-
section( 5) of section 356.

For whose arrest any importunity, whether written or oral, has been entered from
another police officer, handed that the importunity specifies the person to be
arrested and the offence or other cause for which the arrest is to be made and it

40
appears there from that the person might lawfully be arrested without a leave by
the officer who issued the importunity.

Any officer in charge of a police station may, in like manner, arrest or beget to
be arrested any person, belonging to one or further of the orders of persons
specified in section 109 or section 110. ”

When any person who, in the presence of a police officer, has committed or has
been indicted of committing a non- cognizable offence refuses, on demand of
similar officer, to give his name and hearthstone or gives a name or hearthstone
which similar officer has reason to believe to be false, he may be arrested by
similar officer in order that his name or hearthstone may be caught on .

When the true name and hearthstone of similar person have been caught on he
shall be released on his executing a bond, with or without sureties, to appear
before a Magistrate if so required handed that, if similar person isn't resident in
India, the bond shall be secured by a surety or sureties resident in India.

still, the person from whose guardianship he escaped or was saved may
incontinently pursue and arrest him in any place in India, If a person in legal
guardianship escapes or is saved.

A police officer may arrest a person who commits anon-cognizable offence in

presence of the police and refuses to give his name and address or the

name and address given is believed to be false.

An Officer in Charge of a Police station may arrest without leave any member
of an unlawful assembly who being commanded to disperse shows
determination not to disperse.

Any police officer may arrest without leave a person who can not else be averted
from committing a cognizable offence.

Any police officer may arrest without leave a person who fails to fulfill the
conditions on which a judgment has been suspended or remitted by the
Government.

41
 Procedure of arrest and duties of officer making arrest

Every police officer while making an arrest shall bear an accurate, visible and
clear identification of his name which will facilitate easy identification; prepare
a memorandum of arrest which shall be attested by at least one witness, who is
a member of the family of the person arrested or a respectable member of the
locality where the arrest is made; countersigned by the person arrested; and
inform the person arrested, unless the memorandum is attested by a member of
his family, that he has a right to have a relative or a friend named by him to be
informed of his arrest.64

2.2.2 Procedure when police officer deputes subordinate to arrest without

warrant

When any officer in charge of a police station or any police officer making an
exploration under Chapter XII requires any officer inferior to him to arrest
without a leave( differently than in his presence) any person who may lawfully
be arrested without a leave, he shall deliver to the officer demanded to make the
arrest an order in notation, specifying the person to be arrested and the offence
or other cause for which the arrest is to be made and the officer so demanded
shall, before making the arrest, notify to the person to be arrested the substance
of the order and, if so demanded by analogous person, shall show him the order.
Nothing in sub- section( 1) shall affect the power of a police officer to arrest a
person under section 41.65

64
Section 41 B (Inserted by Code of Criminal Procedure Amendment act, 2008).
65
Section 55 Cr. P.C
.

42
 2.2.2.1 Public when to assist Magistrates and police

Every person is bound to help a Magistrate or police officer nicely demanding

his aid-

in the taking or preventing the escape of any other person whom analogous
Magistrate or police officer is authorised to arrest.

in the prevention or suppression of a breach of the peace.

in the prevention of any injury tried to be committed to any road, conduit,

telegraph or public property.66

2.2.2.2 Public when to Aid to person, other than police officer, executing,
warrant

When a leave is directed to a person other than a police officer, any other
person may prop in the execution of analogous leave, if the person to whom
the leave is directed be near at hand and acting in the execution of the leave. 67

2.2.2.3 Arrest by private person and procedure on such arrest

Any private person may arrest or beget to be arrested any person who in his
presence commits a non- bailable and cognizable offence, or any placarded
offender, and, without gratuitous detention, shall make over or beget to be
made over any person so arrested to a police officer, or, in the absence of a
police officer, take analogous person or beget him to be taken in
custodianship to the nearest police station.

still, a police officer shall re- arrest him, If there is reason to believe that
analogous person comes under the vittles of section 41.

still, and he refuses on the demand of a police officer to give his name and
roof, or gives a name or roof which analogous officer has reason to believe
to be false, If there is reason to believe that he has committed a non-
cognizable offence.

66
Section 37 Cr. P.C
67
Section 38 Cr. P.C
 A private person may arrest without leave any person who is a placarded
offender or who in his view commits anon- bail suitable and cognizable
offence.23

2.2.3 Magistrate Power of arrest

When any offence is committed in the presence of a Magistrate, whether

executive or Judicial, within his original governance, he may himself arrest
or order any person to arrest the offender, and may thus, subject to the vittles
herein contained as to bail, commit the offender to custodianship.

Any Magistrate, whether executive or Judicial, may at any time arrest or

direct the arrest, in his presence, within his original governance, of any
person for whose arrest he is competent at the time and in the circumstances
to issue a leave.

When any person who is bound by any bond taken under this law to appear
before a Court, does not appear, the officer presiding in analogous Court may
issue a leave directing that analogous person be arrested and produced before
him.68

Protection of members of the Armed Forces from arrest

1.Notwithstanding anything contained in sections 41 to 44( both inclusive),

no member of the Armed Forces of the Union shall be arrested for anything
done or purported to be done by him in the discharge of his sanctioned duties
except after carrying the concurrence of the Central Government.

2. The State Government may, by advertisement, direct that the vittles of

sub- section( 1) shall apply to analogue class or order of the members of the
Force charged with the conservation of public order as may be specified
therein, wherever they may be serving, and thus the vittles of that sub-

68
Section 89 Cr. P.C
 section shall apply as if for the expression" Central Government" being
therein, the expression" State Government" were substituted. 69

2.2.4 Procedure of an Arrest: Arrest how made

Section 46 to 53 provides procedure of how an arrest can be made if following

steps:

In making an arrest the police officer or other person making the same shall
actually touch or confine the body of the person to be arrested, unless there's
a submission to the guardianship by word or action.

still, or attempts to shirk the arrest, similar police officer or other person
may use all means necessary to prompt the arrest, If similar person forcefully
resists the bid to arrest him.

Nothing in this section gives a right to beget the death of a person who isn't
indicted of an offence punishable with death or with imprisonment for life.

still, or any police officer having authority to arrest, has reason to believe
that the person to be arrested has entered into, If any person acting under a
leave of arrest.

still, it shall be legal in any case for a person acting under a leave and in any
case in which a leave may issue, but can not be attained without swinging
the person to be arrested an occasion of escape, If doorway to similar place
can not be attained under subsection( 1). handed that, if any similar place is
an apartment in the factual residency of a womanish( not being the person to
be arrested) who, according to custom, doesn't appear in public, similar
person

or police officer shall, before entering similar apartment, give notice to

similar womanish that she's at liberty to withdraw and shall go her every
reasonable installation for withdrawing, and may also break open the
apartment and enter it.

69
Section 45 Cr. P.C
 Any police officer or other person authorised to make an arrest may break
open any external or inner door or window of any house or place in order to
liberate himself or any other person who, having lawfully entered for the
purpose of making an arrest, is detained therein.

A police officer may, for the purpose of arresting without leave any person
whom he's authorised to arrest, pursue similar person into any place in
India.29

The person arrested shall not be subordinated to further restraint than is

necessary to help his escape. 70

2.2.5 Rights of the Person Arrested

Every person who is arrested by police, private citizen or the magistrate has the
following rights:

Person arrested to be informed of grounds of arrest and of right to bail.

Every police officer or other person arresting any person without leave shall
bang communicate to him full particulars of the offence for which he is arrested
or other grounds for analogous arrest.

Where a police officer apprehensions without leave any person other than a
person criminated of a non- bailable offence, he shall inform the person arrested
that he is entitled to be released on bail and that he may arrange for sureties on
his behalf.

The police officer shall place in safe custodianship all papers, other than
necessary wearing- attire, set up upon him and where any composition is seized
from the arrested person, a damage showing the papers taken in possession by
the police officer shall be given to analogous person.

Whenever it's necessary to beget a womanish to be searched, the quest shall be

made by another womanish with strict regard to decency.

A police officer making an arrest without leave shall, without gratuitous

detention and subject to the vittles herein contained as to bail, take or shoot the
person arrested before a Magistrate having governance in the case, or before the
officer in charge of a police station.

70
Section 49 Cr. P.C
 No police officer shall detain in custodianship a person arrested without leave
for a longer period than under all the circumstances of the case is reasonable,
and analogous 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 trip from the place of arrest to the Magistrate’s Court.71

2.2.6 Rights of the Accused for Examination by Medical Practitioner

When a person is arrested on a charge of committing an offence of such a nature

and contended to have been committed under similar circumstances that there
are reasonable grounds for believing that an examination of his person will go
substantiation as to the commission of an offence, it shall be legal for a registered
medical guru, acting at the request of a police officer not below the rank of sub-
inspector, and for any person acting in good faith in his aid and under his
direction, to make such an examination of the person arrested as is nicely
necessary in order to ascertain the data which may go similar substantiation, and
to use similar force as is nicely for that purpose.

Whenever the person of a lady is to be examined under this section, the

examination shall be made only by, or under the supervision of, a womanish
listed medical guru.

Examination of arrested person by medical guru at the request of the arrested

person. When a person who's arrested, whether on a charge or else alleges, at the
time when he's produced before a Magistrate or at any time during the period of
his detention in guardianship that the examination of his body will go
substantiation which will falsify the commission by him of any offence or which
will establish the commission by any other person of any offence against his
body, the Magistrate shall, if requested by the arrested person so to do direct the

36
71
Section 57 Cr. P.C.
Section 53 Cr. P.C
 examination of the body of similar person by a registered medical guru unless
the Magistrate considers that the request is made for the purpose of vexation or
detention or for defeating the ends of justice. 72

2.2.7 Procedure on Issue of Warrant of Arrest

The Chief Judicial Magistrate or a Magistrate of the first class may direct a leave
to any person within his original governance for the arrest of any escaped con,
placarded lawbreaker or of any person who's indicted of a non- bailable, offence
and is escaping arrest.

Similar person shall admit in writing the damage of the leave, and shall execute
it if the person for whose arrest it was issued, is in, or enters on, any land or other
property under his charge.

When the person against whom similar leave is issued is arrested, he shall be
made over with the leave to the nearest police officer, who shall beget him to be
taken before a Magistrate having governance in the case, unless security is taken
under section71.

A leave directed to any police officer may also be executed by any other police
officer whose name is championed upon, the leave by the officer to whom it's
directed or championed.

The police officer or other person executing a leave of arrest shall notify the
substance thereof to the person to be arrested, and, if so needed, shall show him
the leave.

The police officer or other person executing a leave of arrest shall( subject to the
vittles of section 71 as to security) without gratuitous detention bring the person
arrested before the Court before which he's needed by law to produce similar
person handed that similar detention shall not, in any case, exceed twenty- four

38
72
Section 54 Cr. P.C
Section 73 Cr. P.C.
 hours exclusive of the time necessary for the trip from the place of arrest to the
Magistrate Court.73

2.2.8 Recording of Confessions and Statements

Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has

governance in the case, record any concession or statement made to him in the
course of an disquisition under this Chapter or under any other law for the time
being in force, or at any time latterly before the inception of the inquiry or trial;
handed that no concession shall be recorded by a police officer on whom any
power of a Magistrate has been conferred under any law for the time being in
force.

The Magistrate shall, before recording any similar concession, explain to the
person making it that he's not bound to make a concession and that, if he does
so, it may be used as substantiation against him; and the Magistrate shall not
record any similar concession unless, upon questioning the person making it, he
has reason to believe that it's being made freely.

still, the person appearing before the Magistrate states that he's not willing to
make the concession, the Magistrate shall not authorise the detention of similar
person in police guardianship, If at any time before the concession is recorded.

Any similar concession shall be recorded in the manner handed in section 281
for recording the examination of an indicted person and shall be inked by the
person making the concession; and the Magistrate shall make a memorandum at
the bottom of similar record to the following effect- “ I've explained to( name)
that he's not bound to make a concession and that, if he does so, any concession
he may make may be used as substantiation against him and I believe that this
concession was freely made. It was taken in my presence and hail, and was read
over to the person making it and admitted by him to be correct, and it contains a
full and true account of the statement made by him. ”

Any statement( other than a concession) made under sub- section( 1) shall be
recorded in similar manner hereinafter handed for the recording of substantiation

73
Section 76 Cr. P.C
as is, in the opinion of the Magistrate, stylish fitted to the circumstances of the
case; and the Magistrate shall have power to administer pledge to the person
whose statement is so recorded.

2.2.9 Procedure when Investigation cannot be completed in Twenty Four

Hours

Whenever any person is arrested and detained in guardianship and it appears

that the disquisition can not be completed within the period of twenty- four
hours fixed by section 57, and there are grounds for believing that the
blameworthiness or information is well- innovated, the officer in charge of
the police station or the police officer making the disquisition, if he's not
below the rank of sub- inspector, shall bang transmit to the nearest Judicial
Magistrate a dupe of the entries in the journal hereinafter specified relating to
the case, and shall at the same time forward the indicted to similar Magistrate.

The Magistrate to whom an indicted person is encouraged under this section

may, whether he has or has no governance to try the case, from time to time,
authorize the detention of the indicted in similar guardianship as similar
Magistrate thinks fit, for a term not exceeding fifteen days in the total; and if
he has no governance to try the case or commit it for trial, and considers
farther detention gratuitous, he may order the indicted to be encouraged to a

Magistrate having similar governance handed that-

the Magistrate may authorise the detention of the indicted person, else than
in the guardianship of the police, beyond the period of fifteen days; if he's
satisfied that acceptable grounds live for doing so, but no Magistrate shall
authorise the detention of the indicted person in guardianship under this
paragraph for a total period exceeding-

ninety days, where the disquisition relates to an offence punishable with

death, imprisonment for life or imprisonment for a term of not lower than ten
times;
sixty days, where the disquisition relates to any other offence, and, on the
expiry of the said period of ninety days, or sixty days, as the case may be, the
indicted person shall be released on bail if he's prepared to and does furnish
bail, and every person released on bail under this sub- section shall be
supposed to be so released under the vittles of Chapter XXXIII.

No Magistrate shall authorize detention in any guardianship under this section

unless the indicted is produced before him.

No Magistrate of the alternate class, not especially empowered in this behalf

by the High Court, shall authorise detention in the guardianship of the police.

Explanation I- For the avoidance of dubieties, it's hereby declared that,

notwithstanding the expiry of the period specified in paragraph( a), the
indicted shall be detained in guardianship so long as he doesn't furnish bail.

Explanation II- If any question arises whether an indicted person was

produced before the Magistrate as needed under paragraph( b), the product of
the indicted person may be proved by his hand on the order authorizing
detention.

Notwithstanding anything contained in sub- section( 1) or sub- section( 2),

the officer in charge of the police station or the police officer making the
disquisition, if he's not below the rank of a sub- inspector, may, where a
Judicial Magistrate isn't available, transmit to the nearest Administrative
Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan
Magistrate have been conferred, a dupe of the entry in the journal hereinafter
specified relating to the case, and shall, at the same time, further the indicted
to similar Administrative Magistrate, and therefore similar Executive
Magistrate, may, for reasons to be recorded in jotting, authorize the detention
of the indicted person in similar guardianship as he may suppose fit for a term
not exceeding seven days in the total; and, on the expiry of the period of
detention so authorized, the indicted person shall be released on bail except
where an order for farther detention of the indicted person has been made by
a Magistrate competent to make similar order; and, where an order for similar
 farther detention is made, the period during which the indicted person was
detained in guardianship under the orders made by an Executive Magistrate
under this sub- section, shall be taken into account in calculating the period
specified in para- graph( a) of the contingency to sub- section( 2) handed that
before the expiry of the period forenamed, the Executive Magistrate shall
transmit to the nearest Judicial Magistrate the records of the case together
with a dupe of the entries in the journal relating to the case which was
transmitted to him by the officer in charge of the police station or the police
officer making the disquisition, as the case may be.

A Magistrate authorizing under this section detention in the guardianship of the

police shall record his reasons for so doing.

