The Rights of the Accused- A Study on the Rights of the Arrested PersonPrint this Table of Contents Table of Cases Table of Statues Introduction Research Methodology Chapter 1: Chapter 2: Chapter 3: Conclusion Bibliography Table of Cases England: 1. Christie v. Leachinsky [1947] 1 All ER 567. India: 1. Ajit Kumar v. State of Assam 1976 CriLJ 1303. 2. Ashok v. State 1987 CriLJ 1750. 3. Bir Bhadra Pratap v. D. M. Azamgarh AIR 1959 All 384. 4. Citizens for Democracy v. State of Assam (1995) 3 SCC 743. 5. D. K. Basu v. State of West Bengal AIR 1997 SC 610. 6. D. P. Ghosh v. State of West Bengal (1972) 2 SCC 656. 7. Dwarkadas v. Ambalal Ganpatram 28 CWN 850. 8. Gauri Shankar v. State of Bihar AIR 1972 SC 711. 9. Gharban Ali v. Intelligence Officer 1996 CriLJ 2420. 10. Govind Prasad v. State of West Bengal 1975 CriLJ 1249. 11. In re Madhu Limaye AIR 1969 SC 1014. 12. Iqbal Kaur Kwatra v. Director General of Police 1996 CriLJ 2600. 13. Joginder Kumar v. State of Utter Pradesh AIR 1994 SC 1349. 14. Khatri (II) v. State of Bihar (1981) 1 SCC 627. 15. Manoj v. State of Madhya Pradesh (1999) 3 SCC 715. 16. Nabachandra Singh v. Manipur Administration AIR 1964 Mani 39. is that of a police officer reading out the Miranda rules to the arrested. State of Punjab v. L. Om Prakash Dwivedi v. State of Uttar Pradesh 1995 CriLJ 2335. Delhi Administration (1978) 4 SCC 494. 22. based on what one has seen in innumerable movie scenes. 2. State 1996 CriLJ 603. Kankadu AIR 1954 Hyd 89.”[1] The title of this paper is „the rights of the accused‟. 29. State of Madhya Pradesh (1990) 3 SCC 119. obliging him to be obedient to the law”.[4] When one thinks of arrest. during the process of trial and the like.[2] Arrest means the total restraint and complete deprivation of liberty of a person by legal authority or at least. Natverlal v. whether rights of an accused in themselves are a reality or whether they are. Sunil Gupta v. 23. Abdul Razak AIR 1961 Bom 42. 27. State of Gujarat 1983 CriLJ 1124. The Code of Criminal Procedure. 28. State 1996 CriLJ 1536. The Indian Penal Code. Padam Dev v. Of course. State of Hyderabad v. State v. 26. . this paper shall focus on this specific aspect. Dani AIR 1978 SC 1025. at the time of search and seizure. Nandini Satpathy v. P. Rajani Kanta v. in fact. Ram Autar AIR 1955 All 138. Vimal Kumar Sharma v. Again. 1973. 1861. the question that is relevant to us is whether these rights apply in India and more importantly. Introduction “To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law enforcement machinery on the other. primarily of American origin. 25. It includes the rights of the accused at the time of arrest. again. 32. 30. However.17. 31. 18. The Police Act. The definition of arrest is “a restraint of a man‟s person. Delhi Administration (1980) 3 SCC 526. Ravi Datt 1966 AWR 776.[3] It has also been defined as “to restrain or detain a person by lawful authority”. restricted merely to imagination. that he has the right to a lawyer and so on. Prem Shankar Shukla v. Prabhunarayan v. Sharifbai v. Ajaib Singh AIR 1953 SC 10. State of Madhya Pradesh 1987 CriLJ 339. 20. 24. 19. this subject is quite vast and involves many facets. fostered by television and films of American origin. Vikram v. 1860. When the researcher was faced with the task of selecting a specific aspect of the rights of the accused. 21. Sunil Batra v. informing him of his rights. is a perennial problem of Statecraft. 3. by apparent legal authority. Table of Statutes 1. one knows by now that the arrested person has the right to remain silent. the picture that most often springs to one‟s mind. State of Himachal Pradesh 1989 CriLJ 383. State of Orissa 1975 CriLJ 83. she chose to concentrate on the rights of the arrested person. Thus. Ram Narain Gupta v. In this regard. this paper can go into the recommendations of various committees on the subject matter. obligations and responsibilities on the other. The person arrested must also be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. the person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed. much attention has been focussed on the way the police treat arrested persons. that he has been arrested and is being detained at the particular place. rape. State of West Bengal[7].g. The eternal question has always been the following: how much is too much? Are the police given the absolute authority to do as they like with the arrested person to ensure that justice is ultimately done or is it in order to render justice while ensuring that rights of the arrested are fully protected? In recent times. The accused is a habitual offender and unless kept in custody. However.[5] Arrest is also about balancing the rights of the individual with that of society‟s rights since a person is normally arrested for a crime that is usually defined as a wrong against society. This paper shall further endeavour to study the case law in relation to these provisions and try to determine the position of the Indian legal system with regard to rights of the arrested persons. This case has laid down several important dos and don‟ts of arrest. often considered as the encyclopaedia on the law of arrest.