Criminal LawResearch Article

Illegal Arrest and its rise in Contemporary India


Author: Paridhi Agarwal, 2nd year student at Amity Law School, Noida.

ABSTRACT

The criminal procedure code, 1973 which is also commonly called as CrPc, has not defined the term arrest. Arrest in its ordinary sense means the restraint or deprivation of one’s personal liberty, it is not that each physical restrain or deprivation of liberty is considered as arrest, it is only the deprivation of liberty or movement by legal authority or at least by manifest legal authority, in a professionally competent and adept manner that amounts to arrest.
Illegal arrest is the unlawful restraint of an individual’s freedom of movement, it can occur at any time when one person detains the other without his will and approval and without any legal justification. In today’s India, corruption is at its peak due to which illegal arrests are increasing day by day. The questions like who can arrest? How is the arrest made? What are the rights of the arrested person? are covered and answered in this article. The article will also talk about some past cases that are based on illegal arrest and will also discuss the recent case of arrest of the famous journalist Arnab Goswami. The Article in the latter part will also talk about the rise of illegal arrest in today’s India and will also discuss whether compensation for illegal arrest should be given or not.

INTRODUCTION

In India, generally several citizens, mostly people from the poor and weak sections of our country, become a prey to the atrocities committed by the powerful men of our society, people from these weaker sections are many a times detained wrongfully and awarded punishments for the act of the so called high class men of our society, they are framed wrongfully and sometimes even police officers are also associated with these corrupt men, it is thus important for the individuals of our country to know who can make an arrest, how the arrest is made and the various aspects of the conduct of arrest. This paper will deal with few of those aspects in the limelight of the criminal procedural court,1973.

WHO CAN ARREST?

The code of criminal procedure [CrPc] has given various sections depicting who can make a legal arrest and in what situations.
An arrest can be made by anyone; it can be made by a police officer, magistrate or any other private person or individual who has been permitted to make such an arrest.
the members of armed forces are immune from being arrested for anything done by them while discharging their official duties except, after obtaining the consent of the government by the code. (Sec. 45).
The code of criminal procedure (CrPc) also allows in the light of section 43, any private individual to make an arrest only when the individual he is detaining is an offender who has committed a non-bailable, cognizable offence in his presence. Section 44 of the code gives magistrate (whether executive or judicial) power to make an arrest of an individual without a warrant.
Under section 41 of the same code a police officer can make an arrest, without a warrant only in cognizable offences and with a warrant in non-cognizable offences. Cognizable offences are of more heinous crimes and are of more serious nature in comparison to non-cognizable offences i.e., theft, kidnapping, murder etc.

HOW IS ARREST MADE?

Sec. 46 of the code of criminal procedure provides the mode in which arrests have to be made (whether without or with a warrant). The clause 1 of the said section allows the police officer or any other person authorised to make an arrest, the right to touch or confine the body of the person to be arrested while conducting arrest, unless there be a submission to the custody by word or action. The 3rd clause of this section however states that the arresting authority does not have any right to murder the individual to be arrested in case the individual is not accused of offence punishable by imprisonment of life and death by the Indian penal code. When the police arrests a person in execution of a warrant of arrest obtained from a magistrate, the individual so arrested shall not be handcuffed unless the prior orders from the magistrate in this regard is given to the person who is authorised to arrest.
According to section 48 of the CrPc, the individual who is making an arrest can use ‘all means’ required to make an arrest if the person that has to be arrested resists or attempts to escape from being arrested . According to section 49 of the code. A police officer may, for the purpose of arresting without warrant pursue any person who is authorized to arrest to come to such person into any place in India. Use of unnecessary restraint and inconvenience towards the arrested person should be prevented and it should only be used if they try to escape. According to section 46 of the court, no women can be arrested before sunrise and after sunset unless in some exceptional cases and, if such exceptional cases arise, the women police officer have to be there in order to conduct that arrest.