2.3 Indian Penal Code, 1860

The Penal code provides the punishment for wrongfully concealing or keeping
in confinement, kidnapped or abducted person:

Whoever, knowing that any person has been kidnapped or has been abducted,
wrongfully conceals or confines such person, shall be punished in the same
manner as if he had kidnapped or abducted such person with the same
intention or knowledge, or for the same purpose as that with or for which he
conceals or detains such person in confinement.45

Whoever kidnaps or abducts any child under the age of ten years with the
intention of taking dishonestly any movable property from the person of such
child, shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine. 74

Whoever imports, exports, removes, buys, sells or disposes of any person as

a slave, or accepts, receives or detains against his will any person as a slave,
shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine. 75

74
Section 369 IPC.
75
Section 370 IPC.
2.3.1 Offences against Women

Whoever takes or entices away any woman who's and whom he knows or has
reason to believe to be the woman

of any other man, from that man, or from any person having the care of her
on behalf of that man, with intent that she may have lawless intercourse with
any person, or conceals or detains with that intent any similar woman, shall
be penalized with imprisonment of either description for a term which may
extend to two times, or with fine, or with both.

A police officer commits rape-( i) within the limits of the police station to
which he's appointed; or( ii) in the demesne of any station house whether or
not positioned in the police station to which he's appointed; or( iii) on a
woman in his guardianship or in the guardianship of a police officer inferior
to him;

Whoever, being a public menial, takes advantage of his sanctioned position

and induces or seduces, any woman, who's in his guardianship as similar
public menial or in the guardianship of a public menial inferior to him, to
have sexual intercourse with him, similar sexual intercourse not amounting
to the offence of rape, shall be penalized with imprisonment of either
description for a term which shall not be lower than 6 times and extend to ten
times and shall also be liable to fine.50

Whoever, being the supervisor or director of a jail, remand home or other

place of guardianship established by or under any law for the time being in
force or of a woman's or children's institution takes advantage of his
sanctioned position and induces or seduces any womanish capture of similar
jail, remand home, place or institution to have sexual intercourse with him,
similar sexual intercourse not amounting to the offence of rape, shall be
 penalized with imprisonment of either description for a term which shall not
be lower than 6 times and extend to ten times and shall also be liable to fine. 76

2.3.2 Provision of Wrongful Confinement

Whoever wrongfully confines any person shall be penalized with

imprisonment of either description for a term which may extend to one time,
or with fine which may extend to one thousand rupees, or with both.

Whoever wrongfully confines any person for three days, or further, shall be
penalized with imprisonment of either description for a term which may
extend to two times, or with fine, or with both.

Whoever wrongfully confines any person for ten days, or further, shall be
penalized with imprisonment of either description for a term which may
extend to three times, and shall also be liable to fine.

Whoever keeps any person in unlawful confinement, knowing that a writ for
the emancipation of that person has been properly issued, shall be penalized
with imprisonment of either description for a term which may extend to two
times in addition to any term of imprisonment to which he may be liable under
any other section of this Chapter.

Whoever wrongfully confines any person in similar manner as to indicate an

intention that the confinement of similar person may not be known to any
person interested in the person so confined, or to any public menial, or that
the place of similar confinement may not be known to or discovered by any
similar person or public menial as then in before mentioned, shall be
penalized

with imprisonment of either description for a term which may extend to two
times in addition to any other discipline to which he may be liable for similar
unlawful confinement.

76
Section 376 (C) IPC.
 Whoever wrongfully confines any person for the purpose of exacting from
the person confined, or from any person interested in the person confined, any
property or precious security or of constraining the person confined or any
person interested in similar person to do anything. illegal or to give any
information which may grease the commission of an offence, shall be
penalized with imprisonment of either description for a term which may
extend to three times, and shall also be liable to fine.

Whoever wrongfully confines any person for the purpose of exacting from
the person confined or any person interested in the person confined any
concession or any information which may lead to the discovery of an offence
or misconduct, or for the purpose of constraining the person confined or any
person interested in the person confined to restore or to beget the restoration
of any property or precious security or to satisfy any claim or demand, or to
give information which may lead to the restoration of any property or
precious security, shall be penalized with imprisonment of either description
for a term which may extend to three times, and shall also be liable to fine. 77

2.3.3 The Indian Evidence Act, 1872

A substantiation shall not be excused from answering any question as to any

matter applicable to the matter in issue in any suit or in any civil or felonious
proceeding, upon the ground that the answer to similar question will
incriminate, or may tend directly or laterally to criminate, similar
substantiation, or that it'll expose, or tend directly or laterally to expose,
similar substantiation to a penalty or penalty of any kind. handed that no
similar answer, which a substantiation shall be impelled to give, shall subdue
him to any arrest or execution, or be proved against him in any felonious
proceeding, except a execution for giving false substantiation by similar
answer. ”78

77
Section 348 IPC.
78
Section 132 Indian Evidence Act, 1872.
2.4 Provision of Arrest in State/UT Police Acts

2.4.1 Delhi State Police Act

Various State Governments has legislated the police act for the conservation
of the law and order in the state. In that Acts, the provision for the arrest,
guardianship and detention of the persons are fitted to check the crime. It shall
be the duty of every police- officer instantly to observe and execute all orders
and clearances lawfully issued to him by any competent authority; to collect
and communicate intelligence affecting the public peace; to help the
commission of offences and public nuisances; to descry and bring malefactors
to justice and to seize all persons whom he's fairly authorized to apprehend,
and for whose apprehension sufficient ground exists and it shall be legal for
every police- officer, for any of the purposes mentioned in this section,
without a leave, to enter and check any drinking- shop, gamming- house or
other place of resort of loose and unruly characters. ”

The special police establishment shall have throughout any Union home in
relation to the disquisition of similar offences and arrest of persons concerned
in similar offences, all the powers, duties, boons and arrears which police
officers of that Union home have in connection with the disquisition of
offences committed therein.

It shall be legal for any police- officer to lay any information before a
Magistrate, and to apply for a process, leave, hunt- leave or similar other legal
process as may by law issue against any person committing an offence.62

There are certain powers of police- officers in the state to take into
guardianship, without a leave, any person who, within his view, commits any
of similar offences, videlicet

1. Any person who slaughters any cattle or cleans any corpse; any person who
rides or drives any cattle recklessly or furiously, or trains or breaks any steed
or other cattle.

2. Any person who wantonly or cruelly beats, abuses or tortures any beast.
3. Any person who keeps any cattle or vehicle of any kind standing longer,
than is needed, for lading or unloading or for taking up or setting down
passengers, or who leaves any vehicle in such a manner as to beget vexation
or peril to the public.

Any person who throws or lays down any dirt, smut, rubbish or any
monuments or structure accoutrements , or who constructs any cowshed,
stable or the suchlike, or who causes any obnoxious matter to run from any
house, plant, soil- mound or the suchlike.

Any person who's set up drunk or riotous or who's unable of taking care of
himself.

Any person who consciously and indecently exposes his person, or any
obnoxious disfigurement or complaint, or commits nuisance by easing
himself, or by bathing or washing in any tank or force, not being a place set
piecemeal for the purpose.

Any person who neglects to hedge in or properly to cover any well, tank or
other dangerous place or structure. ”

Any police officer of the state has the vast power of arrest hunt and enters in
any house. But if he do this acts without legal authority or reasonable cause
enters or searches, or causes to be entered or searched, any structure, vessel,
roof or place veraciously and unnecessarily detains, quests or apprehensions
any person; or offers any gratuitous particular violence to any person in his
guardianship; or holds out any trouble or pledge not warranted by law, shall,
for every similar offence, on conviction, be penalized with imprisonment for
a term which may extend to six months, or with fine which may extend to
five hundred rupees, or with both. ”

2.4.2 The Oudh Laws Act, 1876

Every village policeman and every road policeman shall arrest all placarded
malefactors, and all persons whom he may find in the act of committing any
offence specified in paragraph( a), clause( 2), of this section and the
 policeman who arrest any person, he shall take him as soon as possible to the
police- station within the governance of which his village or beat is stick. ”

2.4.3 The Identification of Prisoners Act, 1920

If a Magistrate is satisfied that, for the purposes of any investigation or

proceeding under the Code of Criminal Procedure, 1898, it is expedient to
direct any person to allow his measurements or photograph to be taken, he
may make an order to that effect, and in that case the person to whom the
order relates shall be produced or shall attend at the time and place specified
in the order and shall allow his measurements or photograph to be taken, as
the case may be, by a police officer: Provided that no order shall be made
directing any person to be photographed except by a Magistrate of the First
Class: Provided further, that no order shall be made under this section unless
the person has at some time been arrested in connection with such
investigation or proceeding.”79

2.5 National Human Rights Commission Guidelines for Arrest

2.5.1 Guidelines for Encounter Deaths 80

Section 5 The Identification Of Prisoners Act, 1920.

79

March 29, 1997 and revised guidelines December 2, 2003, The Andhra Pradesh Civil Liberties
80

Committee [APCLC] complained to the NHRC that the police was killing people whom
they suspected to be members of the People’s War Group, a militant organisation, in fake
encounters. The police said that the deaths took place when armed militants resisted arrest
but the Andhra Pradesh Civil Liberties Committee insisted that these were extrajudicial
killings amounting to unjustified and unprovoked murders. They gave details of 285 such
incidents. The NHRC was unable to take up all the cases because many of them had
occurred prior to one year, which is the limitation period for taking up complaints by
human rights commissions. Ultimately six cases involving the death of seven people were
taken up by the NHRC and guidelines detailing the procedure in respect of encounter
deaths were issued in 1997.
However, in 2003, the NHRC noting that matters in respect of encounter deaths were not
encouraging - as the guidelines were not being followed in their true spirit - made some
additions to its existing guidelines. The Commission also expressed concern that all states
were not sending information about deaths in encounters and asserted that availability of
As soon as information about death being caused in a police hassle is entered,
the officer in- charge of a police station must record it in the applicable
register.

It's desirable that the disquisition should be handed over to an independent

disquisition agency similar as the Criminal Investigation Department( CID),
if members of the hassle party belong to the same police station.

Whenever a specific complaint is made against the police for committing a

felonious act that amounts to reproachable homicide, an FIR should be
registered under applicable sections of the Indian Penal Code and disquisition
should always be handed over to the CID.

A authoritative inquiry must always be held in all cases where death has
passed in the course of police action. The coming of kin of the dead person
must always be associated with the inquiry.

Prompt execution and correctional action must be initiated against the

officers set up shamefaced in the authoritative inquiry/ police disquisition.

The question of compensation being given to the dependents of the dead

person will depend on the data and circumstances of each case.

No eschewal of turn creation or instant gallantry prices will be given to the

concerned officers soon after the circumstance. It must be assured( at all
costs) that they're given only after the gallantry of the officer concerned is
proven beyond mistrustfulness.

8. A six yearly statement of all cases of deaths in police action in the state shall
be transferred by the Director General of Police to the NHRC by January 15 and
July 15 every time.

proper statistics was necessary for the effective protection of human rights and discharge of the
NHRC.s duties.
 2.5.2 Guidelines for Polygraph [Lie Detector] Tests81

taradiddle sensor tests mustn't be carried out without the concurrence of the
indicted.

still, s he must be given access to a counsel to explain the physical, emotional

and legal counteraccusations of the test, If the indicted levies to take a taradiddle
sensor test. The counteraccusations must also be explained by the police.

concurrence to take a taradiddle sensor test must be recorded before a Judicial

Magistrate.

The justice must take into account, the time the indicted has been in detention
and the nature of her/ his interrogation. This should be done to find out whether
the indicted is being constrained into giving concurrence.

At the time of recording concurrence, the indicted must be represented by a

counsel. The counsel will explain that the statement( given during the test)
doesn't have the status of a confessional statement given to a justice. It'll have
the status of a statement made to the police.

The factual recording of the taradiddle sensor test should be done by/ in an
independent agency( similar as a sanitarium) and in the presence of a counsel.

A full medical and factual history of the manner in which information is entered
must be taken on record.

2.5.3 Guidelines for Arrest

2.5.3.1 Procedure to be followed prior to arrest

The National Human Rights Commission on its part has asserted that
apprehensions in bailable offences must be avoided unless there's a strong
possibility that the person will run down. A police officer must be suitable to
justify an arrest. An arrest without leave can be justified only in the following
circumstances

81
January 11, 2000, Complaints came to the NHRC that the police, without explaining to people,
the full implications of a lie detector test - which requires prior injection a drug - was
making them take it, in violation of their fundamental right against self-incrimination.
Since lie detector or polygraph tests are not regulated by any particular law as such, the
NHRC has laid down guidelines for the conduct of these tests. While issuing these
guidelines, the NHRC followed the principle: .in the absence of a specific law, any
intrusion into fundamental rights must be struck down as constitutionally invidious
violative.
 Where the case involves a grave offence similar as murder, dacoity, thievery,
rapeetc. and it's necessary to arrest the suspect to help her/ him from escaping
or escaping the process of law; and/ or

Where the suspect is given to violent geste and likely to commit further
offences; and/ or

Where the suspect needs to be averted from destroying substantiation;

snooping with substantiations; or advising other suspects who haven't yet
been arrested; and/ or

The suspect is a habitual lawbreaker, who unless arrested is likely to commit

analogous or farther offences.82

2.5.3.2 Procedure to be followed at the time of arrest

Human dignity must be upheld and minimal force should be used while arresting
and searching suspects.

As a rule, use of force should be avoided while making an arrest.

In case the person being arrested offers resistance, minimal force should be
used and care should be taken to see that injuries are avoided.

quality of the arrested person should be defended. Public display or parading

of the arrested person isn't permitted.

Hunt of the arrested person should be carried out with due respect for her/ his
quality and sequestration. quests of women should only be done by women, with
strict regard to decency.156

Women shouldn't be arrested between evening and daylight. As far as

practicable, women police officers should be associated when the person being
arrested is a woman.

Force should noway be used while arresting children or kids. Police officers
should take the help of respectable citizens to insure children and kids aren't
terrorised, and the need to use coercive force doesn't arise.

82
National Police Commission, 3rd Report
 The arrested person should be incontinently informed about the grounds of
arrest in a language s he understands.

In case a person is arrested for a bailable offence, s he must be informed about

her/ his right to be released on bail.

9.Information regarding arrest and detention should be communicated without

detention to the police control room and to the quarter and state headquarters. A
round- the- timepiece monitoring medium should be put in place in this regard. 83

2.5.3.3 Procedure to be followed after arrest

The arrested person should be informed about the grounds of arrest.

She/he must not be denied the right to consult and be defended by legal counsel
of her/his choice.

The arrested person must be produced before the nearest justice within 24 hours.

The arrested person cannot be kept in guardianship for further than 24 hours
without the order of a justice.

2.5.3.4 Procedure in respect of interrogation

Interrogation of an arrested person should be conducted in a easily identifiable

place, which has been notified for the purpose by the government.

The place of interrogation must be accessible. Cousins or a friend of the arrested

person must be informed where she he is being interrogated.

An arrested person should be permitted to meet a counsel at any time during the
interrogation.

83
Section 10 (1) of The Juvenile Justice (Care and Protection of Children) Act, 2000 lays down
that as soon a juvenile in conflict with the law is apprehended by the police, s/he should
be placed under the charge of the special juvenile police unit or the designated police
officer who shall immediately report the matter to a member of the Juvenile Justice Board.
 CHAPTER – 3 ARREST : JUDICIAL APPROACH

3.1 Necessity of Judicial Review

" Mortal rights" as the expression goes, means certain rights which are considered
to be extremely abecedarian for an existent's full physical, internal, social and
spiritual development. mortal rights includes the abecedarian principles of
humanity and these are the rights which every human being is entitled to enjoy on
the base of the fact of being born mortal. surely, the origin of rights, which every
human being is entitled to enjoy by virtue of being a member of mortal society, has
evolved through the history of struggles for the recognition of these rights. In
straight forward words, mortal rights are the rights which every mortal being
possesses by virtue of being a ‘ mortal ’. The dictionary meaning of the word right
is a “ honor ”.

But when it's used in the environment of “ mortal rights ” it's about commodity
more introductory. mortal rights are abecedarian to the stability and development of
countries each around the world. Great significance has been placed on
transnational conventions and their perpetration in order to insure adherence to a
universal standard of adequacy. mortal rights are the abecedarian rights of every
human being against the state or any other public authority as a member of the
mortal family irrespective of any other consideration. therefore, every human being
in the society has the inborn right to live with quality in all circumstances including
arrested and keeping in guardianship by the police.

