Arrest and Interrogation Laws In India

Arrest is a very common word which we use a lot in our daily life. In a layman’s language, it simply means restraint or the deprivation of personal liberty of a person who does or has done something against the law. But every deprivation or restraint is not arrest unless done by a legal authority according to the procedure established by law. In India, the Criminal procedure Code, 1973 in its chapter V (section 41 to 60) deals with Arrest of a person. Ironically, the word ‘arrest’ has not been defined in the Code nor in any other substantive or procedural laws. According to Black’s Law Dictionary, the term ‘arrest’ means “to keep a person in lawful custody. A warrant, crime, or statute can authorize this”. The most common definition of the term ‘arrest’ is restraining of a person by legal authority so as to cause deprivation of liberty. An arrest can be made to prevent a crime or after a crime has been committed, if a suspect is known.

Often arrest is confused with custody but both these words have a different meaning. Arrest is done prior to appearing before Magistrate while custody is when Magistrate orders the person to be kept either within the authority of police officer or in district prison under his supervision. In every arrest, there is custody but not vice versa as it is not necessary that there must be arrest to constitute custody. For example, when a person directly approaches the Magistrate and confesses a crime or one and submits himself to the Magistrate, he can be kept under custody without any requirement of arrest.

Arrest can be of two types:

• arrest made in pursuance of a warrant issued by a magistrate
• arrest made without such a warrant but in accordance with some legal provision permitting such an arrest

Who can arrest?

Arrest can be made by any police officers, Magistrates, and private citizens under the circumstances mentioned in Section 41 to 44 of the code.

• Sec 41 authorises police to arrest without a warrant only in cognizable offences.
• Sec 42 authorises police to arrest on refusal to give name and residence by a person who has committed or has been accused of committing a non-cognizable offence.
• Sec 43 authorises a private person to arrest anyproclaimed offender or person who in his presence commits a non-bailable and cognizable offence.
• Sec 44 authorises a Magistrate to arrest ororder any person to arrest the offender who has committed any offence in his presence.

Exception

All the members of the Armed forces are exempted from being arrested for anything done by them in the discharge of their official duties except after obtaining the consent of the government under Sec 45.

Manner of arrest

Section 46 - 49 deals with how an arrest can be made and other powers of police to arrest the offender.

• 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.
• A police officer may, for the purpose of arresting without warrant any person who is authorized to arrest, pursue such person into any place in India.
• If any police officer or any person having authority to arrest, has reason to believe that the person to be arrested has entered into any place shall search that place
• The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

After arrest procedure and interrogation

After arrest, when the person is in police custody, Police have the right to question the accused to know the essential facts and truths of the incident so that a case can be solved easily. Section 51- 54 and 56-59 of the code deals with after arrest procedure.

• Section 51 empowers a police officer to make a search of the arrested person under certain circumstances. It also provides that whenever a female is to be searched, the search shall be made by another female with strict regard to decency.

• Section 52 empowers a police officer or other person making an arrest under this code to seize any offensive weapon from the possession of the arrested person.

• Under section 53 and 54 arrested person has to be medically examined.

• As per Section 56 and 57, the person arrested must be taken before Magistrate without unnecessary delay and cannot be detained for more than 24 hours after arrest. It is also mentioned in Article 22 of the Indian Constitution.

• Section 58 of the Code requires a police officer to send the report of all cases where the accused person is arrested without a warrant within the local limits of his police station to the District Magistrate.

• As per Section 59 of the code, once a person is arrested by the police, he can be released only after taking a bond or bail for his appearance before a Magistrate

• It is the duty of the accused to provide correct and accurate information or provide the information which is best known to him/her.

• As per section 162(1) of the Code, it is not necessary to sign any statement given by the accused during the process of interrogation.

• Section 26 of the Indian Evidence Act states that any statement to the Police by the accused cannot be held against him/her until the statement is made before the magistrate.

• If the accused wants to confess about the offence, he has committed, then the confession should be made in the presence of a magistrate. It becomes the duty of the magistrate to tell the accused that he should not confess to an offence under any pressure. If the accused makes a confession on his own, then the confession may be used against the accused as evidence. If the magistrate is not convinced that the accused is confessing on his own without any pressure, then the magistrate will not write the confessional statement.

• It is advisable that no vague and unclear statements should be made by the accused.

• The facts should not be exaggerated and only the incidents which occurred should be disclosed by the accused.