RIGHTS OF THE ARRESTED PERSON

The Code of criminal procedure also lays down laws for the arrested persons. From time to time the persons being arrested have been faced with issues regarding authoritative use of power by the people in power i.e. government officials, due to which CrPc provides various rules which protect the arrested persons by giving them rights which can be used when the Police uses its power arbitrarily, so that there is no hinderance to their fair trial. An arrested person has two types of rights, one which can be enjoyed at the time of arrest or rights that can be used at the time of trial. The rights given to the accused under the code are -:

Section 50(1) of Criminal Procedure Code, provides the accused a right to be informed about the grounds of his/her arrest. According to article 22 of the Indian constitution it is the fundamental right of every citizen at the time of being arrested to know the grounds of his arrest and in order to do this it is the duty of every police officer to inform the arrestee the grounds on the basis of which he is getting arrested. The Police is further also required to notify the accused whether the crime committed by him is a bailable offence or not.

Right to check warrant: In respect to non-cognizable offences, an arrest can only be made after a warrant is issued and the warrant should be made available for the accused to see. Therefore, the right to see the warrant is provided under section 75 of the Criminal code. This section provides the right to the accused to check whether the warrant has all the necessary details i.e., whether the warrant is in writing or not, signed by the presiding officer or not , have the court’s seal on it along with the address, name and the offence committed by the accused and if any of the details are missing, the warrants is considered ineffective.

Right of an arrestee to be produced before the Magistrate: The section 56 of the criminal code gives the right to the arrestee to be presented in front of the magistrate and the duty of the police officer who is making an arrest without warrant to bring the arrestee without any unnecessary delay before a Magistrate who has jurisdiction in the case, or before the officer in charge of the police station.”
Any individual arrested without warrant cannot be held in custody for more than 24 hours: Section 57 of Criminal Code states that police officers cannot detain a person arrested without warrant for more than 24 hours [ excluding the time which is been consumed by bring the arrestee from the place to arrest to the magistrates court .unless a special order is given to them from the magistrate under section 167.

Right to meet to advocate: Sections 41D and 303 of Criminal Code allows the arrestee the right of meeting with an advocate of his will, during the interrogation.
right to inform a family member: Section 50 of the Criminal Code provides right to inform a friend, family member or a relative of the arrested person.

Rights to medical assistance: Section 54 of the Code gives rights to the arrestee of having any kind of medical assistance after the time of arrest to both male and female.

Right to remain silent: Lastly, Article 20(3) of the Indian constitution provides the arrestee a right to remain silent. The Indian constitution provides immunity to the accused against self-incarnation.

RELATED CASE LAWS

In Joginder Kumar VS State of UP and others the honourable Supreme Court of India held that the arrest shouldn’t be merely on suspicion about the persons complicity within the crime and also, the policeman must be satisfied with the justification of such arrest on the idea of some investigation and the reasons for the arrest has to be recorded by the officer in his diary and therefore, the arrest should normally be avoided except in cases of heinous crimes.

In Bhim Singh, MLA V/S State of J&K, the Hon’ble Supreme Court held that the police officers should have greatest regard for private liberty of citizens, their malafide, high handed and authoritarian conduct in depriving the private liberty of person has got to be strong condemned during this course directed the respondent no.1 the state of Jammu and Kashmir to pay o shri Bhim Singh a Sum of rupees 50,000/- within two months.

Arnab Goswami case:
Arnab Goswami [ editor in chief of Republic TV] along with Firoz Shaikh [owner of IcastX/Skimedia] and Nitesh Sarda [ owner of smartwork] were arrested on 4th of November 2020 for abetment of suicide of Anavay Naik and his mother in 2018 suicide case by the Alibag police.
It seemed to the chief judicial magistrate court that the arrest of Goswami and the other two accused was illegal, due to which he rejected the plea of custodial interrogation by the prosecution.
The facts of the case were that approximately after 1 year of the launch of Republic TV the suicide took place at the farm house of the deceased in kavir village of Alibag taluka. The wife of the deceased(Anavay Naik) found a suicide note in which Naik alleged that he committed suicide because he was forced to end his live as he was not paid dues amounting to rupees 5.40 crore by Goswami, Shaikh and Sarda.
The judge in this case observed that the arrest appeared to be illegal as after the screening of the evidences it appeared that the connection between the suicide and the accused should have been thoroughly investigated before seeking police custody.
Even I think that the arrest was made without any solid ground of proofs since if the suicide letter was true, then the suicide committed by the mother has no proper justification. The police decision of arresting Arnab and fellow accused was abrupt and no proper investigation was done for the same.