Rights of an individual in police guardianship are defended substantially by the

Constitution and by colorful other laws like Code of Criminal Procedure and
Protection of Human Rights Act. These rights are also honored by colorful
transnational documents like Universal Declaration of Human Rights3,
International Covenant on Civil and Political Rights, Convention against Torture
and other Cruel, Inhuman or Degrading Treatment or discipline under any Form of
Detention or Imprisonment. The Police are the main law enforcement agency in
India. The police service is under the control of the state governments and Central
Government in the case of Union Territory. The Indian Police Service was
established to make sure the conservation of law and order, apprehension of
malefactors, discovery of crime and generally for the conservation of internal peace
and security. Since, the police plays a veritably important part in a republic not only
with respect to conservation of law and order but also in dealing with the speedy
increase of crime rates in the felonious justice system, policy of police must strive
to achieve the objects like fairness, thickness, forbearance of nonage views, in-
balance in the financial power, political hindrance, moral and other ethical values
which are essential in a society. Being the conspicuous symbol of state authority,
police should see that their dealings aren't affecting the liberty and freedom of
individualities and not infringing the introductory mortal rights values of the
suspects in guardianship, while fulfilling the avowed objects of forestallment and
disquisition of crimes.

There are regular exemplifications where the police, who are handed over with the
duty to apply law and order, are violating the introductory mortal rights. It's an
acknowledged verity that when the police interrogate the suspects in a crime, they
used the third- degree styles. It includes torture either by not recording the arrest or
privation of liberty in the rationale of a prolonged interrogation. colorful judgments
of the court show that during the course of disquisition, worst violations of mortal
rights take place. “ Police is, no mistrustfulness, under a legal duty and has licit
power to arrest a felonious, to interrogate him during the disquisition of an offence
but it must be flashed back that the law doesn't permit use of third degree styles and
torture of indicted in guardianship during interrogation and disquisition of the
crime. In ultramodern popular societies, the mechanisms of operation of public
affairs.

3.2 Judicial Approach

'To strike the balance between the requirements of law enforcement on the one hand
and the protection of the citizen from oppression and injustice at the hands of the
law-enforcement ministry on the other is a imperishable problem of statecraft.
The pendulum over the times has swung to the right."84 “Clearly law is important
in India; it cannot be at the cost of justice. Numerous times court has observed in
this connection that in the area of particular liberty for some time now, this is the

84
Nandini Satpathi v. P.L.Dani (1978) Cri.L.J. 968.
incarnation of the “dynamic indigenous justice” which the Supreme Court is
evolving in this area.”85

“The National Police Commission in its Third Report pretainig to the quality of
arrests by the police in India mentioned power of arrest as one of the chief sources
of corruption in the police. The report suggested that, by and large, nearly 60% of
the arrests were either unnecessary or unjustified and that such unjustified police
action accounted for 43.2% of the expenditure of the jails. The said Commission in
it, observed thus:

"It is obvious that a major portion of the arrests were connected with very minor
prosecutions and cannot, therefore, be regarded as quite necessary from the point of
view of crime prevention. Continued detention in jail of the persons so arrested has
also meant avoidable expenditure on their maintenance. In the above period it was
estimated that 43.2 per cent of the expenditure in the connected jails was over such
prisoners only who in the ultimate analysis need not have been arrested at all." 86
The number of under-trial prisoners was 67.6% of the entire prison population and
that the percentage was unacceptably high. 87

The Supreme Court, while dealing with Composition 21 on mortal rights observed
that" we are really committed to uphold mortal rights indeed as a part of long
standing heritage and as elevated in our indigenous law. We feel that this perspective
needs to be kept in View by every law administering authority because the
recognition of the essential quality and of the equal and inalienable rights of the
citizens is the foundation of freedom, justice and peace in theworld.However, also
the Court should set its face against similar violation of mortal rights by exercising
its majestic judicial authority, If the mortal rights are outraged."

The Supreme Court has over the times, explained and developed the
compass of Fundamental Rights. They've explosively opposed intrusions upon them
by agents of the State, by asserting that the rights and quality of individualities must

85
Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388.
86
The National Police Commission 1980, 3rd Report 31 (Govt. of India, 1980).
87
National Crime Records Bureau (NCRB) statistics (31st December, 2013).
always be upheld. The Court has laid down certain directives for law enforcement.
These directives deal with colorful aspects of police work at the station house or
cutting edge position, similar as enrollment of a case; conduct of an disquisition;
carrying out of an arrest; treatment of an arrested person; entitlement of bail;
questioning of a suspect; and protection of the rights of women, poor and the
underprivileged. They also have the force of law. An officer who consciously or
inadvertently ignores Supreme Court directives can be tried in court under
applicable vittles of the Indian Penal Code and under the disdain of Courts Act,
1971. It's also necessary to give a salutary clarion caution to all Courts, including
High Courts, to be extremely careful and wary in concluding a judgment of the
Supreme Court to be per incuriam.In pursuance of the direction given in D.K.
Basu’s case,

The Bombay High Court in the case Mahesh Gangaram Badgujar v. The State of
Maharastra8889 ordered the initiation of the proceeding under the Contempt of
Courts Act against the police officers guilty of torture and unlawful detention.

3.2.1 Unlawful Arrest

The police utmost of the time arrested the person by violating the vittles of the law
irrespective of the fact that the person arrested may lose his character in the society.
At the time of responsibility on the unlawful arrest, they always take the plea or
reason which ca n’t sustain in any court. In the case of Joginder Kumarv. State
ofU.P, 25 the police has averred that Joginder Kumar was cooperating with them
out of his own free will but the court rejected the plea taken by the police and said
that the law of arrest is one of balancing individual rights, liberties and boons on
the one hand and individual duties, scores and liabilities on the other; of importing

88
Bombay High Court on 15 July, 2016. Para 36, available at: www. indiankanoon.org (visited on 18-
08-2016).
89
AIR 1349, this is a petition under Article 32 of the Constitution of India. The petitioner is as an
advocate. He was arrested and detained while his companions left after being informed that
he would be free later in the day. A few days after, it came to light that the advocate was being
detained without production before any Magistrate by another official who claimed it was in
reference to a case. When the brother of the advocate want to inquired into his well being, it
was found that the advocate had been taken to an undisclosed place. After filing writ petition,
the police claimed that the advocate had been released and there was no question of detaining
him as he was co-operating with the police in some abduction case.
and balancing the rights, liberties of the single existent and those of individualities
inclusively.

Third Report of the National Police Commission identifies unlawful use of arrest
powers as one of the principal sources of corruption in the police and that nearly 60
apprehensions made by police officers are gratuitous and unjustified. explosively
opposing the practice of carrying out magpie apprehensions, the Supreme Court
said that an arrest can not be made simply because it's legal for a police officer to
do so. The actuality of the power to arrest is one thing, the defense for the exercise
of it's relatively another. The police officer must be suitable to justify the arrest.
Arrest and detention in police lock up can beget valuable detriment to the character
and tone- regard of a person. thus, apprehensions shouldn't be made in a routine
manner on bare allegation that a person has committed anoffence.However, they
should see that apprehensions are made only after reaching a reasonable satisfaction
about the complaint being true and the case being bonafide, If police officers don't
wish to face legal or correctional action.Even then, the Court said that the officer
making the arrest must function under a reasonable belief both as to the person's
complicity in committing the offence and the need to affect an arrest.” 90 The
Supreme Court issued the following requirements:

1. “An arrested person being held in custody is entitled, if he so requests to have

one friend, relative or other person who is known to him or likely to take an
interest in his welfare told as far as is practicable that he has been arrested and
where he is being detained.91

2. The police officer shall inform the arrested person when he is brought to the
police station of this right.

90
Joginder Kumar v. State of U.P 1994 AIR 1349 at page 20.
91
Article 22 (1) of the Constitution lays down that no person who is arrested shall be detained in
custody without being informed, as soon as may be, of the grounds of arrest nor shall s/he be denied
the right to consult and be defended by a legal practitioner of choice. 28 Joginder Kumar v. State of
U.P 1994 AIR 1349 at page 21.
3. An entry shall be required to be made in the diary as to who was informed of
the arrest. These protections from power must be held to flow from Articles
21 and 22(1) and enforced strictly.

The Apex court has made the duty of the Magistrate, before whom the arrested
person is produced, to satisfy himself that these conditions have been complied
with. ”

Apprehensions shouldn't be made, unless they're absolutely necessary and there's

no other way except arresting the indicted to insure her/ his presence before the
felonious justice system or to help her/ him from committing further crimes or
tampering with substantiation or intimidating substantiations. gratuitous and
unjustified apprehensions lead to importunity and loss of faith in the system. They
also regard for43.2 expenditure in jails according to the Third Report of the National
Police Commission.

In the case of State of Punjab v. Balbir Singh92the Supreme Court held that the
provisions which require arrests and searches were considered together. Illegality
in arrest was not considered independently. This has given rise to some anomaly.

As regards illegal arrest the rule that emerges out of the formulations of the
Court is that if an arrest has been made in violation of the statutory provisions
regulating arrests it is illegal arrest because it is not in accordance with the
procedure established by the law that the arrest has been made. Thus it may be
violation of Article 21 of the Constitution also. This much seems alright. But what
needs to be examined is the consequence stipulated in the decision that on arrest
being illegal the trial would vitiate and as a necessary result the person would be
entitled to be acquitted of the offence for which he is arrested. 9394 Similar view has
also been taken by Supreme Court in the series of cases like Saiyad Mohd. Saiyad
Umar v. The State of Gujarat,32 Directorate of Revenue & Another v. Mohammed

92
(1994) 3 SCC (3) 299.
93
Ibid.
94
SCC (3) 610.
Nisar Holia 95 and in the latest case of State of Rajasthan v. Jag Raj Singh @
Hansa96

3.2.2 Arrest of Doctors without requirement

The police after entering the complaints from the plaintiff arrested the croakers

without examining the fact. This is only to kill the croakers The arrest of the croaker

without examining the data paralyzed the health sector. It's a matter of common
knowledge that after passing of some unfortunate event, there's a pronounced
tendency to look for a mortal factor to condemn for an untoward event, a tendency
which is nearly linked with the desire to discipline. effects have gone wrong and,
thus, notoriety must be set up to answer for it.

also, in the case of MartinF. D’souzav. Mohd. Ishfaq, the Supreme Court held that
a croaker indicted of negligence shouldn’t be arrested in a routine manner simply
because a charge has been leveled against him. Unless his arrest is necessary for
incubating the disquisition or for collecting substantiation or unless the probing
officer feels satisfied that the croaker

progressed against would not make himself available to face the execution unless
arrested, the arrest should be withheld. The Supreme Court has directed that

1. whenever a complaint is entered against a croaker

or sanitarium by the Consumer Forum( whether District, State or National) or by

the Criminal Court also before issuing notice to the croaker

or sanitarium against whom the complaint was made the Consumer Forum or
Criminal Court should first relate the matter to a competent croaker

or commission of croakers , specialized in the field relating to which the medical

negligence is attributed.

95
(2008) 2 SCC 370.
96
Supreme Court of India on 29 June, 2016, available at: www. indiankanoon.org (visited on 18-08-
2016).
2. Only after that croaker or commission reports that there’s a prima facie case of
medical negligence should notice be also issued to the concerned croaker /
sanitarium.

This is necessary to avoid importunity to croakers who may not be eventually set
up to be careless. The court further warns the police officers not to arrest or kill
croaker sunless the data easily come within the parameters laid down in Jacob
Mathew’s case, else the bobbies will themelves have to face legal action.”

In the case of Jacob Mathew, the court issued the following directions:

1. A private complaint may not be entertained unless the complainant has

produced prima facie evidence before the Court in the form of a credible
opinion given by another competent doctor to support the charge of rashness or
negligence on the part of the accused doctor.

2. The investigating officer should, before proceeding against the doctor accused
of rash or negligent act or omission, obtain an independent and competent
medical opinion preferably from a doctor in government service qualified in
that branch of medical practice who can normally be expected to give an
impartial and unbiased opinion applying Bolam's test to the facts collected in
the investigation.

3. A doctor accused of rashness or negligence, may not be arrested in a routine

manner (simply because a charge has been leveled against him). Unless his
arrest is necessary for furthering the investigation or for collecting evidence or
unless the investigation officer feels satisfied that the doctor proceeded against
would not make himself available to face the prosecution unless arrested, the
arrest may be withheld.97

The Apex court has delivered many cases on the same footing like Ram

97
I Martin F. D’souza v. Mohd. Ishfaq 2009 (2) RCR ( Criminal) at Para 54 (iii).
Chander v. Monika Chaudhary and others 98
and A.S.V. Narayan Rao v.
Ratanamala and another.99 But the Apex court also held that a professional may be
held liable for negligence on one of the two findings: either he was not possessed
of the requisite skill which he professed to have possessed, or, he did not exercise,
with reasonable competence in the given case, the skill which he did possess. The
standard to be applied for judging, whether the person charged has been negligent
or not, would be that of an ordinary competent person exercising ordinary skill in
that profession. 100 In the case of Harmeet Paul Singh and Another v. State of
Punjab 101 the court considered many cases of apex court and held that the
summoning order has been passed only on the basis of oral statement of the
complainant and other witnesses without having opinion by the Board of Doctors
or other expert doctor as nothing has been mentioned in the complaint. So, the
complaint and summoning order of court are set aside.

3.2.3 Writ of Habeas Corpus, Arrest

The High Courts have the power to order the state to produce the arrested person
before the court under Article 32 irrespective of the nature of the arrest. The arrest
may by legal but the authority that arrested the person has to justify the arrest before
the honorable court. In the case of Kultej Singh v. Circle Inspector of Police &
others58 the Hon’ble High Court has laid down that from a reading of sub 102-section
(1) of Section 46103 of the Cr.P.C.it is clear that a police officer while making arrest

98
Punjab and Haryana HC on 20 August, 2013, available at: www. indiankanoon.org (visited on 18-
03-2016).
99
2013(4) RCR (Criminal) 413.
100
Jacob Mathew v. State of Punjab & Anothers 2005 (3) RCR (Criminal) 836, Para 3 of guidelines.
101
Punjab and Haryana HC on 16 Sep., 2014, available at: www. indiankanoon.org (visited on 18-03-
2016).
102
.09.1990 and was produced before the J.F.M.C. Savanur on 29.09.1990 without any loss
of time, however they did not dispute that Sh. Hardeep Singh was kept in Savanur Police
Station from the morning of 27.0'9.1990' until he was produced before, the Magistrate as
Savanur on 29.0'9.1990 at 10'.30 a.m.
103
In making an arrest the police officer or other person making the same shall actually touch or
confine the body of the person to be arrested, unless there be a submission to the custody by
word or action. If such person forcibly resists the endeavour to arrest him, or attempts to
evade the arrest, such police officer or other person may use all means necessary to effect the
arrest. Nothing in this section gives a right to cause the death of a person who is not accused
of an offence punishable with death or with imprisonment for life.
even if he actually touches the body of the person to be arrested, he can be said to
have arrested the person. I Still, it would really be a case of arrest, If a person is
confined or kept in the police station or his movements are confined within the
firmaments of a police station. In the instant case, the FIR specifically states that
Hardeep Singh was kept in the police station from the morning of27.9.1990. Section
57 of theCr.P.C. provides that no police officer shall detain in guardianship a person
arrested without leave for a longer period than under all the circumstances of the
case is reasonable and similar 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 trip from the place of arrest to the Magistrate's court. ”

occasionally, the police released the arrested person but the question remained left
in the mind of the person that the police officer who arrested a person immorally,
can be held shamefaced and be penalized according to the law of the state. This
question has got the answer in affirmative in the case of Arvinder Singh Baggav.
State of UP and Others. In this case, a girl was in Police Custody and a writ
solicitation for Habeas Corpus was filled in the Supreme Court. The Court held that
at the time the solicitation was moved, the girl was in police guardianship. She has
ago been released. But, we're hysterical this can not be the end of the matter. The
writ solicitation shall continue as one for good habeas corpus for examining the
legitimacy of the detention for determining whether the supplicant is entitled to be
compensated for the illegal detention as a public law remedy for violation of her
abecedarian rights under Composition 21 of the Constitution relatively piecemeal
from felonious or civil liability which may be pursued in the ordinary course. ”

The Gujarat High Court has cleared in the case Whether this case involves Av. State
of Gujarat that the victim has given the torture and handled with atrocity in the
guardianship. The Court award the cost ofRs. 15000/- and also held that the victim
can initiate the felonious or civil proceeding against the police officer piecemeal
from the compensation granted by the court. In Sri Thaniyappa Purushav. State of
Karnataka, the High Court held that it would clearly amount to an illegality in the
supplicant being arrested for the alternate time for the same offence, without the
cancellation of bail. The petitioner's asseveration on this solicitation being
arbitrated is only to insure that the authorities don't repeat similar acts in respect of
the supplicant as well as any other citizen. It's clearly a serious matter. It's placed
on record that the supplicant was immorally arrested and it would amount to illegal
detention.104

3.2.4 Custodial Violence and Arrest of Female Persons

The police have no right to beat her or commit acts outraging modesty of a
woman.105 The court issued the following directions to the State Govt. in the case
of Christian Community Welfare Council of India and another v. Government of
Maharastra & another 106 relating to the matter of custodial violence and arrest of
female persons in state:

1. The State of Maharashtra is directed to constitute a Committee conforming

of its Home Secretary, law Secretary and Director General of Police within 15
days from moment for going into all the aspects of custodial violence by the
police in the State and suggest comprehensive measures and guidelines to help
and check custodial violence and death and also suggest for that purpose
suitable emendations in the Police Manual of the State and also submit
comprehensive scheme for police responsibility of mortal rights abuse.