[6] Following such recommendations. etc. this paper shall attempt to resolve whether these rights ensured to the arrested person exist merely in the letter of the law or are put truly in practice by the police. and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims 2. the Third report of the National Police Commission has specified that arrest can be considered justified in the following cases: 1.It has been observed by the Supreme Court that the law of arrest is one of balancing the rights. it is important to examine the law of the land that ensure rights to the arrested person. The most important of them all isD. The case involves a grave offence like murder. In several instances. For e. Finally.. before. this judgement has tried to ensure the very least of rights to the arrested. dacoity. this paper must go into the provisions of the Code of Criminal Procedure[8] of India and determine which provisions ensure rights to the accused on arrest. Basu v. as soon as practicable. and his duties. robbery. the necessity of arrest itself has been questioned. The accused is likely to abscond and evade the process of law 3. The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint 4. Thus. In order to do this. liberties and privileges of the individual on one hand. he is likely to commit similar offences again. there have also been several cases that have discussed in detail the rights of the arrested person and what the police can and cannot do. Research Methodology .. K. P.P. Research Questions: The questions that arise in the course of this study are: 1.C. 3.P. Scope and Focus: As the title of this paper is the rights of the accused. What are the consequences of violating these rights of the arrested person? Chapterization: This paper has been divided into the following chapters: Chapter 1: deals with the concept of unnecessary restraint. What does the period of 24 hours from the time of arrest include? 4. and. Section 50. Chapter 2: examines the requirement to inform the accused of the grounds of his arrest. Section 49. Section 57. .P. This paper is focussed on a study of the rights of the accused with respect to the arrest of the accused. comprising of commentaries on the Cr.C.Aim and Objective: The aim of this paper is to examine the rights of the accused within the framework of the Cr. as it would encompass every right of the accused during the pre-trial and post-trial procedure. the scope of this paper would be quite vast. which requires that the arrested must be produced before a Magistrate within 24 hours of his arrest. Must the grounds of arrest be informed to the arrested immediately? Is there any specific form of communication of the same? 3. Secondary sources of information have also been utilized. It is the objective of this paper to study the rights of the accused on arrest as ensured by the Cr.C. Method of Analysis: This paper has used a blend of descriptive as well as analytical forms of writing. This has been further narrowed down to a study of some specific sections of the Cr. that requires the police to inform the arrested of the reasons for arrest and whether the arrested person is entitled to bail. What is meant by unnecessary restraint of the accused on arrest? 2.C. mainly from the Internet. Sources of Data: This paper has utilized primary sources of information in the form of statutes and case law. as well as articles on the law of arrest. 2. namely: 1. that specifies that no unnecessary restraint can be imposed on the arrested person. Chapter 3: discusses the provision for producing the arrested before a Magistrate within 24 hours of his arrest. while arresting an accused. It has been opined that it is not necessary that a police officer. He further held that Section 49 of the Cr.P. Chapter 1: Handcuffs – a necessity? Section 49 of the Cr. Justice Krishna Iyer held that to handcuff a person is to punish and humiliate the person. Delhi Administration[14]. Thus. Handcuffs fetter the minimal freedom guaranteed under Article 19 of the Constitution of India and therefore this cannot be done.Mode of Citation: This paper has employed a uniform mode of citation throughout. this section relates to the manner in which the accused is treated after his arrest.[10] Of course. embodies the core principle of controlling the power to impose restraint on the prisoner while in custody and if restraint must be used.[11] Once this has been done. it must used only to prevent the escape of the prisoner and no more. The police would be justified in handcuffing the arrested person only under exceptional circumstances or if there were reasons to believe that the accused would attempt to escape after arrest. should immediately put handcuffs on the accused. states that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape. The Court also held that handcuffs are permissible only in cases where the person concerned has a credible tendency for violence and escape and when all other modes of restraint have not worked. The learned Judge also held that in the event that a police officer deems handcuffs necessary. Justice Pathak. they would in effect be given a blanket power to impose oppression on the arrested as the person so restrained would then be rendered helpless would be in a rather vulnerable state. Unless there is a clear and present danger of the prisoner attempting to escape out of police control. In the landmark case of Sunil Batra v. Thus. handcuffs must be regarded as the last resort and must not be imposed merely by way of routine or convenience.[9] It has been contended that this section lays down the minimal amount of restraint required in order to prevent an arrested person from running away. this case embodies the basic principle that unless absolutely necessary.