ARREST AND CUSTODY – RIGHT TO LIFE AND PERSONAL LIBERTY


Court :
Supreme Court of India

Brief :

Citation :
1994 Cr.L.J. 2269

Held
The code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances for given situations to private persons. Further, when as accused persons appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the persons into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or ‘surrender’. In every arrest, there is custody but not vice versa and that both the words ‘custody’ and ‘arrest’ are not synonymous terms. Though ‘custody’ may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation, which if under all circumstances accepted and adopted, would lead to a starling anomaly resulting in serious consequences.

A Magistrate can himself arrest or order any person to arrest any offender if that offender has committed an offence in his presence and within his local jurisdiction or on his appearance or surrender or is produced before him and take that person (offender) into his custody subject to the bail provisions. If a case is registered against an offender arrested by the Magistrate and a follow up investigation is initiated, or if an investigation has emanated quo the accusations leveled against the person appearing or surrendering or being brought before the Magistrate, the Magistrate can in exercise of the powers conferred on him by Section 167(2) keep the offender or person under judicial custody in case the Magistrate is not inclined to admit that offender or person to bail.

To invoke S.167(1), it is not an indispensable pre-requisite condition that in all circumstances, the arrest should have been effected only by a police officer and none else and that there must necessarily be records of entries of a case diary. Therefore, it necessarily follows that a mere production of an arrestee before a competent Magistrate by an authorized officer or an officer an officer empowered is arrest (notwithstanding the fact that he is not a Police officer in its stricto sensu) on as he reasonable belief that the arrestee has been guilty of an offence punishable” under the provisions of the special Act is sufficient for the Magistrate to take that person into the custody on his being satisfied of the three preliminary conditions, namely, (1) the arresting officer is legally competent to make the arrest; (2) that the particulars of the grounds for such arrest exist and are well-founded; and (3) that the provisions of the special Act regard to the arrest of the persons and the production of the arrestee serve the purpose of S. 167 (1) of the Code.

It cannot be said that either the Officer of Enforcement or the Customs Officers is not empowered with the power of investigation though not with the power of filling a final report as in the case of a Police Officer.

The word ‘investigation’ cannot be limited only to police investigation but on the other hand, the said word is with wider connotation and flexible so as to include the investigation carried on by any agency whether he be a police officer or a person not being a police officer under the direction of a Magistrate to make investigation vested with the power of investigation.

The expression ‘investigation’ has been defined in S.2(h). It is an inclusive definition. It being an inclusive definition the ordinary connection of the expression ‘investigation’ cannot be overlooked. An “investigation” means search for material and facts in order to find out whether or not an offence has been committed/ it does not matter whether it made by the police officer or a customs officer who intends to lodge a complaint.

The word “investigation’ though is not shown in any one of the sections of the Customs Act, certain powers enjoyed by the police officer during the investigation are vested on the specified officer of customs. However, in the FERA the word ‘investigation’ is used in various provisions namely, Section 34, 37, 38 and 40 reading…..” any investigation or proceeding under this Act…” though limited in its scope
 

Kalpana.S
on 14 February 2008
Published in Criminal Law
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