2. The said Committee is directed to submit its report to the State Government
within three months of its constitution.

3. The State Government is directed to take effective, way in enforcing the

measures and guidelines suggested by the Committee in precluding and
checking the custodial violence incontinently after submission of report by the
said Committee.

4. The State Government is directed to issue incontinently necessary

instructions to all concerned police officers of the State that in every case after
arrest and before detainee is taken to the Magistrate, he should be medically

104
Ibid.
105
State of Maharastra v. Sheshrao Thombare & ans January 22, 2015, available at: www.
indiankanoon.org (visited on 13-05-2016).
106
Christian Community Welfare Council of India and another v. Government of Maharastra &
another 1995 Cr .L.J. 4233(Bombay).
 examined and the details of his medical report should be noted in the Station
House Diary of Police Station and should be encouraged to the Magistrate at
the time of product of detainee.

5. The State Government should also issue instructions to all concerned police
officers in the State that indeed after the police remand is ordered by the
concerned Magistrate for any period, every third day, and the detainee should
be medically examined and similar medical reports should be entered in the
Station House Diary.

6. 6. The State Government is farther directed to give a complaint box

properly locked in every police- cinch up and the keys of the complaint box
should be kept by the Officer- in- Charge of the Police Station. The Officer in
charge of the concerned Police Station should give paper and pen to the
detainee if so demanded for writing complaint and the Officer in charge of the
concerned Police Station should open the complaint is set up in the complaint
box, the officer in charge of the Police Station should' produce similar
complaining detainee to the Magistrate incontinently along with his complaint
and the concerned Magistrate would pass applicable orders in the light of the
complaint made for medical examination, treatment, aid or backing, as the
case may warrant.

7. The State Government should issue instructions incontinently in

unambiguous and unequivocal terms to all concerned that no womanish person
shall be detained or arrested without the presence of lady bobby and in no case,
after sun- set and before sun- rise.

8. The State Government should make proper provision for womanish

detainee in separate cinch- ups throughout the State of Maharashtra.”107

1. The State of Maharashtra is directed to constitute a Committee conforming of its

Home Secretary, law Secretary and Director General of Police within 15 days from
moment for going into all the aspects of custodial violence by the police in the State

107
Christian Community Welfare Council of India and another v. Government of Maharastra &
another 1995 Cr .L.J. 4233(Bombay) at Para 29.
and suggest comprehensive measures and guidelines to help and check custodial
violence and death and also suggest for that purpose suitable emendations in the
Police Manual of the State and also submit comprehensive scheme for police
responsibility of mortal rights abuse.

2. The said Committee is directed to submit its report to the State Government
within three months of its constitution.

3. The State Government is directed to take effective, way in enforcing the

measures and guidelines suggested by the Committee in precluding and checking
the custodial violence incontinently after submission of report by the said
Committee.

4. The State Government is directed to issue incontinently necessary instructions

to all concerned police officers of the State that in every case after arrest and before
detainee is taken to the Magistrate, he should be medically examined and the details
of his medical report should be noted in the Station House Diary of Police Station
and should be encouraged to the Magistrate at the time of product of detainee.

5. The State Government should also issue instructions to all concerned police
officers in the State that indeed after the police remand is ordered by the concerned
Magistrate for any period, every third day, and the detainee should be medically
examined and similar medical reports should be entered in the Station House Diary.

6. The State Government is farther directed to give a complaint box properly locked
in every police- cinch up and the keys of the complaint box should be kept by the
Officer- in- Charge of the Police Station. The Officer in charge of the concerned
Police Station should give paper and pen to the detainee if so demanded for writing
complaint and the Officer in charge of the concerned Police Station should open the
complaint is set up in the complaint box, the officer in charge of the Police Station
should' produce similar complaining detainee to the Magistrate incontinently along
with his complaint and the concerned Magistrate would pass applicable orders in
the light of the complaint made for medical examination, treatment, aid or backing,
as
the case may warrant.

7. The State Government should issue instructions incontinently in unambiguous

and unequivocal terms to all concerned that no womanish person shall be detained
or arrested without the presence of lady bobby

and in no case, after sun- set and before sun- rise.

8. The State Government should make proper provision for womanish detainee in
separate cinch- ups throughout the State of Maharashtra.

Stressing the critical need to give legal aid not only to women captures but to all
captures whether they were under trials or were serving rulings, the Court said that
an essential demand of justice is that every indicted person should be defended by
a counsel. Denial of acceptable legal representation is likely to affect in injustice,
and. every act of injustice corrodes the foundations of republic and rule of law.
Expressing serious concern about the safety and security of women in police cinch-
up, the Supreme Court directed that a woman judge should be appointed to carry
out surprise visits to police stations to see that all legal safeguards are being
executed. ”

The Supreme Court issued the directions

1. womanish suspects must be kept in separate cinch- ups under the supervision of
womanish bobbies.

2. Interrogation of ladies must be carried out in the presence of womanish

policepersons.

3. A person arrested without a leave must be incontinently informed about the

grounds of arrest and the right to gain bail.

4. As soon as an arrest is made, the police should gain from the arrested person, the
name of a relative or friend whom s he would like to be informed about the arrest.
The relative or friend must also be informed by the police.

5. The police must inform the nearest Legal Aid Committee as soon as an arrest is
made and the person is taken to the cinch- up.
6. The Legal Aid Committee should take immediate way to give legal backing to
the arrested person at State cost, handed similar person is willing to accept legal
backing.

7. The justice before whom an arrested person is produced shall interrogate from
the arrested person whether s he has any complaints against torture and
maltreatment in police guardianship. The justice shall also inform similar person of
her/ his right to be medically examined.

Women in guardianship are particularly vulnerable to physical and sexual abuse.

Courts take a veritably serious view of complaints regarding custodial rape or
importunity. Of late, the National and State Human Rights Commissions and the

Women’s Commission are also playing an decreasingly visionary part to see similar
cases don't go unpunished. It's the duty of the officer in- charge of a police station/
post to insure that women aren't harmed and quests of their person are carried out
only by women with strict regard to decency.73

3.2.5 Arrest of Security Forces

The apex court has taken seriously the matter of arrest and guardians of the security
labour force. The Supreme Court of India has directed the police in the case of
Union of India v. State of Jammu & Kashmir108, that not to arrest an Indian army
Brigadier in connection with the custodial exposure of a man, Manzoor Ahmad Dar
from Rawalpora then Srinagar, in 2002. Still, a division bench of
Chief Justice HL Dattu and Justice Amitava Roy directed the Brigadier Kishore
Malhotra to cooperate with the police in its disquisition into the exposure.109

3.2.6 Arrest in Dowry Cases

108
Available at: kashmirwatch.com/supreme-court-of-india (visited on 12-04-2016). Apex
Court heard a special leave petition filed by union of India against J&K high court’ order
which had directed police’s special investigation team (SIT) to arrest Malhotra, who was
working as a Major in 2002.
109
Available at: http://indianexpress.com/article/india/india-others/supreme-court-stays-arrestof-
army-officer-in-custodial-disappearance-case/ (Published on September 3, 2015).
The courts in India are swamped with cases of dowry demand. utmost of them are
grounded on cooked or false data only to kill the hubby family. The police officer
incontinently apprehensions the family members of the hubby ignoring the age and
health condition substantially the mama and father. The police officer abused the
provision of law only to kill the hubby and his family member to wring the plutocrat.
Supreme court has been giving judgments on abuse of IPC 498a for numerous
number of times, and they had indeed asked the law ministry to consider amending
it. In the case of Court on Its Own stirv. CBI, the Delhi High Court made the
following compliances directions regarding apprehensions under section 498A/ 406
IPC. The Court observed that Sections 498A/ 406 of Indian Penal Code,
which “ are important abused vittles and exploited by the police and the victims to
the position of asininity. Every relation of the hubby, close or distant, old or minor
is arrested by the police unless the allegations are veritably serious nature and
loftiest magnitude arrest should always be avoided. ”
Again in Chander Bhan & Anothersv. State, the Delhi High Court passed the
following guidelines to be rigorously followed by the police officers

1. No case under Section 498- A/ 406 IPC should be registered without the previous
blessing of DCP/ Addl.D.C.P.
2. Arrest of main indicted should be made only after thorough disquisition has been
conducted and with previous blessing of the ACP/ DCP.
3. Arrest of the collateral indicted similar as father – in- law, mama - in- law, family
– in- law or family- in- lawetc. should only be made after previous blessing of DCP
on train.
4. Police should also deputize a well trained and a well conducted staff in all the
crime against women cells especially the lady officers, each well equipped with the
capacities of perseverance, Persuasion, tolerance and forbearance.
5. FIR in similar cases shouldn't be registered in a routine manner.
6. The bid of the police should be to check complaints veritably precisely and also
register FIR.
7. The FIR should be registered only against those persons against whom there are
strong allegations of causing any kind of physical or internal atrocity as well as
breach of trust.
8. All possible sweats should be made, before recommending enrollment of any
FIR, for conciliation and in case it's set up that there's no possibility of agreement,
also necessary way in the first case be taken to insure return of Stridhan and dowry
papersetc. by the indicted party to the plaintiff ”.

The Supreme Court of India has issued the following directions

1. State governments are to instruct police officers against routine apprehensions
under Section 498A and to fulfill conditions under Section 41 of theCr.P.C. 2. give
a roster of Section 41 sub clauses to all police officers.
3. That roster should be filled and added with reasons and accoutrements to support
arrest, and encouraged by police officers to adjudicators.
4. Adjudicators will read this encouraged report and record their satisfaction before
ordering detention.
5. The decision not to arrest an indicted, with written reasons for the same, will be
encouraged to the justice within two weeks from the date of the institution of the
case.
6. Notice of appearance in terms of Section 41A ofCr.P.C. will be served on the
indicted within two weeks from the date of institution of the case, with written
reasons.
7. Police officers will be liable for departmental action and punishable for disdain
by the high court for failure to misbehave with these directions.
8. Adjudicators authorizing detention without recording reasons will be liable for
departmental action by the high court. ”
The case of Arnesh Kumar was bandied by the Delhi High Court in the case of
Sonia Sehrawatv. Praveen Sehrawat and the court dismissed the solicitation and
denied to intrude in the entitlement of anticipant bail to the hubby/ indicted.

3.2.7 Arrest of Judicial Officers

The judicial officers have certain privileges in the law but the police officer always
violates the basic provisions or the guidelines of the court. Three Judge Bench of
Supreme Court of India issued the following directions in the case of Delhi Judicial
Service Association v. State of Gujarat110 that

1. A Judicial Officer should be arrested for any offence under intimation to the
District Judge or the High Court as the case may be.

2. In case of necessity for immediate arrest of a Judicial Officer only a technical

or formal arrest may be effected.

3. The fact of such arrest should be immediately communicated to the District

and Sessions Judge of the concerned District and the Chief Justice of the High
Court.

4. The Judicial Officer so arrested shall not be taken to a police station, without
the prior order or directions of the District and Sessions Judge of the concerned
district, if available.

5. Immediate facilities shall be provided to the Judicial Officer for

communication with his family members, legal advisers and Judicial Officers,
including the District and Sessions Judge.

6. No statement of a Judicial Officer who is under arrest be recorded nor any

panchnama be drawn up nor any medical tests be conducted except in the
presence of the Legal Adviser of the Judicial Officer concerned or another
Judicial Officer of equal or higher rank, if available.

7. Ordinarily there should be no handcuffing of a Judicial Officer.” 111

Again the issue of arresting the judicial officer came before the Apex Court in
the case of High Court of Judicature of Bombay v. Shrikrishan Rangro Patil112 and

110
(1991) 4 SCC 406, The facts of this case are as under:- The Chief Judicial Magistrate,
Nadiad in the State of Gujarat in October 1988, he found that the local police was not
111
Id. at Para 90.
112
(1997) 6 SCC 339.
held that the High Court is the protector of the subordinate judiciary. Frequently
some members of the Bar, in particular, in Muffasil Courts, attempt to take overdue
advantage of their long standing at the Bar and attempt to abuse their standing by
bringing or trying to bring about different forms of pressures and pinholes on
inferior judicial officers or stubborn and stern and unbendableofficers.However, to
achieve their unrighteous purpose, some members of the Bar indulge in slush-
slinging without any base, If they remain unprofitable. The High Court should, thus,
take care of the judicial officers and cover them from similar unseeing attempts or
pressures so as to maintain their morale and independence and support the honest
and upright officers. In a recent case, Allahabad High Court held that this court is
under obligation to take care of and cover its inferior judicial officers from
unrighteous conditioning of persons acting malafidely due to hostility. thus in
absence of similar authorization/ permission from High Court, the proceeding of
complaint case under challenge is liable to be quashed.113

6.2.10 Torture during Interrogation after Arrest.

Police officers Occasionally make apprehensions in retribution for complaints of

police abuse, in return for backhanders

, or due to political considerations or the influence of important original numbers.

They also admit that they use unlawful compulsion, including torture, to evoke
admissions to the charges they fabricate. Police frequently fail to follow procedures
commanded by the Supreme Court in DK Basuv. State of West Bengal, including
product of a suspect before a justice within 24 hours of arrest.

In this case of Bhagwan Singhv. State of Punjab96 the Apex Court held that it may
be a licit right of any police officer to interrogate or arrest any suspect on some
credited material but such an arrest must bean agreement with law and the
interrogation doesn't mean inflicting injuries. It should be in its true sense
purposeful, substantially, to make the disquisition effective. Torturing a person and
using third degree styles are of medieval nature and they're barbaric and contrary to

113
Muhammad v. State of U.P. and another on 2 August, 2016, available at: www.
indiankanoon.org (visited on 12-09-2016).
law. The police would be negotiating behind their unrestricted doors precisely what
the demands of our legal order prohibit. They must borrow some scientific styles
than resorting to physical torture. If the custodians of law themselves indulge in
committing crimes also no member of the society is safe and secure. If police
officers who have to give security and protection to the citizens indulge in similar
styles they're creating a sense of instability in the minds of the citizens. It's further
heinous than a game- keeper getting a sportsman. ”

The High Court of Bombay held in the case of Ashak Hussain Allah Detha, alias
Siddique and anotherv. Assistant Collector of Customs( P) Bombay and
another97that the word" arrest" is a term of composition. It starts with the arrester
taking a person into his guardianship by action or words restraining him from
moving anywhere beyond the arrester's control, and it continues until the person so
subdued is either released from guardianship or, having been brought before a

Magistrate, is remanded in guardianship by the Magistrate’s Judicial. Act. In

substance," arrest" is the restraint on a men's labor force liberty by the power or
colour of legal authority. In its natural sense also" arrest" means the restraint on or
privation of one's particular liberty. It stands to reason thus, that what marker the
probing officer affixes to his act of restraint is inapplicable. For the same reason,
the record of the time of arrest isn't an indicator to the factual time of arrest. The
arrest commences with the restraint placed on the liberty of the indicted and not
with the time of" arrest" recorded by the Arresting Officers.98

The probing Officers may lawfully detain a suspect for an offence. But detention
in guardianship for interrogation isn't authorised by law.

To save the victims of torture, the Supreme Court issued the following directions
in the rearmost caseD.K.Basuv. State of West Bengal & Others that chains on
captures violates the guarantee of introductory mortal quality, which is part of our
indigenous culture, the Supreme Court said. This practice doesn't stand the test of
papers 14, 19 and 21. To bind a man hand and bottom; fetter his branches with loops
of sword; shuffle him along in the thoroughfares; and to stand him for hours in the
courts, is to torture him; defile his quality; overexpose society; and foul the soul of
our indigenous culture. explosively denouncing handcuffing of captures as a matter
of routine, the Supreme Court said that to manacle a man is further than to
discountenance him; it's to bestialize him; and thus to violate his veritably
personhood. The Hon’ble court rejected the argument of the State that bind are
necessary to help captures from escaping. Insurance against escape doesn't
compulsorily bear handcuffing; there are other styles whereby an companion can
keep safe guardianship of a detenu( detained person) without the personality and
atrocity implicit in bind and other iron contrivances. The Supreme Court asserted
that indeed orders from elders aren't a valid defense for pinioning a person.
indigenous rights can not be suspended under the garb of following orders issued
by a superior officer. There must be reasonable grounds to believe the internee is so
dangerous and hopeless that she he can not be kept in control except by handcuffing.