[12] The reason for such a provision appears that if police officers are authorized to handcuff all those arrested.C. such suspicion being based on the prisoner‟s past record. it goes without saying that in order to apply this provision and exercise reasonable restraint on the accused.C. in his concurring judgement. This discretion must applied depending on the facts and circumstances of each case. he must exercise such power with moderation and must not use it maliciously or arbitrarily. He also held that in order to be consistent with the Constitution. found that even if a police officer is empowered to restrain a person by handcuffs. he must first be arrested. This decision has influenced subsequent judgements on the use of handcuffs and has been heavily relied on. he must note down the reasons for doing so. handcuffs . the debate on this matter has more or less been restricted to the question of whether it is necessary to handcuff the arrested person and whether this would amount to unnecessary restraint. In Prem Shankar Shukla v.P. Delhi Administration[13] the Supreme Court pronounced that fetters should be shunned as violative of human dignity and that the indiscriminate use of handcuffs is illegal. handcuffs cannot be justified. C. In Citizens for Democracy v.P. State of Madhya Pradesh[15] it was held that it is wrong to equate the question of custody or restraint with the handcuffing of the person concerned. The Court held the arrest to be dishonest and fraudulent. Thus. The most important principle laid down in this case was that an accused in a criminal trial is presumed to be innocent until proven guilty beyond reasonable doubt. Even when they do use handcuffs. State of Assam[17]. Hence. However. was in fact aware that what he was doing was violative of the law. the escort party must record the reasons for doing so in writing and intimate the court so that the court may either approve or disapprove this action and issue necessary directions. Thus. the reasons for doing so must recorded in writing.[19] Chapter 2: A need to know Why? . The Court also held that there is no provision that implies that unless a person is handcuffed. it was found that the relevant considerations for putting a prisoner in fetters are the character. despite the fact that they did not evade or attempt to evade their arrest. at the same time they must not infract the rights guaranteed to the prisoners under the Constitution under Articles 14. before the hearing of a case against a police officer. any violation of this provision is punishable under Section 220 of the Indian Penal Code. as it appears fairly convenient for the police officer to record a credible sounding reason if he so desires. it seems a well-established law in India that the use of handcuffs by the police authorities is prohibited unless absolutely unavoidable. For example. Perhaps. State of Madhya Pradesh[16] the Supreme Court held even in extreme circumstances that necessitate the escort party to bind the prisoners in fetters. lays down that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape. In the case of Sunil Gupta v. he is not entitled to be heard on the question of his release on bail. antecedents and propensities of the prisoner. using fetters just on whims and fancies is not permissible. instead of merely mandating reasons for handcuffs. 19 and 21. this must be kept in mind and unnecessary harassment of citizens must be avoided. while this may be a safeguard against arbitrary action.[18] It is therefore clear that the Courts of this country have recognized that arrested persons have the right to be treated with dignity. the complainant and his witnesses were arrested and then beaten up thoroughly. Another instance of unnecessary restraint is where the arrested persons are beaten or subjected to other forms of torture.must not be imposed on the arrested person and even if they are. the level of accountability of the police should be increased. Thus. the researcher is doubtful whether this will actually curb the instances of handcuffing. In Prabhunarayan v. The Court also held that while the police are under a public duty to prevent the escape of prisoners and provide them with safe custody. Section 49 of the Cr. as it becomes necessary to consider whether a police officer acting in a manner suggestive of exceeding his powers. It is also punishable under Section 29 of the Police Act. Further. there must be reasonable justification on record for doing so. the most obvious question that will arise in his mind is „Why?‟ After a while. This Section also provides that when a police officer arrests any person not accused of a non-bailable offence without a warrant. whenever an arrest is made without a warrant. including the full details of the offence for which he has been arrested and whether or not he is entitled to bail. either by a policeman or by a private person. he must forthwith communicate to him the full particulars of the offence for which he is arrested or other ground for arrest. this principle of law where the arrested person has the right to be informed of the grounds for his arrest appears to be well established and hence. The information to be given to the arrested person should be such that he must know the reason and fact leading to his arrest.P. Thus. A corollary to this principle is that if a subordinate officer is deputed by a senior officer to arrest a person. as soon as possible.[21] It is also important to note that this Section is in conformity with Article 22(1) of the Constitution. merits considerable consideration. They also held that these provisions are necessary so that the arrested person knows what exactly the accusation against him is so that he may consult a legal practitioner and be defended by him. misapprehension or misunderstanding in the minds of the arresting authorities. Leachinsky[25] where the House of Lords held that an arrest without a warrant can be justified. Thus. In England. it has been said that this provision embodies the fundamental safeguard for the personal liberty of the arrested person.[23] There are similar provisions in the Constitutions of the United States of America as well as in the Japanese Constitution. then before making the arrest. Thus. the foremost question will be „How can I get out?