SPECIAL PROVISION FOR WOMEN:

By Criminal Law Amendment Act 2005, a new clause was added to section 46 of the code which provides that Females cannot be arrested without the presence of a lady constable and further no female can be arrested after sun-set but there is an exceptionthat in case the crime is very serious and arrest is important, the woman police officer must obtain prior permission from the Judicial Magistrate First Class after submitting a written report as to the need for such late arrest. Separate lock-ups to be provided for them.

FuFurther, under section 53(2), the medical examination of a female should be done by a female medical practitioner only.

Rights after arrest and during interrogation

The arrested person has the following rights:

• As mentioned earlier he cannot be held for more than 24 hours.

• Under section 41D and 303 of the Code, the arrested person has the right to meet an advocate of his choice during interrogation and as per article 22 of the Indian constitution, he also has the right to free legal aid.

• As per section 51of the Code and Article 22 of the Indian Constitution, it is the right of the person being arrested to know the grounds and also whether the offence is bailable or non-bailable.

• The arrested person cannot be forced to give self-incriminating evidence or statement and has right to remain silent.

• An arrested person has a right to inform a family member, relative, or friend about his arrest under sec 50 of the Code.

• As per section 24 of the Indian Evidence Act and section 316 of the Code states, Police cannot threaten or compel the accused to accept any crime which he has been accused of.

• If the Police injures the arrested person during interrogation then the police officer is liable for punishment under section 330 and 331 of IPC.

• A police officer has no right to torture, ill-treat, or abuse the accused during interrogation or questioning.

• The accused has a right to file a complaint regarding interrogation with the magistrate in a court having jurisdiction or with higher officers like the Superintendent of Police (S.P.) or the Deputy Inspector General of Police (D.I.G.) or the Inspector General of Police (IG).

• State Human Rights Commission or the National Human Rights Commission can also register a complaint regarding police interrogation if conducted by police in a corrupt manner.

• The police officer must be wearing a clear and visibleidentification of his name which facilitates easy identification. A memo of arrest must be prepared at the time of arrest – (i) attested by least one witness, it can be a family member or member of the locality where the arrest is made (ii)countersigned by the arrested person.

Misuse of power of arrest

Despite several safeguards provided by the Code and the Constitution of India, there are many cases where this power is misused for monetary gains and other benefits. According to the 3rd report of the National Police Commission, 60% of the total arrests were unnecessary and more than 42% of the total funds allotted to jails were spent on the prisoners who should not have been arrested in the first place.

There are leading cases and Law Commission Reports in order to curb the arbitrary use of power to arrest by imposing restrictions on the power and imposing safeguards.

The 3rd Report of the National Police Commission ruled that, an arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:

(i) The case involves a grave offence like murder, dacoity, robbery, rape, etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims.

(ii) The accused is likely to abscond and evade the processes of law.

(iii) The accused is violent in behaviour and is likely to commit further offences unless his movements are brought under restraint.

(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.

There is a landmark case of D.K. Basu v. State of West Bengal (1997) in which SC laid down guidelines in the interest of the illegal arrests, custodial deaths, and in the absence of any legislation regulating the conduct of the police. These guidelines were then incorporated in the code by the CrPC Amendment Act, 2008. The guidelines are:

• right to be examined by a medical practitioner
• right to inform relative of the arrested person about the arrest
• arrest to be recorded in a diary
• the memo and the diary to be shown to the magistrate
• the arresting officer is required to have identification
• the right of arrested person to contact his lawyer
• to be produced in front of Magistrate within 24 hours

Another leading case is Joginder Kumar v State of U.P. 1994, in this SC ruled that it is the duty of a magistrate to ensure that arrest complies with the guidelines. It further ruled that the arrested person has the right to inform a close friend or relative that he is arrested and the location of such detention and it is the duty of the police officer to inform the arrested person of the above-mentioned rights. An entry should be made in the diary as to who was informed of the arrest.

Conclusion

Physical liberty is one of the most cherished freedoms guaranteed to an individual and arrest deprives an individual of this freedom. Since the determination as to the existence of such circumstances and the consequent decision to arrest lies in the hands of the police officers, this power can be misused by the police officer for personal gains. But arrest and interrogation are essential to maintain law and order in a state. The need is to strike balance between the rights of the accused and the societal interests at the same time. A balanced system can be formed through some more checks on this power and more awarenessamong the peoples about their rights.