1. The State Governments shall take applicable action in terms of Section 30 of the
Protection of Human Rights Act, 1993, in regard to setting up/ specifying Human
Rights Courts.

2. The State Governments shall take way to install CCTV cameras in all the
incarcerations in their separate States, within a period of one time from moment but
not latterly than two times.

3. The State Governments shall also consider installation of CCTV cameras in

police stations in a phased manner depending upon the incidents of mortal rights
violation reported in similar stations.

4. The State Governments shall consider appointment ofnon-official callers to

incarcerations and police stations in terms of the applicable vittles of the Act
wherever they live in the Jail primers or the applicable Rules and Regulations.

5. The State Governments shall launch in all cases where an enquiry establishes
guilt of the persons in whose guardianship the victim has suffered death or injury,
an applicable execution for the commission of offences bared by similar enquiry
report and/ or disquisition in agreement with law.114

3.2.8 Handcuffing in the Name of Security

Police arrested the person from the house or open and crowded place. They shackled
the person arrested on the reason of the safety of the society. numerous of the times,
we see that the person shackled by the police has been charged of petty offences.
This will cheapen them before the society. After discharge by the court, he ca n’t
restore his goodwill in the society due to the unlawful handcuffing by the police at
the time of arrest. Supreme Court of India issued the guidelines in numerous cases.
In this corner judgement of Prem Shankar

Shuklav. Delhi Administration the Supreme Court observed that “ Using bind and
fetter( chains) on captures violates the guarantee of introductory mortal quality,
which is part of our indigenous culture, the Supreme Court said. This practice
doesn't stand the test of papers 14, 19 and 21.

The Supreme Court asserted that indeed orders from elders aren't a valid defense
for pinioning a person. indigenous rights can not be suspended under the garb of
following orders issued by a superior officer. There must be reasonable grounds to
believe the internee is so dangerous and hopeless that she he can not be kept in
control except by handcuffing. The Supreme Court has given the directions

1. “ bind are to be used only if a person is

involved in seriousnon-bailable offences, has been preliminarily condemned of a

crime;

b. is of hopeless character-violent, unruly or obstructive;

c. is likely to commit self-murder;

d.is likely to essay escape.

114
Id. at Para 35.
2. The reasons why bind have been used must be easily mentioned in the Daily
Diary Report. They must also be shown to the court.

3. Once an arrested person is produced before the court, the convoying officer must
take the court’s authorization before pinioning her/ him to and down from the court
to the place of guardianship.

4. The justice before whom an arrested person is produced must interrogate whether
bind or fetters have beenused.However, the officer concerned must give an
explanation, If the answer is yes. ”115

3.3 Role of NHRC in Protection of Human Rights

The National Human Rights Commission (“NHRC”) was established on October

12, 1993 under the Protection of Human Rights Act, 1993 (“Act”). Under the Act,
the NHRC/SHRC’s have the power to enquire suo motu or upon petitions filed on
matters pertaining to human rights violations. It may intervene in any judicial
proceedings on human rights, summon or seek attendance of witnesses, procure
documents and evidence, visit prisons and detention centres, make
recommendations to the Government. Every death in police and judicial custody is
to be reported to the NHRC for its scrutiny irrespective of such death being natural
or otherwise.116 The Commission is constituted largely of retired Supreme Court
and High Court judges and two members are chosen from among people with
knowledge of or experience with matters involving human rights. The Commission,
along with the various State Commissions, has the power under Section 18(c) of the
Act to grant compensation in case of human rights violations by the police after an
inquiry.280 As a norm, the NHRC grants compensation as a form of relief in all cases
of police misconduct. But the biggest limitation of the Act is that, under Section 18,

115
Prem Shankar Shukla v. Delhi Administration AIR 1980 SC 1535 at Para 5.
116
NHRC Guidelines on Procedure to be followed in case of Death during Police Action (12 May,
2010); NHRC Booklet/Instructions of Custodial Deaths/Rapes (14 December, 1993) 280 Section
18(c), Protection of Human Rights Act, 1993.
if the NHRC through inquiries has proven certain human rights violations, the
Commission is limited to advising the government to prosecute the concerned
persons or grant relief to the victim. This mere recommendatory power has made
NHRC a weak mechanism for accountability.117

The NHRC for public information purposes has categorized its cases into custodial
deaths, police excesses, fake encounters, cases relating to women/children,
atrocities on Dalits and minorities, bonded labour, armed/paramilitary forces and
other cases.118 The only available public information about NHRC is through its
Annual Reports, and these Reports provide only selective, limited and cursory
information. 119 Further, none of the Annual Reports from 2010 onwards are
accessible. In 2002-2003, 68,779 cases were registered out of which 67,354 were
human rights violations, 1,340 were custodial deaths, 2 were custodial rapes and 83
related to police encounters. 120 By the end of 2003, 43,010 cases remained pending
while the NHRC ordered compensation amounting to Rs 31,40,000/- to be paid in

117
Available at: www.clpr.org.in/wp-content (visited on 26-01-2016).
118
Available at: www.nhrc.nic.in (visited on 26-01-2016).
119
Section 20 Protection of Human Rights Act, 1993 mandates the submitting of Annual Reports.
120
National Human Rights Commission Report (2002-2003) (New Delhi, 2003) 168, 169.
4
CHAPTER - 4 ARREST: INTERNATIONAL SCENARIO

No one shall be subjected to torture or to cruel,

in human or degrading treatment or
punishment.121

An transnational convention( or convention or covenant) is “ an transnational

agreement concluded between States in written form and governed by transnational
law, whether embodied in a single instrument or in two or further affiliated
instruments and whatever its particular designation. A document of that kind
becomes fairly binding on a State on hand and ratification or posterior accession.

Torture is a crime under transnational law. According to all applicable instruments,

it's absolutely banned and can not be justified under any circumstances. This
prohibition forms part of customary transnational law, which means that it's binding
on every member of the transnational community, anyhow of whether a State has
ratified transnational covenants in which torture is expressly banned. The
methodical or wide practice of torture constitutes a crime against humanity.

The transnational convention or the convention document can be traced back to the
English Magna Carta( 1215) and the solicitation of Right( 1628) 5, The French
protestation of the Rights of Man and of the Citizen( 1789), the US Constitution(
1787) and the US Bill of Rights( 1791). Indeed though the Magna Carta only
guaranteed rights to a limited group of people, videlicet feudal lords, it nonetheless
needed that arrest or detention be legal, and defended the existent against the
surpluses of his/ her sovereign . Protection against arbitrary arrest and detention as
one of the main confines of the right to the liberty of the person was further
established in the 17th century Bill of Rights( 1689) and Habeas Corpus Acts( 1640,
1679). The right was further developed and its compass of operation widened after
the French Revolution, in the French protestation of Rights( 1789) where the right
to liberty was guaranteed to all citizens in the constitutions of public countries. The
right to liberty 5 The solicitation of Right was produced in 1628 by the English

121
Article 5 of Universal Declaration of Human Rights (1948).
Parliament and transferred to Charles I as a statement of civil liberties. The
solicitation of Right, initiated by Sir Edward Coke, was grounded upon earlier bills
and exemptions and asserted four principles(

1) No levies may be levied without concurrence of Parliament,

2) No subject may be locked without cause shown( reaffirmation of the right of
habeas corpus),(
3) No dogfaces may be bestowed upon the populace, and
4) Martial law may not be used in time of peace.

A major part in the Mexican revolution( 1915) 11 where ‘ land and liberty ’( Tierra
y Libertad) was the watchword of the revolution. In 1948, the transnational
community condemned torture and other cruel, inhuman or demeaning treatment in
the Universal Declaration of Human Rights espoused by the United Nations General
Assembly. In 1975, responding to vigorous exertion bynon-governmental
associations( NGOs), the General Assembly espoused the protestation on the
Protection of All Persons from Being subordinated to Torture and Other Cruel,
Inhuman or Degrading Treatment or discipline

4.1 International Conventions

The United Nations was created in 1945 in order to promote and maintain peace
and security. Its founding instrument is the Charter of the United Nations (UN
Charter). This document contains an important commitment to human rights in
Article 1.3,5.5.12 Three major instruments that codified human rights at the universal
level are called the International Bill of Human Rights:

26, 1789, it issued the Declaration of the Rights of Man and of the Citizen, which proclaimed
the basic rights of human beings and the limits of the government. The following are just a
few of the Declaration's 17 articles:
1. Men are born and remain free and equal in rights. (Article 1)
2. The purpose of all political association is the preservation of the natural... rights of man. These
rights are liberty, property, security, and resistance to oppression. (Article 2)
3. Liberty consists in the ability to do whatever does not harm another. (Article 4)
 4. No one should be disturbed for his opinions, even in religion, provided that their manifestation
does not trouble public order as established by law. (Article 10)
5. The free communication of thoughts and opinions is one of the most precious of the rights of
man. Every citizen may therefore speak, write, and print freely. (Article 11)
11
It was a revolution led by simple men rising up and asserting their fundamental rights, and
succeeding. The revolution was not only essential to the evolution of human rights and
democracy and Mexico, but was also significant as it was one of the first successful third
world revolutions. To an extent the revolution laid the groundwork for allowing democracy to
emerge from authoritarianism in other third world nations.
12
The UN Charter contains several references to human rights. Besides the preamble, some of
these references are enshrined in substantive provisions [Articles 1.3, 55 (c) and 56].The
preamble states: We the people of the United Nations, determined to reaffirm faith in
fundamental human rights, in the dignity and worth of the human person, in the equal rights
of men and women and of nations large and small. Article 55 “The United Nations shall
promote universal respect for, and observe of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion.”
1. The Universal Declaration of Human Rights (UDHR), which was adopted by the
General Assembly of the United Nations in 1948; 122

2. The International Covenant on Economic, Social and Cultural Rights, which was
adopted in 1966, and its Optional Protocol of 2008;

3. The International Covenant on Civil and Political Rights, which was adopted in
1966, and its two Optional Protocols. 123

The first United Nations congress on the prevention of crime and the treatment of
offenders was adopted in Geneva on 30thAug. 1955. The standard minimum rules
for the treatment of prisoners which prohibit discrimination on the basis of sex were
laid down in it. These rules provide that the regime of the institutions should seek to
minimize any differences between prison life and life at liberty which tend to lessen
the responsibility of the prisoners or the respect due to their dignity as human
beings.124

122
Universal Declaration of Human Rights, Adopted and proclaimed by General Assembly Resolution 217
A (III) of 10 December 1948.
123
International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res.2200
(XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171
(entered into force 23 Mar. 1976).
124
The Standard Minimum Rules for the Treatment of Prisoners were adopted in 1955 by the First
United Nations Congress on the Prevention of Crime and the Treatment of Offenders and
approved by Economic and Social Council resolutions 663 C (XXIV) of 31 July 1957 and
2076 (LXII) of 13 May 1977.
 In the alternate congress held in London in 1960, one of the important
judgments handed that the captures must be prepared as a free man in the community
during the entire period of his detention. In the congress of 1970, while reviewing
the felonious policy in the world, it was observed that forestallment of crime and the
social recuperation of culprits can profit from general and specific measures
espoused in the field of social action outside the felonious law. It was farther
emphasized that the felonious law and felonious justice system aren't stationary
because they answer social requirements which change continuously from time to
time.

In the International Convention on Civil and Political Rights of captures

held on 19thDecember 1966, the General Assembly of theU.N. espoused that all
persons deprived of their liberty shall be treated with humanity and with respect for
the essential quality of the mortal person. At last, the time 1975 drew the attention
of the transnational community to womanish crime. Both the world conference of
the International Women's Year, at Mexico City and the fifthU.N. conference on the
Prevention of Crime and the Treatment of malefactors, at Geneva laid considerable
stress on this aspect of felonious justice. The deliberation stressed the arising part of
womanish crime in the world and relative responsibility of the member states for its
humane running. Accordingly, the world plan of action espoused together with
affiliated resolution by the world conference of the transnational women's times,
made specific reference to the forestallment of crime and treatment of malefactors
and called for public action regarding womanish crime, a problem which was noted
to be adding , and the recuperation of womanish malefactors. It was resolved that
exploration in this field should include the study of the relationship between
womanish crime and other social problems brought by rapid-fire social change.

In the thirteenth UN Congress held at Doha in April 2015 also bind the member states
to promote the use of indispensable measures to judicial proceedings both for women
and children. The principle that privation of liberty of children should only be used only
as a measure of last resort and for the shortest applicable period of time should be
admired. Likewise, whenever possible, the use of pretrial detention for children should
be avoided. Member States are encouraged to review applicable public legislation,
programs, procedures and practices to effectively help and respond to violence against
children who are contended malefactors or victims or substantiations of crime.

4.1.1 International Convention on Civil and Political Rights, 1966

An international legal order relating to custodial conditions and correctional

obligations in respect of female offenders is fast emerging. The fountain head of
such jurisdiction is the charter of the United Nations which affirms faith in
fundamental human rights, in the dignity and, worth of human person, in the equal
rights of men and women. The Universal Declaration of Human Rights, 1948
reaffirms the ideal of equal rights of men and women.

4.1.1.1 Prohibition From Arbitrary Arrest20

Everyone has the right to liberty and security of person. No one shall be subjected
to arbitrary arrest, detention or exiles. No one shall be deprived of his liberty except
on such grounds and in accordance with such procedure as are established by law.21

19
Thirteenth United Nations Congress on Crime Prevention and Criminal Justice, Doha from
12-19 April, 2015, Role of the United Nations standards and norms in crime prevention and
criminal justice in support of effective, fair, humane and accountable criminal justice systems:
experiences and lessons learned in meeting the unique needs of women and children, in
particular the treatment and social reintegration of offenders.
20
Article 9(1), ICCPR.
21
Schultz Joseph and Castan, The International Covenant on Civil and Political Rights – Cases,
Materials and Commentary 304 (2nd Ed, 2004). This view seems to find support in
jurisprudence of the HRC which blurs the various subparagraph of article 9. For example, in
C v Australia, the HRC said that "continuance of immigration detention for over two years
without individual justification and without any chance of substantive judicial review was, in
the Committee's view, arbitrary and constituted a violation of article 9, paragraph 1": C v.
Australia, Communication No 900/00, UN Doc CCPR/C/76/D/900/1999 (2002).
In the case of Delgado Páez v. Colombia (Communication No. 195/1985 (Views adopted on 12 July
1990), in UN doc. GAOR, A/45/40 (vol. II), p. 47, para. 5.5), where the author had received
death threats, been subjected to one personal assault and had a colleague murdered, the Human
Rights Committee concluded that article 9(1) had been violated since
Colombia either had not taken, or had “been unable to take, appropriate measures to ensure
Mr. Delgado’s right to security of his person”. In the case of Dias v. Angola
(Communication No. 711/1996 (Views adopted on 20 March 2000), in UN doc. GAOR,
A/55/50 (vol. II), p. 114, para. 8.3), the Committee concluded that article 9(1) had been
violated since it was the Angolan authorities themselves that were alleged to be the sources
of the threats and the State party had neither denied the allegations, nor cooperated with the
Committee.7 Further, in a case where the author was shot from behind before being arrested,
 the Committee concluded that his right to security of the person as guaranteed by article 9(1)
was violated.
4.1.1.2 The Right to Be Informed of A Criminal Charge125

Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his
arrest and shall be promptly informed of any charges against him.

Article 9(2) applies to people who are remanded in custody pending charge. 126 The
provision has been interpreted to mean that a person must be reasonably aware of
the precise reasons for arrest to enable him to take immediate steps to secure his
release.127

In Drescher Caldas v. Uruguay, the HRC held that it was not sufficient "simply to
inform" the author of the complaint "that he was being arrested under the prompt
security measures without any indication of the substance of the complaint against
him."128

4.1.1.3 The Rights of Persons Detained on Criminal Charges 129

Anyone arrested or detained on a felonious charge shall be brought instantly before

a judge or other officer authorised by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release. It shall not be the general rule
that persons awaiting trial shall be detained in guardianship, but release may be
subject to guarantees to appear for trial, at any other stage of the judicial
proceedings, and, should occasion arise, for prosecution of the judgment. The HRC,
in General Comment 8, noted that the meaning of the word" instantly" in
composition 9( 3)" must not exceed a many days".