‟. Thus. which provides that no person on arrest shall be detained without being informed of the grounds for such arrest. if required. In Vikram v. In re Madhu Limaye[22]. the Supreme Court held that the requirements of Article 22(1) are meant to afford the earliest opportunity to the arrested person to remove any mistake. Section 50 of the Cr. he shall notify the person to be arrested the substance of the written order given by the senior police officer specifying the offence or other cause for which the arrest is to be made. The Court also held that while it is difficult to prescribe a particular form in which such information must be communicated to the arrested person.When a person is arrested.C. then the arrest will be deemed illegal and will make the arresting officer liable to all remedies that are available in the case of an illegal arrest.[24] It would be useful to cite the case of Christie v. on his behalf. he shall inform the person so arrested of his entitlement to be released on bail so that he may arrange for bail and for sureties. . specifically provides that when a police officer arrests a person without a warrant. the arrested person has a right to be informed not only that he is being arrested but also of the grounds for the arrest. once the initial shock of the arrest subsides.[20] If an arrest is made without complying with these requirements. State[26] the Allahabad High Court held that the arresting officer is supposed to record in the police papers the particulars and grounds of arrest of a person and is also supposed to mention whether he has informed the same to the arrested person. only if it is an arrest on a charge which is made known to the person arrested unless the circumstances are such that the person arrested must know the substance of the alleged offence or where he forcibly resists arrest. under this Section the arresting officer is bound to inform the arrested person the grounds for his arrest. is deprived of a reasonable opportunity to clarify any mistake that may have been made. if a person is apprehended at the spot while committing the crime it must be supposed that he knows the reasons for his detention. The Court further held that this Section confers a valuable right to the arrested person and nonconformity with its mandatory provisions would lead to non-conformity with the procedure established by law. does . This was held in Om Prakash Dwivedi v. the researcher believes that the grounds of arrest must be informed to the person at the time of arrest itself. This may result in a situation where the arrested person is forced to live in ignorance of his offence and hence. time and place of the alleged offence. State of West Bengal[30] the Supreme Court held that while the object of communicating the grounds of arrest is to enable the concerned person to make a representation against the arrest.P.[29] Here the Allahabad High Court held that it is important that the person concerned must be fully aware of the reasons for his detention. the arrest cannot be challenged on the grounds of violation of Article 22 or Section 50 of the Cr. State of West Bengal[27] held that the provisions of Section 50 of the Cr. P. However. communication of the grounds of arrest is mandatory.the bare facts leading to his arrest must be given to him.C. State of Uttar Pradesh[31] the High Court held that the words „as soon as may be‟ do not mean that the grounds of arrest must be communicated immediately at the time of arrest. the concerned person will not be able to take necessary steps for freeing himself. State[28] upheld this case wherein. It has also been held in several cases that where a person is arrested during the commission of the offence. Further. renders the arrest and detention of the person concerned illegal. The Court held that this is a Constitutional safeguard and hence. as the tone of these judgements lead the researcher to believe. P. State. Without knowing why he has been arrested. In Vimal Kumar Sharma v. The case of Govind Prasad v. Ashok v. Another question that arises is what is meant by communication of the grounds of arrest? Must it be in writing or is oral communication sufficient? Section 50(1) of the Cr. The question that arises now is what period of time can be considered as „soon‟? Must the grounds of arrest be communicated immediately after arrest or must they be communicated as soon as may be practicable? In D. He must also know the date. then it is not necessary to communicate to him the grounds of his arrest as it appears reasonable to assume that in such circumstances the arrested person will be well aware of the reasons for his arrest. then it opens the doors to exercise of discretionary powers. are material and cannot be overlooked as it brings the law in conformity with Article 22(1) of the Constitution. in these cases the failure of the police authorities to inform him of the reasons for his arrest will not affect the legality of such arrest and hence. the arrested person is well within his rights to point out whether such provisions have been violated. They should be brought to the knowledge of the arrested person as soon as possible. The Court held that the grounds of arrest must be conveyed as early as practicable and without avoidable delay. communicating the grounds of arrest „as soon as may be‟ must be interpreted in the correct context. the Madhya Pradesh High Court held that the provisions of Section 50 are in conformity with Article 22(1) and noncompliance with the mandatory provisions of the Code amounts to non-compliance with the procedure established by law and thus. Thus. However. Ghosh v. If it is left open to the arresting authorities to communicate the grounds whenever they find the time to.C.C. as has been mentioned earlier.P. As long as it can be proved that the arrested person is aware of the particulars of the offence for which he has been arrested.