RISE OF ILLEGAL ARREST IN CONTEMPORARY INDIA

In many parts of India, police is the only visible representative of the state and the government and therefore they sometimes feel pressured by the people to work in such an authoritative manner so as to destroy crime. While doing so, many a times they act as a judge and jury and punish those who are suspects of a crime even if they have no proper and sufficient evidence.
Around 3,963 cases of illegal detention and 2,532 cases of illegal arrest were reported in between 2011 to 2014 against the police out of which 2,127 has been disposed and 405 are pending.
During the course of same period, it has been reported that the police has almost 446 cases of custodial deaths against them out of which 74% ae still pending.
Delhi, which is a union territory and the capital of the country, comes second in the number of illegal detentions, arrests and tortures during police custody. Uttar Pradesh yet again one of the largest states of India is also the most popular state of India in terms of illegal detention and arrests by the police. more than 1000 unlawful police detention cases in India are reported.

The NHRC [National Human Rights Commission] takes note of these violations. In the period mentioned above, the NHRC has files of approximately 72 cases of illegal detention and arrest and has imposed a fine of Rs 52 lakhs, Disciplinary actions were also taken in many cases but they did not result beneficial in changing the system.
Need for right to compensation for wrongful Detention and arrest.
Various cases have come to light in recent years of wrongful detention by the police due to mistakes of facts like in the case of Assam Madhubala Mondal, several individuals were arrested and had to spend several years in jail without actually being guilty .
In the limelight of these events, recent judgements by the courts acknowledge the fact that individuals are often being falsely framed and prosecuted for offences against the state i.e. criminal offences.
Signatories are required under the International Covenant on civil and political rights to take steps to ensure the right to compensation for illegal or wrongful detention or imprisonment. However, India has made reservations in ratifying the international covenant on civil and political rights [ICCPR] in such a way that the Indian legal system does recognise the right to compensation for the wrongfully detained.
The Supreme Court of India has also recognised in a number of judgements, the need for granting compensation to the wrongfully detained as an obligatory public law remedy for the violations of fundamental rights, including wrongful arrests and incarceration. One of the examples of such judgments by the Supreme Court is, when the SC in 2018 granted compensation of 50 lakhs to Nambi Narayanan [ the former ISRO scientist] who was accused of leaking official secrets to a spy racket and was wrongfully detained for the same.
The law commission of India has given the standard which is applied in India for wrongful prosecution. According to this standard, the cases where the prosecution or police falsely, maliciously and negligently arrested a person who was not guilty of the crime, while taking into consideration international commitments the law, commission of India has suggested some amendments in the code of criminal procedure ,1973 in such a manner so that provisions for incorporation of compensation can be incorporated.
However due to lack of financial resources and knowledge by the common man related to the Supreme court judgement on this aspect, individuals do not even think about directly approaching to the Supreme Court for compensation.

Conclusion

India being the second most populated country and the world’s largest democracy whose government and government authorities work for the people and by the people has although come a long way but is yet to fulfill the purpose of democracy fully and efficiently as the people are still not safe and are being treated unfairly and unequally due to which many a times the poor and the marginalised section of our society face the adverse consequences of the acts committed by the rich and industrialised society.
Corruption has become a problem which is so deeply rooted in our country in such a manner that each and every individual is affected by it and is directly or indirectly contributing to its growth. Corruption has been considered a major consequence of illegal arrest and detainment of people, lack of knowledge of facts and lack of proper and efficient investigation of cases has also resulted in the increasing rate of illegal arrests in India.
It is the general conception that it is better to release 10 guilty persons than wrongfully incriminate 1 innocent person. Some strict laws or measures have to be taken by the government in order to make the police officers more reliable and efficient, so that the one who is guilty of the wrongful acts is actually the one who’s arrested and not some other innocent person who has been framed by the criminal.


REFERENCES

https://www.hindustantimes.com/india-news/arnab-goswami-s-arrest-in-suicide-case-appears-illegal-observes-court/story-KxvvBo73PRMhuaViF2ttQM.html

Illegal Detention

http://www.legalservicesindia.com/article/1141/Illegal-Arrest.html

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