In Freemantlev. Jamaica, 28 the Committee set up a violation of composition 9( 3)

when the author was held incommunicado for four days without being brought
before a judge or having access to counsel. The HRC has lately stated that the State

125
Article 9(2), ICCPR.
126
See Paul Kelly v. Jamaica, Communication No 253/87UN Coc. CCPR/C/41/D A at 60
(1991) [5.8].
127
Drescher Caldas v. Uruguay, Communication No 43/79 (11 January 1979) [13.2].
128
Ibid.
129
Article 9(3), ICCPR.
Party should take action to insure that detention in police guardianship noway lasts
longer than 48 hours and those detainees have access to attorneys from the moment
of their detention.

Extended pre-trial detention is also a breach of composition 9( 3), with what

constitutes" reasonable time" being assessed on a case- by- case base. Long ages of
pre-trial detention may, still, be permitted when a detainee is charged with a serious
offence.

4 1.1.4 The Right of Habeas Corpus130

Everyone who's deprived of his liberty by arrest or detention shall have an effective
remedy in the nature of ‘ habeas corpus ’ by which the legality of his detention shall be
decided hastily by a court and his release ordered if the detention isn't legal. In Eric
Hammelv. Madagascar, incommunicado detention for three days, during which it was
insolvable for the author to pierce a court to challenge his detention, was held to breach
composition 9( 4). Five days incommunicado detention has also been linked as a breach
of composition 9. Composition 9( 4) has been interpreted as giving rise to a right of
access to a counsel, because in practice it's nearly insolvable for people to challenge
their detention without legal representation. therefore, denial of access to a counsel is
either generally banned by composition 9( 1) or arises out of composition 9( 4).

4.1.1.5 Fair and Public Hearing

Everyone is entitled in full equality to a fair and public hearing by independent and
impartial tribunal, in the determination of his rights and obligations and of any criminal
charge against him.131

4.1.1.6 Inherent Rights of All Human Beings

Casualness and disdain for mortal rights have redounded in barbarous acts which
have outraged the heart of humanity, and the arrival of a world in which mortal
beings shall enjoy freedom of speech and belief and freedom from fear and want has
been placarded as the loftiest aspiration of the common people. All mortal beings
are born free and equal in quality and rights. They're endowed with reason and heart
and should act towards one another in a spirit of brotherhood.

130
Article 9(4), ICCPR.
131
Article 10 ICCPR.
4.1.2 The Universal Declaration of Human Rights (UDHR), 1948

It's the first mortal rights instrument ratified by nearly all countries of the world. It's
also incorporated by constitutions of numerous of the countries. This status of the
UDHR, gives it the status of customary transnational law. The UDHR had a major
impact on posterior universal and indigenous mortal rights covenants as well as on
public constitutions and other laws. The Universal Declaration on Human Rights is
the launching instrument that came up with developed mortal rights to give effect to
the mortal rights ideal set under the United Nations Charter. As a consequence, there
are a number of vittles that can moment be considered customary law,e.g. the
prohibition of torture and other forms of ill- treatment, the prohibition of ethnical
demarcation and the prohibition of slavery. Following the International Bill of
Human Rights, a number of covenants were drafted that dealt with specific motifs.
They include the following International Convention on the Elimination of All
Forms of ethnical Demarcation( CERD);

1. Convention on the Elimination of All Forms of Demarcation against Women(

CEDAW) and its Optional Protocol; 41

2. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment

or discipline( UNCAT) 42 and its Optional Protocol( OPCAT);

3. Convention on the Rights of the Child( CRC) and its voluntary Protocols on the
involvement of children in fortified conflict and on the trade of children, child
harlotry and child pornography.

or preference grounded on race, colour, descent, or public or ethnical origin which

has the purpose or effect of nulling or injuring the recognition, enjoyment or
exercise, on an equal footing, of mortal rights and abecedarian freedoms.

41 Convention on the Elimination of all Forms of Demarcation against Women

espoused by United Nations General Assembly on the 18 December 1979 and it
entered into force on the 3 September 1981, UN Doc. A/34/46, at 193( 1979),
1249U.N.T.S 14.
42 Also appertained to as the Convention against Torture, it was espoused and
opened for hand, ratification and accession by UNGA Resolution39/46 of 10
December 1984, and it entered into force on 26 June 1987, in agreement with
composition 27( 1). The rights of detainees are substantially addressed through
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
discipline. Consequently, State parties have to make review of arrangements for the
guardianship and treatment of persons subordinated to any form of arrest, detention
or imprisonment.

4. law of Conduct for Law Enforcement officers( 1979)

5. Body of Principles for the Protectionof All Persons under Any Form of Detention
or Imprisonment( 1988)

6. Standard minimal Rules for the Treatment of captures( 1977)

The creation and protection of mortal rights is one of the main purposes of the
United Nations which through its different organs and bodies, has embarked on an
expansive standard- setting exercise. The administrative organ of the United Nations
is the Security Council, which has primary responsibility for peace and security. It
consists of 15 members, five of which are endless members while the other fox are
tagged by the General Assembly for a term of two times. The General Assembly is
the grand organ of the United Nations, conforming of all member State.
Another principal organ of the United Nations is the Economic and Social Council
(ECOSOC). Among other things, it has the power to “set up commissions in
economic and social fields and for the promotion of human rights”. 132 Important
commissions set up by the ECOSOC in the field of human rights are:

1. Commission on Crime Prevention and Criminal Justice, whose standardsetting work,

for instance the drafting of the BPUFF, is of particular relevance to law enforcement
officials;

2. Commission on the Status of Women;

3. Commission on Human Rights, whose work was taken over by the United Nations
Human Rights Council in 2006;

4. Committee on Economic, Social and Cultural Rights.

The Human Rights Council is a attachment organ of the General Assembly of the
United Nations and was created in 2006. It comprises 47 members, each tagged for
a three- time term. In the Universal Periodic Review, the Council reviews the mortal
rights situation in each Member State formerly every four times. It's also
commanded to address harmonious patterns of gross and reliably attested violations
of all mortal rights and all abecedarian freedoms through a complaint procedure and
is supported in this by the Working Group on Dispatches and the Working Group on
Situations. The top mortal rights functionary of the United Nations is the High
Commissioner for Human Rights, who has the power to address any contemporary
mortal rights problem and is effectively engaged in the forestallment of mortal rights
violations around the world.

4.1.3 Standard Minimum Rules for the Treatment of Prisoners, 1955

The Standard Minimum Rules seek “ to set out what's generally accepted as being
good principle and practice in the treatment of captures and the operation of
institutions ”. They apply to all orders of detainees, including doomed captures,
those under executive detention and persons detained without charge. On the whole,

132
UN Charter, Article 68.
they represent “ the minimal conditions which are accepted as suitable by the United
Nations ”. The Rules lay down minimal norms for enrollment ; separation and
bracket of detainees; accommodation; aseptic installations; provision of food,
drinking water, papers necessary for particular hygiene, apparel and coverlet;
religious practice; education; exercise and sport; medical services; and treatment of
mentally ill captures. They regulate correctional and complaints systems, the use of
instruments of restraint and the transport of detainees. In particular, all cruel,
inhuman or demeaning corrections, including carnal discipline, are fully banned as
corrections for correctional offences. There's also a section regulating the
qualifications and geste of institutional labor force.

“ Instruments of restraint, similar as bind, chains, irons and strait- jackets, shall
noway be applied as a discipline. ”

4.1.4 Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment (1988)
The UN Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment state that no person under any form of detention or
imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment133 and the authorities must keep and maintain up-to-date official registers of
all detainees, both at each place of detention and centrally. 134 The information in such
registers must be made available to courts and other competent authorities, the detainee,
or his or her family. Further to this, these principles state that 'in order to supervise the
strict observance of relevant laws and regulations, places of detention shall be visited
regularly by qualified and experienced persons appointed by, and responsible to, a
competent authority distinct from the authority directly in charge of the administration of
the place of detention or imprisonment. A detained or imprisoned person shall have the
right to communicate freely and in full confidentiality with the persons who visit the

133
Principle 6, UN Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.
134
Principle 12, UN Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.
places of detention or imprisonment subject to reasonable conditions to ensure security
and good order in such places.135 Any person shall, at the moment of arrest and at the
commencement of detention or imprisonment, or promptly thereafter, be provided by the
authority responsible for his arrest, detention or imprisonment, respectively with
information on and an explanation of his rights and how to avail himself of such rights. 136

4.1.5 International Convention on the Protection of the Rights of All Migrant

Workers and Members of Their Families, 1990 (ICRMW)

Migratory workers and members of their families shall have the right to liberty and
security of person. Migratory workers and members of their families shall not be
subordinated collectively or inclusively to arbitrary arrest or detention; they shall
not be deprived of their liberty except on similar grounds and in agreement with
similar procedures as are established by law. Migratory workers and members of
their families who are arrested shall be informed at the time of arrest as far as
possible in a language they understand of the reasons for their arrest and they shall
be instantly informed in a language they understand of any charges against them.

Migratory workers and members of their families who are arrested or detained on a
felonious charge shall be brought instantly before a judge or other officer authorized
by law to exercise judicial power and shall be entitled to trial within a reasonable
time or to release. It shall not be the general rule that while awaiting trial they shall
be detained in guardianship, but release may be subject to guarantees to appear for
trial, at any other stage of the judicial proceedings and, should the occasion arise,
for the prosecution of the judgement. When a emigrant worker or a member of his
or her family is arrested or committed to captivity or guardianship pending trial or
is detained in any other manner

135
Principle 29, UN Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.
136
Principle 13, UN Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.
a. The consular or politic authorities of his or her State of origin or of a State
representing the interests of that State shall, if he or she so requests, be informed
without detention of his or her arrest or detention and of the reasons thus;

b. The person concerned shall have the right to communicate with the said
authorities. Any communication by the person concerned to the said authorities shall
be encouraged without detention, and he or she shall also have the right to admit
dispatches transferred by the said authorities without detention;

c. The person concerned shall be informed without detention of this right and of
rights inferring from applicable covenants, if any, applicable between the States
concerned, to correspond and to meet with representatives of the said authorities and
to make arrangements with them for his or her legal representation.

Migratory workers and members of their families who are deprived of their liberty by
arrest or detention shall be entitled to take proceedings before a court, in order that that
court may decide without detention on the legality of their detention and order their
release if the detention isn't legal. When they attend similar proceedings, they shall have
the backing, if necessary without cost to them, of an practitioner, if they can not
understand or speak the language used.

4.1.6 Code of Conduct for Law Enforcement Officials (1979) 137

It contains guidelines for the use of force, including arms, and the provision of
medical treatment to persons in guardianship. The term “ law enforcement officers
“ is extensively interpreted as including all officers of the law who exercise police
powers, especially powers of arrest and detention. No law enforcement functionary
may induce, instigate or tolerate any act of torture or other cruel, inhuman or
demeaning treatment or discipline, nor may any law enforcement functionary bring
superior orders or exceptional circumstances similar as a state of war or a trouble of
war, a trouble to public security, internal political insecurity or any other public
exigency as a defense of torture or other cruel, inhuman or demeaning treatment or
discipline.

137
The Code of Conduct for Law Enforcement Officials was adopted by General Assembly resolution
34/169 of 17 December 1979.
4.1.7 Basic Principles for the Treatment of Prisoners (1990)

The captures should be treated with respect for their essential quality as mortal
beings. They shouldn't suffer demarcation and their religious beliefs and artistic
precepts should be admired. They should have access to artistic and educational
conditioning aimed at full development of the mortal personality, to meaningful
remunerated employment that will grease their reintegration into society and to all
health services without demarcation. sweats to abolish solitary confinement are
encouraged.

4.1.8 Rome Statute of the International Criminal Court (1998)138

The methodical or wide practice of torture and other inhuman acts of a analogous
character designedly beget great suffering or serious injury to body or to internal or
physical health ” constitute crimes against humanity. Torture is defined as “ the purposeful
infliction of severe pain or suffering, whether physical or internal, upon a person in the
guardianship or under the control of the indicted; except that torture shall not include pain
or suffering arising only from, essential in or incidental to, legal warrants.

4.1.9 Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials (1990)139

The arbitrary or vituperative use of force and arms by law enforcement officers
should be penalized as a felonious offence under domestic law. Principle 8 stipulates
that exceptional circumstances similar as internal political insecurity or any other
public exigency may not be invoked to justify any departure from the principles.

4.2 United States Law on Arrest

4.2.1 American Convention on Human Rights

American Convention on Human Rights provides that:

138
The Rome Statute, which establishes an international tribunal to try perpetrators of genocide,
crimes against humanity and war crimes, was adopted by a United Nations Diplomatic
Conference of Plenipotentiaries on 17 July 1998.
139
The Basic Principles were adopted by the Eighth United Nations Congress on the Prevention of
Crime and the Treatment of Offenders in Havana, Cuba, on 7 September 1990.
“1. every person has the right to particular liberty and security.

2. No person shall be deprived of his physical liberty except for the reasons and
under the conditions established beforehand by the constitution of the State Party
concerned or by a law established pursuant thereto.

3. No person shall be subject to arbitrary arrest or imprisonment.” 140

4.2.1.1 Bill of Rights Fourth Amendment

The law of arrest in the United States, the arrival of fourth correction has made lot
of changes and amelioration in the rights of arrested persons. United States law
recognizes the common law arrest under colorful authorities. The right of the people
to be secure in their persons, houses, papers, and goods, against unreasonable quests
and seizures, shall not be violated; and no clearances shall issue but upon probable
cause, supported by pledge or protestation, and particularly describing the place to
be searched, and the persons or effects to be seized.

4.2.1.1.1 Arrests and Other Detentions

That the Fourth Amendment was intended to cover against arbitrary apprehensions
as well as against unreasonable quests was early assumed by Chief Justice
Marshall79 and is now established law. At common law, warrantless apprehensions
of persons who had committed a breach of the peace or a felony were permitted, and
this history is reflected in the fact that the Fourth Amendment is satisfied if the arrest
is made in a public place on probable cause, anyhow of whether a leave has been
attained. still, in order to prompt an arrest in the home, absent concurrence or
clamant circumstances, police officers must have a leave. The Fourth Amendment
applies to" seizures" and it isn't necessary that a detention be a formal arrest in order
to bring to bear the conditions of clearances or probable cause in cases in which
clearances may be forgone.

4.2.1.2 Bill of Rights Fifth Amendment

140
Article 7 (1)-(3) of the American Convention on Human Rights.
“ No U.S. citizen shall be impelled in any felonious case to be a substantiation
against himself. ” It has ago been interpreted to mean that a defendant's act of
remaining silent of refusing to swear can not be used as substantiation against him
or her in court.

One of the most significantly literalU.S. Supreme Court case was Mirandav.
Arizona. This case provides a corner decision that still is used in every law
enforcement agency moment when dealing with suspects during apprehensions and
examinations. All the previous cases mentioned led to this decision. The Miranda
warnings were established so suspects would understand their rights; in addition,
they live for police to be suitable to establish that any admissions attained after
furnishing the warnings were deliberately, intelligently, and freely made, and thus
are permissible in court. Following Miranda, the police could no longer ignore a
suspect’s request for attorney or force suspects into making involuntary statements
and anticipate those statements to be permissible at trial.

The Arizona Supreme Court concluded that Miranda’s concession was made freely;
no pitfalls or pledges were made, and he understood his rights because of previous
hassles with law enforcement. The Supreme Court reviewed the concession in light
of the Fifth Amendment; it also looked at the Sixth Amendment right to counsel as
it affiliated to the countries. Eventually, the Fourteenth Amendment was examined
because it may have been violated as a result of all citizens having a right to due
process through a fair trial. The United States Supreme Court decision in the
Miranda case was a consolidated verdict grounded on four cases( three state and one
civil) involving custodial examinations. The U.S. Supreme Court reversed three
cases and affirmed one.106 The court held that

The Miranda warnings, or “ rights, ” state “ You have the right to remain silent.
Anything you say can and will be used against you in a court of law. You have the
right to anattorney.However, one will be handed for you, If you can not go an
attorney. Do you understand the rights I've just read to you? With these rights in
mind, do you wish to speak to me? ” 107
The Miranda case set a precedent for all police officers that for a concession to be
permissible in court, they need to state the Miranda warnings to

the suspect previous to custodial interrogation to guard the suspect’s rights. This

night and asked Miranda to sign the paper, which he did. At trial, Miranda obtained a court
appointed attorney, whose prior practice was civil litigation; therefore, the attorney had little
criminal law experience. Miranda’s confession was admitted even though the defense
counsel objected. The defense attorney did mention, however, that the victim’s statements to
the police were inconsistent. Miranda was found guilty of the rape and kidnapping; he was
convicted and sentenced to twenty to thirty years of incarceration.