[34] The researcher believes this to be an essential pre-requisite to communication of the grounds of arrest. such arrest is illegal. continuing to break laws. if he is so permitted. The Magistrate can pass an order of remand under Section . Chapter 3: 24 hours – Deadline or Guideline? One of the most important rights of an arrested person is that he be produced before a Magistrate within twenty-four hours of the arrest. non-compliance with the bedrock of our legal system. However. exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate‟s Court”. in the absence of a special order of a Magistrate under Section 168. it would be far worse to allow an innocent man to surrender helplessly to the arresting authorities without even the bare knowledge of his rights. Another aspect that must be kept in mind with regard to communication of the grounds of arrest is that the communication must be made in a language understood by the arrested. the arrest made by the police officer is illegal if the oral communication is not explained. this leads the researcher to believe that as long as the grounds of arrest are communicated. However.P. It is true that such compliance may result in habitual criminals taking advantage of this provision and thus. This is laid down in Section 57 of the Cr. did not inform him of his right to bail. then he will not be aware of his rights and hence. based on the conjecture that the emphasis is on communication.not specify that the grounds of arrest need to be brought to the notice of the arrested person in writing. he in fact violates the Constitution itself. he must be produced before a Magistrate within twenty-four hours of the arrest. If the arrested person very simply does not understand what is being communicated to him. more seriously. the Constitution. The researcher believes that this provision has to be observed strictly so that it can be ensured that the arrested person can avail of bail. Hence. when a person is arrested. this will not result in compliance of Section 50(1). it was held in Ajit Kumar v. we have seen that the Courts have insisted on strict compliance with the provisions of Section 50 and the various facets of this provision have been examined. Section 50(2) specifies that the arresting authority have to inform the arrested person whether or not he has the right to bail. Non-compliance with this provision will again result in illegality of arrest. Therefore. such omission to inform the arrested person of the reasons for his arrest amounts not merely to non-compliance with law but. It becomes clear that if a police officer violates any part of these provisions then. Thus.[32] Thus. be it oral or in writing. InPadam Dev v. any form of communication should be sufficient. it is sufficient. which states that “no police officer shall detain in custody a person arrested without warrant for a longer period that under all the circumstances of the case is reasonable. State of Himachal Pradesh[35] the Court held that where the police had obtained no warrant for the arrest of the accused and at the time of arrest.C.State of Assam[33] that where any communication about the offence is made orally by the police officer to the person arrested and the kind of communication is unknown to the extent of whether the full particulars of the offence were told to the arrested or only the concerned Section was related to him. and such period shall not. then under these circumstances. it becomes possible to determine whether the arrest itself was valid and legal. Another viewpoint is that the right to be brought before a Magistrate within twenty-four hours of arrest has been created so that arrest and detention are not carried out with the purpose of extracting confessions or compelling information by means of duress or terror and that police stations are not used as proxies for prisons.[38] This principle has been upheld in the case of Nabachandra Singhv.[36] While it may seem superfluous to have the same provisions in the Constitution as well as in the Cr. by rendering this provision in the nature of a fundamental right. the right to know the grounds of arrest as well as the right to bail have been facilitated. B. However. some Magistrate will have “seisin” of what is going on and some knowledge of the nature of the charges against the accused. however.[39] One may wonder why such a provision has been incorporated into the Cr. this cannot exceed a term of fifteen days. R. By mandating the production of the accused before a Magistrate. then he may keep the arrested person in custody until the investigation is so completed.C. the provision that the arrested person should be brought before a Magistrate within twenty-four hours is particularly desirable because it ensures the immediate application of a judicial mind to the legal authority of the person making the arrest and legality of the arrest made by him. It must also be noted that as in the case of Section 50. Ambedkar stated that by introducing this provision in the Constitution. if the accused is kept in police custody for more than twenty-four hours. As a result. He can also be produced before a Magistrate who has the authority to try the case and hence. for his detention.. can remand the person into custody for a term more than fifteen days but less than sixty days. Ajaib Singh[45] that arrests without warrants require more protection than those with warrants.C.[44] It was held in State of Punjab v.[42] In Dwarkadas v. Manipur Administration. Dr.167 of the Cr. There are varying theories regarding the object of this Section. then he must produce the arrested before the Magistrate immediately. the basic rights of the accused such as the right against unnecessary restraint. Therefore. The researcher is of the opinion that this provision is very important.[41] It is the objective of this provision to enable the arrested person to make a representation before a Magistrate.C.P. it becomes clear that the Legislature did not think it necessary to detain the accused in every case for the purpose of facilitating investigation and that the law does not favour detention in police custody. If the arresting officer considers that the investigation can be completed within twenty-four hours.P.P. if the investigation cannot be completed within twenty-four hours. However. then the danger of the accused being subject to the vagaries and possible excesses of the police . Moreover.Ambalal Ganpatram[43] the Court held that the precautions laid down in this Section are designed to ensure that within twenty-four hours. Section 57 is also in conformity with Article 22(2). incomplete the information may be. there would be a limitation upon the authority of the Parliament as well as the Provincial Legislatures not to abrogate the rights guaranteed under this provision. It has been observed that the intention of the Legislature was that an accused person should be brought before a Magistrate competent to try or commit the case to Sessions with as little delay as possible. except in special cases. very strict compliance with the provisions of this Section is mandated as a constitutional right.[37] Thus.[40] It has also been said that on a perusal of this Section along with Section 167. in Manoj v. often contentious. In State v. The Court also held that it does not give the police officer an absolute right to keep a person in custody till twentyfour hours.[48] In the case of State of Hyderabad v. the Bombay High Court held that mere taking into custody for the purpose of enquiry does not amount to arrest and that the time of twenty-four hours must be calculated from the time of formal arrest. keeping in mind the distance and other local conditions. Kankadu[49] the police officer sent the accused to the Magistrate within twenty-four hours of his arrest but the Magistrate was on leave. the total number of hours that an arrested person has been detained cannot be added up to . the researcher believes that the scope for “using” this Section to his advantage is very wide. Nevertheless. On a reading of this judgement. If arrest is understood as a curtailment of the accused person‟s liberty. That is. Director General of Police[47] where the Andhra Pradesh High Court held that a person in custody cannot be detained without producing him before the Magistrate under the pretext that no actual arrest has taken place. Ram Autar[51]. the researcher doubts whether such an interpretation is in keeping with the spirit of the Cr. Intelligence Officer[46]. the Magistrate must take care to ensure that the time taken to travel is reasonable. Another question that arises is whether the twenty-four hour period includes the time taken to travel to the Magistrate or is it strictly the time in police custody? The most popular opinion appears to be that the time taken to travel to the Magistrate should not be counted in the twenty-four hours.increases and the accused may be pressurized into saying something that he did not intend to. for the purposes of investigation. would this also not amount to arrest? Thus. Thus. Further. The police officer may deem that the formal arrest of the accused has happened only after hours of interrogation and of keeping the accused confined within the limits of the police station. the researcher believes that the 24-hour clock should start from time the police curtails the accused‟s liberty.C. The Court in this case held that the police officer had complied with the provisions of the Section and the delay caused was due to no fault of his and thus. However. One of the oft asked questions in relation to this Section is what constitutes twenty-fours? At what point does the clock start ticking? In Gharban Ali v. an extension of time was permitted. with respect to this Section is that the twentyfour hours limit in police custody is applicable only for one continuous stretch. the police officer was directed to send the accused to the District Magistrate‟s Court and hence. the Court laid down that this twentyfour hour time limit des not empower the police to keep an arrested person in custody a minute longer than is necessary. in most cases it has been laid down that the time frame of twenty-four has to be complied with strictly. State of Orissa[52] where the Orissa High Court held that the twenty-four hours prescribed in Section 57 is the outer most limit beyond which the arrested person cannot be detained in police custody.P. Another interesting point. This principle was upheld in Rajani Kanta v. more than twenty-four hours elapsed before the accused could be produced before the District Magistrate. If the police officer is given the freedom to compute the twenty-four hours from the time of “formal” arrest then. section that clearly aims at minimal curtailment of liberty. State of Madhya Pradesh[50] the Supreme Court found that the only time permitted to be excluded from the period of twenty-four hours is the time necessary for going from the place of arrest to the Court of the Magistrate. This contention has been supported in Iqbal Kaur Kwatra v. especially the arrested person. it emerges that these rights cannot be abrogated by the police officers and that if they do happen to violate any of these rights. State of Bihar[56] the Supreme Court clearly laid down that the provision in Article 22(2) inhibiting detention without remand is very healthy as it enables the Magistrates to keep check over the police investigation and that it is necessary that the Magistrates enforce this provision. bring him under the purview of this Section. strict compliance with the provisions of this Section is required. Wherever it is found disobeyed. then the detention of the arrested person after the order of remand by the Magistrate is no longer detention by the police officer himself and that he is merely carrying our the orders of the Magistrate.P. the power of arrest given to the police is being misused till this day.C. and the related case law in detail. Having done so. Conclusion This paper has examined three provisions of the Cr. these incidences must be understood in the context of the times and stress under which the police work. the Judiciary should come down heavily on the police. is this a reality? It is generally believed that in spite of the various safeguards in the Cr.