106
The three other cases are: (1) Vignera v. New York, (2)Westover v. United States, and (3)
California v. Stewart.
107
This warning is stated to all suspects before custodial interrogation to ensure that the suspect
understands his or her rights and to ascertain whether the suspect wishes to waive them.
Verification of having informed the suspect of his rights is the only means whereby statements
may now be admissible in trial. This decision has made law enforcement more mindful when
trying to obtain confessions and has helped verify that suspects understand their rights, which in
turn, has made the criminal justice system into a more fair playing field in the battle for justice.
Ironically, Miranda was granted a new trial in which the confession was inadmissible, but he was
found guilty none-the-less. After the litigation process to improve the criminal justice system, his
case ended with the same result: Guilty as charged. The case inevitably provided headway for
every person interrogated by police in custody to understand his or her rights. After Miranda had
been imprisoned for many years, he was released. Soon after his release, he engaged in a bar fight
and was stabbed with a knife and killed. The person who killed him was read his Miranda
warnings.

landmark case established the requirement to read the suspects their rights, but after
the Miranda warnings are read, if counsel is requested, the police must stop the
interrogation. One significant addition from the Miranda decision introduced a
defendant’s Fifth Amendment rights during a custodial interrogation.

4.2.1.3 Post Miranda Judgements

All suspects have the right to not incriminate themselves under the Amendment.
Once the Miranda warnings have been stated to a suspect, he or she now has the
choice to waive the warnings or to remain silent (i.e., not incriminate his or her self).
The Miranda rights also include the right to an attorney to ascertain the questioning
is proper and to aid the suspect answering questions. If a suspect does not waive his
rights, when can the police again question him? The cases of Michigan v. Mosley
(1975), Edwards v. Arizona (1981), Colorado v. Connelly (1986), Dickerson v.
United States (2000), Maryland v. Shatzer (2010), Berghuis v. Thompkins (2010),
Salinas v. Texas (2013) answer these questions and established that when a suspect
may be re-interrogated by providing rules and / or time limits on the Miranda
warnings and the accompanying assertion of Miranda rights. Police now have a time
frame and / or guidelines for subsequent questioning of a suspect without violating
their rights of remaining silent or their request for a lawyer as provided in the Fifth
Amendment. These cases have made the criminal justice system fairer by clearly
defining a time frame and establishing principles for police to follow if a suspect
invokes his or her Miranda rights. The criminal justice system has finally addressed
the “when” question related to Miranda right of suspected criminal involvement. 141

4.2.1.4 Impact of Violation of Miranda Warnings

Suspects in guardianship have made indicting statements in response to police

interrogation previous to being read the Miranda warnings; thus, their statements
have been barred at trial. In addition to statements being barred, all other
substantiation from those statements will be tainted. The statements that lead to
other substantiation will all be barred, unless an exception similar as ineluctable
discovery is handed. All the former cases mentioned have a significant impact on
the felonious justice system because they changed the law to give for a more fair
justice system. Mirandav. Arizona( 1966) opened multitudinous doors to unborn
cases. Indeed moment the Miranda warnings are used and if police fail to mention
them, except in certain situations, statements will be barred at trial.

4.3 European Continent

4.3.1 European Convention for the Protection of Human Rights and Fundamental
Freedoms, 1988
4.3.1.1 Rights of Personal Liberty

1. Everyone has the right to liberty and security of person. No bone

2. shall be deprived of his liberty save in the following cases and in agreement
with the procedure specified by law

a. the legal detention of a person after conviction by a competent court;

141
Available at: www.digitalcommons.kennesaw.edu/cgi (visited on 10-07-2015).
b. the legal arrest or detention of a person for non- compliance with the legal
order a court or in order to secure the fulfillment of any obligation specified by
law;

c. the legal arrest or detention of a person effected for the purpose of bringing
him before the competent legal authority on reasonable dubitation

of having committed an offence or when it's nicely considered necessary to

help his committing an offence or fleeing after having done;

d. the detention of a minor by legal order for the purpose of educational

supervision or his legal detention for the purpose of bringing him before the
competent legal authority;

e. the legal detention of persons for the forestallment of the spreading of

contagious conditions, of persons of unsound mind, rummies or medicine
addicts or sundowners

f. the legal arrest or detention of a person to help his effecting an unauthorised

entry into the country or of a person against whom action is being taken with a
view to expatriation or repatriation.

2. Everyone who's arrested shall be informed instantly, in a language which he

understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in agreement with the vittles of paragraph 1(

c) of this Composition shall be brought instantly before a judge or other officer
empowered by law to use a judicial power and shall be entitled to trial within a
reasonable time or to release pending trial. Release may be conditioned by
guarantees to appear for trial. Everyone who's deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the legality of his
detention shall be decided hastily by a court and his release ordered if the
detention isn't legal.

Everyone who has been the victim of arrest or detention in violation of the vittles
of the Composition shall have an enforceable right to compensation.
 4.3.1.2 Right of Fair Dealings 142

The European community has made the provision for the fair dealing in the
determination of the civil rights and obligation. The right not to incriminate oneself
lies at the heart of a fair procedure and applies to all types of lawless proceedings.
It's primarily concerned with esteeming the will of an criminated person to remain
silent.

1. In the determination of his civil rights and scores or of any lawless charge against
him, everyone is entitled to a fair and public hail within

a reasonable time by an independent and unbiased bench established by law. 1 9

Judgment shall be pronounced privately but the press and public may be barred from
all or part of the trial in the interests of morals, public order or public security in a
popular society, where the interests of kiddies or the protection of the private life of
the parties so bear, or to the extent strictly necessary in the opinion of the court in
special circumstances where hype would prejudice the interests of justice.

2. Everyone charged with a lawless offence shall be presumed innocent until proved
shamed according to law.

3. Everyone charged with a lawless offence has the following minimum rights

a to be informed incontinently, in a language which he understands and in detail, of

the nature and cause of the denunciation against him;

b to have respectable time and installations for the drug of his defence;

c to defend himself in person or through legal backing of his own selecting or, if he
has not sufficient means to pay for legal backing, to be given it free when the
interests of justice so bear;

d to examine or have examined vouchers against him and to gain the attendance and
examination of vouchers on his behalf under the same conditions as vouchers against
him;

142
Article 6 of European Convention for the Protection of Human Rights and Fundamental Freedoms,
E.T.S. 117, entered into force Nov. 1, 1988
e to have the free backing of an guru if he can't understand or speak the language
used in court. free when the interests of justice so bear;

4.3.1.3 Right of Innocence for No Offence143

No oneshall be held shamefaced of any felonious offence on account of any act or

elision which didn't constitute a felonious offence under public or transnational law
at the time when it was committed. Nor shall a heavier penalty be assessed than the
one that was applicable at the time the felonious offence was committed

Daud v. Portugal (11/1997/795/997) 21 April 1998, in this case the court decided that In the instant
case the starting-point must be that, regard being had to the preparation and conduct of the case by
the officially assigned lawyers, the intended outcome of Article 6 (3) was not achieved.
In Imbrioscia v. Switzerland judgment of 24 November 1993, Series A no. 275, p. 13, the Court
reiterates that the Convention is designed to "guarantee not rights that are theoretical or
illusory but rights that are practical and effective, and that assigning counsel does not in itself
ensure the effectiveness of the assistance he may afford an accused.
4.3.2 United Kingdom Law

Arrest means placing a person under lawful detention against their will for the
purposes of law enforcement. When is it fair to arrest someone? Individuals have a
right to liberty, and it has been held by the courts that if the police do not adequately
respect rights to liberty by ensuring that

1. they have some evidence to justify the arrest before it takes place,

2. they tell the person why they are being arrested and

3. they release the person as soon as possible, then the arrest becomes unlawful. This
was the position in a case where it was said that "a citizen is prima facie entitled to
personal freedom."126 But, the right to liberty is not absolute, and its balance with
other societal interests (which are reflective of other rights) can be demonstrated
by Article 5(1) of the European Convention on Human Rights127 and Fundamental
Freedoms (which becomes part of UK law under the Human rights Act 1998).

143
Article 7 of European Convention for the Protection of Human Rights and Fundamental Freedoms
4. The most regulated powers of arrest are those which are allowed under warrant. A
warrant is a formal legal document which authorises someone to take action. In
this case, warrants can be issued by any individual magistrate to a police officer to
carry out the arrest of a named individual. This is the common method of
proceeding against people who have failed to pay their fines after a conviction, or
have failed to "answer bail" i.e. appear at court or a police station when they have
been told to do so.

penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must
not be extensively construed to an accused's detriment, for instance by analogy. From these
principles it follows that an offence must be clearly defined in the law. This requirement is
satisfied where the individual can know from the wording of the relevant provision and, if
need be, with the assistance of the courts' interpretation of it, what acts and omissions will
make him criminally liable.
126
Christie v. Leachinsky [1947] A.C. 573.
127
Article 5(1)”Everyone has the right to liberty and security of person. No one shall be deprived of
his liberty save in the following cases and in accordance with a procedure prescribed by law. The
lawful arrest or detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent his committing an offence or fleeing after having done
so.".144
4.3.2.1 Arrest without warrant for Arrestable offences 145

1. The powers of summary arrest conferred by the following subsections shall apply –

a. to offences for which the sentence is fixed by law;

b. to offences for which a person of 21 years of age or over (not previously

convicted) may be sentenced to imprisonment for a term of five years (or might
be so sentenced but for the restrictions imposed by section 33 of the
Magistrates' Courts Act 1980); and

c. to the offences to which subsection (2) below applies, and in this Act "arrestable
offence" means any such offence.

2. The offences to which this subsection applies are –

144
Section 1, Magistrates’ Courts Act 1980.
145
Section 24(1-3), Magistrates’ Courts Act 1980.
a. offences for which a person may be arrested under the customs and excise Acts,
as defined in section 1(1) of the Customs and Excise Management
Act 1979;

b. offences under the Official Secrets Act, 1920 that are not arrestable offences by
virtue of the term of imprisonment for which a person may be sentenced in
respect of them;

(bb) offences under any provision of the Official Secrets Act 1989 except section
8(1), (4) or (5)

c. offences under section 22 (causing prostitution of women) or 23

(procreation of girl under 21) of the Sexual Offences Act 1956;

d. offences under section 12(1) (taking motor vehicle or other conveyance without
authority, etc.) or 25(1) (going equipped for stealing, etc) of the
Theft Act 1968; and

e. any offence under the Football (Offences) Act 1991;

f. an offence under section 2 of the Obscene Publications Act 1959 (publication of

obscene matter);

g. an offence under section 1 of the Protection of Children Act 1978

(indecent photographs and pseudo-photographs of children);

h. an offence under section 166 of the Criminal Justice and Public Order Act
1994 (sale of tickets by unauthorized persons);

i. an offence under section 19 of the Public Order Act 1986 (publishing, etc.
material intended or likely to stir up racial hatred);

j. an offence under section 167 of the Criminal Justice and Public Order Act
1994 (touting for hire car services);

k. an offence under section 1(1) of the Prevention of Crime Act 1953 (prohibition
of the carrying of offensive weapons without lawful authority or reasonable
excuse);

l. an offence under section 139(1) of the Criminal Justice Act 1988 (offence of
having article with blade or point in public place;
 m. an offence under section 139A(1) or (2) of the Criminal Justice Act 1988 (offence
of having article with blade or point (or offensive weapon) on school premises;

n. an offence under section 2 of the Protection from Harassment Act 1997

(harassment).

3. Without prejudice to section 2 of the Criminal Attempts Act 1981, the powers of
summary arrest conferred by the following subsections shall also apply to the offences
of

a. conspiring to commit any of the offences mentioned in subsection (2) above;

b. attempting to commit any such offence other than an offence under section 12(1)
of the Theft Act 1968;

c. inciting, aiding, abetting, counselling or procuring the commission of any such

offence; and such offences are also arrestable offences for the purposes of this
Act.

4.3.2.2 Arrest without warrant for Arrestable offences 146

1. Any person may arrest without a warrant –

a. anyone who is in the act of committing an arrestable offence;

b. anyone whom he has reasonable grounds for suspecting to be committing such

an offence.

2. Where an arrestable offence has been committed, any person may arrest without a
warrant

a. anyone who is guilty of the offence;

b. anyone whom he has reasonable grounds for suspecting to be guilty of it.

3. Where a constable has reasonable grounds for suspecting that an arrestable offence
has been committed, he may arrest without a warrant anyone whom he has reasonable
grounds for suspecting to be guilty of the offence.

146
Section 24 (4-7) PACE, 1988. 131
Section 26 PACE,1984.
4. A constable may arrest without a warrant

a. anyone who is about to commit an arrestable offence;

b. anyone whom he has reasonable grounds for suspecting to be about to commit

an arrestable offence.

4.3.2.3 Repeal of statutory powers of arrest without warrant or order131

1. Subject to subsection (2) below, so much of any Act (including a local Act) passed
before this Act as enables a constable –

a. to arrest a person for an offence without a warrant; or

b. to arrest a person otherwise than for an offence without a warrant or an order of

a court, shall cease to have effect.

Section 26 also leaves unaffected common law powers of arrest and detention.
These exist in relation to breaches of the peace. 147 It should be emphasised that the
common law allows action by the police to preserve the peace which falls short of arrest
e.g. pulling a person who has jumped a queue away from hostile bystanders. 148

4.3.2.4 Detention other than by arrest134

It has been noted formerly that the police have some powers at common law to detain
without making a formal arrest. These live in order to help or quell breaches of the
peace. still, the normal rule is that the police don't have powers to detain for
questioning or to make people" help with their inquiries". individualities can
generally choose whether or not to help the police. Good citizens will generally wish
to help, but the principle of policing by the concurrence of the public means that
they shouldn't be forced to help unless formally arrested.

Where for the purpose of assisting with an investigation a person attends voluntarily
at a police station or at any other place where a constable is present or accompanies
a constable to a police station or any such other place without having been arrested-

147
R. v Howell [1981] 3 W.L.R.501.
134
148
Lavin v. Albert [1982] A.C. 546.
Section 29, PACE 1984.
(a) he shall be entitled to leave at will unless he is placed under arrest;

(b) he shall be informed at once that he is under arrest if a decision is taken by a constable
to prevent him from leaving at will.

4.3.2.5 The exercise of arrest powers

An important qualification, which veritably much reflects respect for the right to
liberty, is the demand which applies to all normal arrest powers that they can only
be exercised if some form of" reasonable dubitations

is first established. The precise meaning of this term is rather vague, but it principally
means that the arresting officer must be sure subjectively there's some substantiation
against the detainee and it must be objectively the case that the substantiation on the
officer’s mind would have been enough to move a reasonable observer that it was
reasonable to make an arrest. This doesn't mean there has to be evidence of guilt
beyond reasonable mistrustfulness( or indeed on the balance of chances). But it does
mean there has to be good objective reasons for picking on the person to be arrested-
the fact that he's a former lawbreaker known to the police or is cocky or is from a
particular ethnical or ethnical group isn't enough.

4.3.2.6 Pre-Charge Detention for Terrorist Suspects

The United Kingdom has faced the issue of terrorism for several decades. It has
more lately faced the issue of legislating against the terrorist trouble whilst
complying with the European Convention on Human Rights. One of the UK'santi-
terrorism measures is thepre-charge detention of terrorist suspects for over to twenty
eight days without charge. During the summer of 2008, the government tried to
further extend this period to forty two days, but was eventually unprofitable. The
uninterrupted sweats of the government to cover the public security of the UK whilst
guarding the civil liberties of its citizens is an ongoing struggle with no clear result.