[57] It is also believed that the police often use their position of power to threaten the arrested persons and take advantage of their office to extort money. The Court also held that once the arrested person is produced before the Magistrate within twenty-four hours and the Magistrate. after having examined the different provisions that guarantee different rights to the accused.[54] The accused is also entitled to move a writ of habeas corpus directing his release. Failure to comply will result in wrongful detention of the accused and the police officer is liable under Section 340 of the Indian Penal Code.twenty-four hours and therefore. In the case of Sharifbai v. While it can be said that the police must do all they can to curb law breakers and that. There have also been innumerable reports on custodial violence that lead many to believe that deprivation of basic rights of the arrested persons has become commonplace nowadays. after applying his mind remands him to detention. it may appear that the law of the land is very clear – the rights of the accused. it cannot be argued that arrested persons are not entitled to the minimal of rights simply because they . In Khatri (II) v. The final question that must be asked at this point is. Abdul Razak[55] the High Court held that the police officer who fails to produce the arrested person before a Magistrate within twenty-four hours is guilty of wrongful detention of the person whom he has arrested.C. As has been mentioned above.[53] Thus. they are not only committing a crime under the Indian Penal Code but are also violating fundamental rights guaranteed by the Indian Constitution. Hence.P. then he cannot claim his right under Article 22(2) or Section 57 during any fresh arrest as he has to have spent twenty-four hours at a single stretch in the custody of the police before doing so. there is no place for laxity on the part of the police force in ensuring that the arrested persons avail of their rights. if the accused has been arrested on prior occasions and detained for period totalling twentyfour hours. must be protected. as well as the Constitution. Thus. It must be remembered that this society includes all people. the abuse of power by the police has decreased drastically. Instead. informed whether he is entitled to bail and of course. If a police officer does not ensure that these rights are meticulously upheld and protect the interests of the accused. Hence. it seems to the researcher that in the final analysis. in complete ignorance of their alleged crimes. after the D. The Mallimath Committee in its Report on the reforms in the Criminal Justice System has stated that the accused has the right to know the rights given to him under law and how to enforce such rights. it appears that the Commission would rather that arrests should be avoided as far as possible. an accused person is still a human being entitled to fundamental rights. Having examined these provisions and also the recommendations of various committees. Further the Commission also suggested that arrests be made only where it is necessary in order to infuse confidence among the “terror stricken victims”. it is still the police‟s duty to protect the rights of the arrested. This has been attributed to the Colonial nature of our Criminal Justice System where the duty of arrest was thrust upon the Indian officers while the Britishers drew up the charge against the accused. The Law Commission of India. only a summons ought to be issued for appearance of the accused in Court. produced before a Magistrate within twenty-four hours of his arrest. Also. the Commission recommended that no arrests should be made for what are now classified as bailable offences. The Commission also approved of the recommendations made by the National Police Commission. including the arrested. after a study conducted by the National Human Rights Commission. Thus.[58] There have also been criticisms that the police fail to inform the persons arrested of the charge against them and hence. However. Another proposal was that no person should be arrested for the mere purpose of questioning as such arrest would amount to unlawful detention.[59] Thus. Basu judgement. in its 177th Report. K.have allegedly broken the law and are therefore “arrested”. the Law Commission found that the number of arrests for petty offences is more than those for serious offences. Arrest or not. let the arrested persons flounder in custody. According to the same Report. Thus. it is entirely possible that the English origins of the Indian Criminal Justice system may have resulted unwittingly in the rights of the arrested persons falling through the cracks. who else can fill his shoes? Bibliography Articles: Internet: . has acknowledged the fact that the law of arrest in itself is a balancing act between the rights of the individual and the rights of the society. these are the stepping-stones and the basic rights he is entitled to. it is the duty of the police to protect the rights of society. in a revolutionary move. a police officer must make sure that handcuffs are not used unnecessarily. that the accused is not harassed needlessly. While these are not the sum total of the rights available to the arrested accused. as mentioned earlier. in light of the discussed provisions. that the arrested person is made aware of the grounds of his arrest. G. (2001) 1 Comp L J (Journal) 12. Pitman Publishing. Mitra on the Code of Criminal Procedure.com/thehindu/2001/02/23/stories/05232523. 