4.4 Canadian Law for Arrest and Detention

4.4.1 Constitution Act, 1982149
Everyone has the right to life, liberty and security of the person and the right not to
be deprived thereof except in agreement with the principles of abecedarian justice.
Everyone has the right to be secure against unreasonable hunt or seizure139 and not
to be arbitrarily detained or locked .Everyone has the right on arrest or detention:

a. to be infomed promptly of the reason therefor

b. to retain and instruct counsel without delay and to be informed of that right; and

c. to have the validity of the detention determined by way of habeas corpus and to be
released if the detention is not lawful. 150

Any person charged with an offence has the right

a. to be informed without unreasonable delay of the specific offence;

b. to be tried within a reasonable time;

c. not to be compelled to be a witness in a proceedings against that person in respect of

the offence;

d. to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunal;

e. not to be denied reasonable bail without cause;

f. except in the case of an offence under military law tried before a military tribunal, to
the benefit of trial by jury where the maximum punishment for the offence is
imprisonment for five years or a more severe punishment;

g. not to be found guilty on account of any act or omission unless, at the time of the act
or omission, it constituted an offence under Canadian or International law or was
criminal according to the general principles of law recognized by the community of
nations;

149
Enacted as Schedule B to the Canada Act, 1982, (U.K.) 1982 c. 11, which came into force on April
17, 1982.
150
Article 10 of Canada Constitution, 1982.
h. if finally acquitted of the offence, not to be tried for it again and, if finally found
guilty and punished for the offence, not to be tried or punished for it again; and

i. if found guilty of the offence and if punishment for the offence has been varied
between the time of commission and the time of sentencing, to the benefit of the
lesser punishment.151

Everyone has the right not to be subjected to any cruel or unusual treatment or
punishment.143 A witness who testifies in any proceedings has the right not to have any
incriminating evidence so given used to incriminate that witness in any other proceedings,
except in a prosecution for perjury or for the giving of contradictory evidence 152. A party
or witness in any proceeding who does not understand or speak the language in which the
proceedings are conducted or who is deaf has the right to the assistance of an interpreter. 153

4.4.1.1 Arrest and Detention

Everyone has the right not to be arbitrarily detained or locked .

Everyone has the right on arrest or detention
a) to be informed instantly of the reasons thus;
b) to retain and instruct counsel without detention and to be informed of that right; and
c) to have the validity of the detention determined by way of habeas corpus and to be
released if the detention isn't legal.
norms by which the" arbitrariness" can be measured are presto being established with
consecutive opinions of the Supreme Court of Canada. therefore, it's arbitrary and
obnoxious for the police, with little or no reason, to detain or arrest a person for
questioning or for farther disquisition.
With reference to section 10( a) in Amos states that the Charter now enshrines what has
always been the case in Canada the law doesn't fete any police right to arrest or
forcefully detain any person who isn't charged with an offence, simply in order to probe
an offence that the police believe has been committed.
Right to Retain Counsel
In Kelly, the Ontario Court of Appeal drew a distinction between the interests defended
by paragraphs( a) and( b) of section 10. With respect to paragraph( a), the court held that

151
Article 11 of Canada Constitution, 1982. 143
Article 12 of Canada Constitution, 1982.
152
Article 13 of Canada Constitution, 1982.
153
Article 14 of Canada Constitution, 1982.
a person isn't obliged to submit to an arrest without knowing the reason for it;
consequently it's essential that the person be informed" instantly" of the reason. On the
other hand, the purpose of paragraph( b) is to cover someone from biasing his or her
legal position by saying or doing commodity without the benefit of legal advice. The
demand that the indicted be informed" instantly" of the reason for the arrest means that
the information must be given" incontinently." still, the demand that the indicted be
informed of the right to counsel" without detention" isn't the same as taking that the
indicted be informed" incontinently." There may be good reason for an arrested person
to be informed" without detention" of the right to counsel, but there's no essential reason
why that must be part and parcel of the statement under paragraph( a) of the reason for
the arrest; such a statement is really part of the arresting process itself.
144
 CHAPTER - 5 CONCLUSION AND SUGGESTIONS

Torture is wound in the soul so painful that sometimes you

can almost touch it, but it is also so intangible that there
is no way to heal it.

5.1 Conclusion

The protection of personal freedom is crucial in the legal systems of many

countries, including India. International Conventions emphasize the importance of
individual rights and liberties. The United Nations promotes individual liberty
through the rule of law, ensuring that arrest and detention procedures are lawful and
fair. India has made efforts to protect human rights, as reflected in its Constitution.
However, there is a gap between theory and practice, leading to unrest and
dissatisfaction. The Constitution and Supreme Court rulings outline procedural
obligations for arrests. India's Constitution guarantees fundamental rights, such as
protection against double jeopardy and the right to remain silent. The Supreme
Court has interpreted these principles in various cases to ensure fair treatment of
suspects and accused individuals. The use of scientific interrogation techniques has
also been debated in light of the right against self-incrimination.

A detailed explanation of the issue can be found in the case of Raj Kumar Singh v.
State of Rajasthan, which emphasized the importance of allowing an accused
individual to provide an explanation regarding any incriminating circumstances.
The Constitution's Article 22 (1) and Section 50(1) of the Criminal Procedure Code
outline the rights of an arrested person to be informed of the grounds for their arrest
in a language they understand, and to have someone informed of their arrest.

Failure to comply with these requirements renders the arrest unlawful, as

highlighted in cases like Joginder Singh v. State of U.P. and D.K. Basu v. State of
West Bengal. Section 50-A now makes it mandatory for police officers to not only
inform a friend or relative of an arrested person about the arrest, but also to make
an entry in a police register. It is the magistrate's responsibility to ensure the police
have followed these procedures.

Article 22(1) ensures that individuals who are arrested have the right to consult and be
represented by a legal practitioner they choose. The Court has emphasized the
importance of this right for ensuring a fair trial and has expressed concern about the
difficulties faced by prisoners who cannot afford legal representation. It is crucial to
provide legal aid to all prisoners, regardless of their status, to uphold the principles of
justice. Lack of proper legal representation can lead to injustice, which undermines the
rule of law and democracy. Failing to provide legal assistance to those in need goes
against constitutional guarantees, as stated in Article 39-A and also recognized as a
fundamental right under articles 14 and 21.
In the cases of Huassainara Khatoon (IV) v. Home Secretary, State of Bihar, Maneka
Gandhi v. Union of India, AG v. Shiv Kumar Yadav and Another, and Ajit Singh v.
State of Punjab, the Courts emphasized the importance of allowing a person accused
of a crime to have the assistance of a lawyer as a fundamental right for a fair trial.
They also clarified that not providing legal aid to an impoverished accused person,
unless refused, would invalidate the trial, leading to the conviction and sentence being
overturned.
The Supreme Court and High Courts have emphasized in various cases the
importance of the state and its police authorities following the constitutional and
legal mandate to bring an arrested individual before a Judicial Magistrate within
arrest of 24 hours.

In India the prime importance of criminal procedure has to be borne in mind, as it

is the procedure that spells much of the difference between rule of law and rule by
whim and caprice. The Criminal Procedure Code of 1973 governs and controls the
operation of the apparatus used in the process of making an arrest, conducting an
investigation, and trying criminal cases. In order to make the investigative and
adjudicatory processes robust, effective, and efficient, it must, on the one hand,
grant sufficiently broad powers; on the other hand, it must take safeguards against
human error and error of judgment, as well as provide protections against likely
abuse of power by the police or judicial officers. Section 41 to 60 provides the
power to arrest of a person by the police, Magistrate and even by the private persons.
The wide latitude granted by the CrPC to make an arrest even in cases of bailable
offenses—not just in cases where the offense is cognizable, but also in cases where
it is not—as well as the additional authority to make preventive arrests—for
example, under section 151 of the CrPC and various city police enactments—vest
the police with extraordinary power that is readily abused.

The goal of the arrest law is to create a compromise between the competing
demands of social order preservation and individual liberty. But, Fake encounter,
torture, custodial death and forced disappearance of accused and common man have
become a common phenomenon in today’s day to day scenario of life.

The techniques of torture employed by law enforcement officials entail egregious acts
of cruelty. The United Nations special Rapporteur on Torture, reporting that people are
routinely tortured in India Such tortures often lead to custodial deaths, if not death then
to other heavy casualties that are even worse than death, such as fatal injuries,
permanent disablement, mental derailment, loss of faculties, psychological trauma, etc.
As the Asian Centre for Human Rights (ACHR) has repeatedly noted, approximately
99.99% of deaths that occur while a person is in police custody an be ascribed to torture
and occur within 48 hours of the victims being taken into custody.

Custodial deaths are an undoubted trouble to Indian republic. It's imperative that a
perspective be inseminated against the idea of custodial violence in the minds of
the general public as well as in the government. Administering authorities must be
made apprehensive of and held responsible for their conduct, while the general
public must be made apprehensive of the styles, strategies, and avenues accessible
to them in the wake of similar happenings. putatively, the government itself must
confirm that before such a stage is reached. it has a wellsuited frame set- up which
is competent enough to acclimatize up to pressures like ‘ Custodial Deaths ’. Unlike
custodial deaths, the police aren't mandatorily needed to report cases of torture
which don't affect in deaths to NHRC. Hence number of reported cases of police
torture is a bit of the factual incidents.

Failure to follow proper procedure while arresting and interrogating suspects is a

veritably serious matter.D.K Basu’s case lays down specific guidelines that must be
followed while arresting and interrogating suspects. These guidelines are grounded
on Code of Criminal Procedure, 1973 vittles and are veritably much a part of
regulations laid down in police primers and rule books. The Supreme Court has said
that failure to misbehave with these guidelines not only renders an officer liable for
discipline through departmental action but also amounts to disdain of court.

Joginder Kumarv. State ofU.P and others the Apex court held that apprehensions
shouldn't be made, unless they're absolutely necessary. Women in guardianship are
particularly vulnerable to physical and sexual abuse. Courts take a veritably serious
view of complaints regarding custodial rape or importunity. Expressing serious
concern about the safety and security of women in police cinch- up, the Supreme
Court directed that a woman judge should be appointed to carry out surprise visits
to police stations to see that all legal safeguards are being executed.

Using bind and fetters( chains) on captures violates the guarantee of introductory
mortal quality, which is part of our indigenous culture, the Supreme Court said in
the case of Citizens for Democracyv. State of Assam. explosively denouncing
handcuffing of captures as a matter of routine, the Supreme Court said in Prem
Shankar Shuklav. Delhi Administration that to manacle a man is further than to
discountenance him; it's to dehumanise him; and thus to violate his veritably
personhood.

The Right to Life guaranteed by our Constitution includes the right to live with
mortal quality. The State isn't only obliged to make those who violate abecedarian
rights, it also has a duty to pay financial compensation to repair the wrong done by
its agents in not being suitable to discharge their public duty of upholding people’s
rights.

The issue of award of compensation in case of violation of abecedarian rights of a

person has been considered by the Courts time and again and it has constantly been
held that papers 226 and 32 can not be used as a cover for the enforcement of rights
and scores which could be executed efficaciously through the ordinary process of
courts. In Sube Singhv. State of Haryana andOrs., while dealing with analogous
issue this Court held that in cases where custodial death or custodial torture or other
violation of the rights guaranteed under Composition 21 is established; the courts
may award compensation in a proceeding under Composition 32 or 226.
The experimenter observed that in India we've National and State Human Rights
Commission for the protection of mortal rights and for checking the atrocities by
the police and other legal agencies, but, the National and State Human Rights
Commission have no authority to change this situation as there's no independent
body to interrogate into reported cases of torture. Commission judgments are bare
recommendations and are frequently ignored. The National and the State Human
Rights Commissions have no authority to change this situation. There's no
independent body to interrogate into reported cases of torture.

Commission judgments are bare recommendations and are frequently ignored.

Where torture is state- patronized, the recommendations noway get executed, The
Human Rights Act is just eyewash for the transnational community; as it can not be
executed it's pointless.

Independent examinations are critical to reducing immunity, but despite the

presence of the National Human Rights Commissions and their state counterparts,
they're rare in important of India. Police examinations, either initiated by police or
accepted at the direction of external agencies, are frequently ineffective due to a “
law of silence ” that makes police doubtful to expose indicting substantiation. In the
absence of an independent disquisition, officers who issue illegal orders or pressure
inferiors to carry out abuses can lay the blame simply on their inferiors.

Indeed though, the veritably purpose of setting up of the State Human Rights
Commission gets defeated if vacuities that do from time to time aren't instantly
filled up and the Commission kept functional at all times. There's hardly any
explanation much less a forceful bone

for the failure of the State to take immediate way for stuffing- up of the vacuities
wherever they've passed. The inactivity or regulatory incuriosity or indeed the lack
of political will can not frustrate the estimable object underpinning the
Administrative legislation.

The experimenter finds that India has rejected all calls to confirm the convention
against Torture and other Cruel, Inhuman and Degrading Treatment or discipline(
CAT) on the ground that the domestic mechanisms is available in the country, which
is able of precluding brutality and inhuman treatment, in addition to indigenous
safeguards. But the vittles of the felonious procedure law, Indian substantiation Act
and Indian Penal Code are empty, since there's no procedure for independent inquiry
and compensation of victims. indigenous remedies too are pointless for utmost of
the victims as the court procedure take too important time and courts disallow any
claims for compensation.

The experimenter finds that the bar has tried to address torture in India. still, its
involvement has been limited to select cases, and numerous cases of torture have
gone unreported. The government highlights rare cases as exemplifications to assert
that there's rule of law and an ordered society in the country, and utmost torture
cases either nor reported due to fear of farther execution of fail to be fulfilled due
to lack of proper laws and loose practices. The Apex court is veritably conscious of
its responsibility to cover the poor and helpless from the Police and custodial
torture.

The lack of motivated legal system( counsel and legal backing and a imperfect
execution) does nothing to give remedy in this situation. India has not ratified the
voluntary protocol to the CAT, thereby precluding its citizen from making
individual complaints to the Committee Against Torture if they feel they've no
effective domestic remedies. therefore it's the need of the time search the ways to
check the Police torture with the help of domestic laws.

also, it has been observed that the court cinch- ups must be governed by the bar.
This is in malignancy of the fact that indeed the adjudicators are reliant on the police
authorities for their legal and judicial functions. The problem lies in vesting
enormous judicial functions with the police authorities. Their occupation starts from
the arrest to the conviction of the arrestee. virtually, for all intents and purposes, the
independence of the bar has not been fete . Now, this is contrary to the introductory
tenets of the Constitution and conflicts with the intention of the Criminal Procedure
Code, 1973 that establishes the bar to be independent to other corridor of the
government.
In last, the experimenter finds that these legal protections, guidelines and directions
issued by the Supreme Court are inadequate because too numerous police continue
to view the use of force to gain admissions and information as an respectable and
necessary tool for probing crime and administering the law. Police also occasionally
physically kill and tortured members of vulnerable populations in their
guardianship, occasionally redounded in custodial deaths, with no apparent fear of
execution.

therefore, at the end, we can say that the law of arrest and custodial torture is
veritably sophisticated provision so its use must be in a veritably careful manner,
whether it's before the justice or the police officer and there's a need of correction in
the present statutory vittles and change at departmental position procedure to make it
more effective so the experimenter suggested some suggestions as follows

5.2 Suggestions

Suggestions are formulated on the basis of judicial interpretation of law of arrest

and custody and also by the present researcher on the basis of personal experience,
the study of the available literature and non- empirical survey.

5.2.1 Suggestions on Judicial Observations

These suggestions are formulated on the base of judicial interpretation of law of

arrest and guardianship. In our legal system, bar is worked like a administrative
body on all the agencies and institutions whenever they set up illegal or indecorous
they not only pass judgments but also issue suggestion and guidelines. There are
some suggestion/ guidelines regarding the interpretation law of arrest and
guardianship, which have been formulated on the base of the dictum of Apex Court
and colorful High Courts. The following suggestions crop out of the judicial
compliances and particular experience

5.2.1.1 Suggestions for the Judiciary

1. In the case of writ of habeas corpus, the High court should deputize a
Judicial Magistrate of the concerned quarter rather of a raiding party constituted
from the High court.
2. The court should gasp heavy penalty as felonious and civil liability to the
officers who are in dereliction of arbitrary detention, custodial death, torture
and fake hassle.

3. The court should take cognizance of this type of cases suo moto or on the
complaint made by any person as early as possible to minimize the loss to the
victims.

4. Court should try the case on the speedy base to give the proper or timely
justice to the victims of torture.

5. The High Court should deputize the Judicial Magistrate to make the surprise
visit of the police station and the jails on daily base. The Judicial officer who
did the surprise visit should shoot the daily report to NHRC and the High Court
concerned.

6. The Illaqa Magistrate should call the medical report of every arrested person
who has been brought before the court after arrest or after police remand.

7. The Illaqa Magistrate should ask to the arrested person about torture or ill
treatment done by the police officer during the arrest and guardianship, if any at
the time of presence of arrested person beforehim.However, he should call the
medical report which should be done under the supervision of the elderly officers
of the police officer who's in dereliction, If the justice set up any type of torture or
ill treatment by the police officer.
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