5. Criminal Procedure. S. 6. New Delhi. [3] R. L. 2001. 2. New Delhi. at (visited on 16th July. Mallick. “Recommendations of the Mallimath Committee on reforms of Criminal Justice 2. Lucknow. Nagpur. London. The Code of Criminal Procedure. Ashoka Law House. Wadhwa and Co.. P. 1975. 1973. Ramanatha Aiyar. 9. Books: 1. 53. System”.nic. Nagpur.htm>. Dhavan. 1994. (2001) 1 Comp L J (Journal) 12. 1987.. Justice K. 1973. 1999. 1997. the Criminal Procedure Code shall be referred to as the Cr. Rajeev Journals: 1. 4. S. The Law Lexicon. R. Wadhwa and Co. Code of Criminal Procedure. Delhi Law House. 2. Modern Publishers (India). 2000. 1998. D. 8. D. 177th Law Commission Report. Ramanatha Aiyar. Shahi. [8] For the sake of convenience. B. 1987. 1950. Lucknow. Dictionary of Law. R. Miscellaneous: 1.pdf>. V. C. Dani AIR 1978 SC 1025. Calcutta. Raghuraman. 7. Sarkar & Sons (P) Ltd. [5] Joginder Kumar v. 1998. 1998. 3. Curzon. The Code of Criminal Procedure. Curzon. 85. p.hinduonnet. Wadhwa and Co. Delhi. 1999. P. Basu. Kelkar. B. Calcutta. M. Princep‟s Commentary on the Code of Criminal Procedure. Orient Publishing Co. Sarkar. Central Law Agency.org/Topics/Law/2003/malimath-recommendations. [4] L. D. The Code of Criminal Procedure. [2] P. State of Utter Pradesh AIR 1994 SC 1349. Lucknow. p. . V. at on (visited on 16th July 16th July. Shoorvir Tyagi. The Law Lexcicon. Batuk Lal. Kamal Law House. 24. London. Criminal Procedure. 2003)<http://lawcommissionofindia. “Consultation Paper on the Law relating to Arrest”.. hereafter. “Law Relating to Arrests: Reforms in the Offing”. [1] Nandini Satpathy v. 2003)<http://www. P. Kelkar. [6] G. B.pucl. New Delhi. Dictionary of Law. “Law Relating to Arrests: Reforms in the Offing”. Eastern Book Co. “The Law at of (visited Arrest”. Allahabad. 4. 1987.. p. 3. Ramanatha Aiyar. B.. Eastern Book Co. Ratanlal and Dhirajlal.in/reports/177rptp2.. L. Pitman Publishing. C. The Constitution of India..htm>. Anonymous.P. 1973. The Law of Criminal Procedure.C. [7] AIR 1997 SC 610. 1997. Raghuraman.1. 1973. 2003)<http://www. Criminal Procedure Code. New Delhi. Kamal Law House. State of Bihar AIR 1972 SC 711. 262. 53. 1999. [14] (1980) 3 SCC 526. . Here the Supreme Court held that if the facts and circumstances of the case indicate that the arrested person had knowledge that he was kept in custody in relation with certain criminal charges. 2001. [12] Justice K. 2000. note 11. p.. R. [34] Supra.. New Delhi. Ravi Datt 1966 AWR 776 c. 199. The Code of Criminal Procedure. 59. D. [23] P. [22] AIR 1969 SC 1014. Lucknow. [28] 1987 CriLJ 1750. p. Basu. then he cannot claim that he was detained without information on the grounds of his detention. D. Mallick. C. p. 1973.[9] D. note 3.. 1975.. p. Sarkar. [15] 1987 CriLJ 339. 60. [17] (1995) 3 SCC 743. 1973. Modern Publishers (India). S. p. Calcutta. Code of Criminal Procedure. Delhi. Batuk Lal.f. Sarkar & Sons (P) Ltd. p. p. [25] [1947] 1 All ER 567. note 12. Delhi Law House. [33] 1976 CriLJ 1303. p. [32] This has been upheld in Natverlal v. [10] Ram Narain Gupta v. 1999. [31] 1995 CriLJ 2335. [21] Supra. [20] Supra.. Mitra on the Code of Criminal Procedure. Ashoka Law House. 141. Calcutta. [24] Id. C. [29] 1996 CriLJ 603. 1987. Ramanatha Aiyar. [19] Supra. [26] 1996 CriLJ 1536. State of Gujarat 1983 CriLJ 1124 where the Gujarat High Court held that compliance with Section 50(1) need not be in writing. note 3. 131. [16] (1990) 3 SCC 119. 1973. Criminal Procedure Code. [13] (1978) 4 SCC 494. [27] 1975 CriLJ 1249. Princep‟s Commentary on the Code of Criminal Procedure. 198. The Law of Criminal Procedure. Shahi. [30] (1972) 2 SCC 656. B. [11] S. See also Gauri Shankar v. B. Orient Publishing Co. [18] M.. [44] Supra. 284. [56] (1981) 1 SCC 627. 210. 16th July. p.. p. [48] Supra.[35] 1989 CriLJ 383. Central Law Agency. [43] 28 CWN 850. 56. note 18. [46] 1996 CriLJ 2420.hinduonnet. Wadhwa and Co. . Dhavan. [38] Batuk Lal. [37] In re Madhu Limaye AIR 1969 SC 1014 (1018). [36] The only difference that needs to be noted in this case is that Article 22(2) applies to arrests made with as well as without a warrant..in/reports/177rptp2. p.. Allahabad. note 18. “The at Law of (visited Arrest”. The same has been held in Bir Bhadra Pratap v. [39] AIR 1964 Mani 39. [49] AIR 1954 Hyd 89. [55] AIR 1961 Bom 42. Here the Court found that the purpose of this provision was to ensure that the arrest and detention of the accused is prima facie. M.. 2003)<http://www. 65. 1998.htm>.. 2003)<http://www. [57] 177th Law Commission Report. [45] AIR 1953 SC 10. The Code of Criminal Procedure. The Code of Criminal Procedure. [53] Supra.org/Topics/Law/2003/malimath-recommendations. 211. Orient Publishing Co. 2003)<http://lawcommissionofindia. [42] Shoorvir Tyagi. New Delhi. [54] Supra. [58] Anonymous. 61. “Recommendations of the Mallimath Committee on reforms of Criminal Justice [59] Rajeev System”.pucl. Azamgarh AIR 1959 All 384. p. [51] AIR 1955 All 138. note 9. 1994.com/thehindu/2001/02/23/stories/05232523. note 3.. [47] 1996 CriLJ 2600. [50] (1999) 3 SCC 715. p. 1999.htm>. at on (visited on 16th July. 150. justified. p. p. [52] 1975 CriLJ 83. 143.pdf>..nic. at (visited on 16th July. [41] Supra. D. “Consultation Paper on the Law relating to Arrest”. p. New Delhi. note 23. [40] Ratanlal and Dhirajlal. The Code of Criminal Procedure. 1973.