Arrest
Mere perusal of Section 151 of the Code of Criminal Procedure makes it clear that the conditions under which a police officer may arrest a person without an order from a Magistrate and without a warrant, have been laid down in Section 151. The detention thereafter is not under Section 151 of the Code of Criminal Procedure but under the relevant provision of the Code or any other law for the time being in force as the case may be. Section 151, therefore, only provides for arrest of a person to prevent the commission of a cognizable offence by him. The provision by no stretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under Articles 21 and 22 of the Constitution of India.[1]
Section 151 of the Cr. P.C. itself makes provision for the circumstances in which an arrest can be made under that Section and also places a limitation on the period for which a person so arrested may be detained. The guidelines are inbuilt in Section 151 of the Code of Criminal Procedure itself. A provision cannot be held to be unreasonable or arbitrary and, therefore, unconstitutional, merely because the authority vested with the power may abuse his authority. But without reasonable ground no one should be arrested.
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[1]- "Ahmed Noormohmed Bhatii v. State of Gujarat", AIR 2005 S C 2115.
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Section 151, therefore, only provides for arrest of a person to prevent the commission of a cognizable offence by him. The provision by no stretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under Articles 21 and 22 of the Constitution of India.[1]
A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first - the criminal or society, the law violator or the law abider; of meeting the challenge which Mr. Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered...."[2]
Liberty is the most precious of all the human rights. It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man.
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[1] "Ahmed Noormohmed Bhatii v. State of Gujarat" AIR 2005 S C 2115.
[2] Joginder Kumar v. State of U.P. and others (1994) 4 SCC 260.
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The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on December 10, 1948, contains several articles designed to protect and promote the liberty of individual. So does the International Covenant on Civil and Political Rights, 1966. Above all, Article 21 of the Constitution of India.
The Apex Court laid down certain requirements in Joginder Kumar case[1] for effective enforcement of the fundamental rights inherent in Articles 21 and 22(1) of the Constitution of India which require to be recognized and scrupulously protected. These directions are as follow--
"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.
2. The police officer shall inform the arrested person when he is brought to the police station of this right.
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.It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with".
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[1]-Joginder Kumar v. State of U.P. and others (1994) 4 SCC 260.
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In D.K. Basu case[1] the Supreme Court has issued requirements to be followed in all cases of arrest and detention till legal provisions are made in that behalf as preventive measures. The requirements laid down are:-
"(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A 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, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
--------------------------------------------------------------------------------------------------[1] D.K. Basu v. State of West Bengal (1997) 1 SCC 416.
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(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must 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.
(6). An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be examined at the time of his arrest and major and minor injuries, if present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the (sic) Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous police board.
Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries.[1]
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[1] D.K. Basu v. State of West Bengal , (1997) 1 SCC 416.
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Chapter V of the Code of Criminal Procedure, 1973 deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is, therefore, difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system.[1]
Article 21 of the Constitution of India proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. Even Article 20 and clauses (1)
and (2) of Article 22 are born out of a concern for human liberty. As it is often said, one realizes the value of liberty only when he is deprived of it. Verily, liberty along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by our Constitution. It is the requirement of law that it should try to promote both peace of the society and personal liberty to maintain a balance between them, viz., the balance between the necessity to protect and promote the liberty of the individual and the necessity to maintain peace and law and order in the society.
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[1]"Munshi Singh Gautam v. State of M. P.", AIR 2005 S C 402.
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The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.
Lord Denning observed that :--
"A man's liberty of movement is regarded so highly by the Law of England that it is not to be hindered or prevented except on the surest grounds."[1]
The above observation has been quoted with approval by a Constitution Bench decision of the Supreme Court in Maneka Gandhi case.[2] This aspect has been repeatedly emphasized by the Supreme Court in its various decisions to which a reference will be made at the appropriate stage. Indeed, the Court has enunciated several rules and guidelines which the executive should follow before interfering with the liberty of a citizen.
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[1] Ghani vs. Jones (1970) 1 Q.B. 693 (709).
[2] Maneka Gandhi v. Union of India, AIR 1978 SC 597 .
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Despite this clear enunciation of the law many people are arrested and sent to the jail on the basis of false and/or frivolous FIRs. It is surprising that the provision for anticipatory bail has been deleted in U.P although it exists in all other States in India, even in terrorist affected States.
In case where the accused persons had appeared before the concerned Magistrates with their learned advocates and on applying for bail were granted bail without being taken into formal custody, which appears to have swayed one of the Benches of the Punjab and Haryana High Court to take a liberal view and to hold that no arrest had actually been effected. The Supreme Court in “State of Haryana and Ors. v. Dinesh Kumar's case[1] held that the said view, in our opinion, is incorrect as it goes against the very grain of Sections 46 and 439 of the Code. The interpretation of "arrest" and "custody" rendered by the Full Bench in Roshan Beevi's case (supra) may be relevant in the context of Sections 107 and 108 of the Customs Act where summons in respect of an enquiry may amount to "custody" but not to "arrest", but such custody could subsequently materialize into arrest.
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Maharashtra Chief Minister Vilasrao Deshmukh said that the decision to arrest Maharashtra Navnirman Sena (MNS) chief Raj Thackeray was not a sudden decision and that nobody was above the law. Oct., 21, 2008.
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[1] State of Haryana v. Dinesh Kumar, AIR 2008 S C 1083.
[2] Roshan Beevi's case, 1984 Cri LJ 134 (Mad) (FB).(Overruled).
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In order to obtain the benefit of bail an accused has to surrender to the custody of the Court or the police authorities before he can be granted the benefit thereunder. In Halsbury's "Laws of England" the term "arrest" has been defined in paragraph 99 in the following terms:-
"99. Meaning of arrest.- 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."
The aforesaid definition is similar in spirit to what is incorporated in Section 46 of the Code of Criminal Procedure. The concept was expanded by the Supreme Court in State of Uttar Pradesh vs. Deomen's case wherein it was inter alia observed as follows:-
"Section 46, Cr. P.C. does not contemplate any formality before a person can be said to be taken in custody. Submission to the custody by words of mouth or action by a person is sufficient. A person directly giving a police officer by word of mouth information which may be used as evidence against him may be deemed to have submitted himself to the custody of the Police. ------------------------------------------------------------------------------------------------
[1]Halsbury's "Laws of England"; [ Vol.11 of the 4th Edition ].
[2]State of Uttar Pradesh vs. Deomen, (AIR 1960 SC 1125).
Section 151, therefore, only provides for arrest of a person to prevent the commission of a cognizable offence by him. The provision by no stretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under Articles 21 and 22 of the Constitution of India.[1]
A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first - the criminal or society, the law violator or the law abider; of meeting the challenge which Mr. Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered...."[2]
Liberty is the most precious of all the human rights. It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man.
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[1] "Ahmed Noormohmed Bhatii v. State of Gujarat" AIR 2005 S C 2115.
[2] Joginder Kumar v. State of U.P. and others (1994) 4 SCC 260.
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The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on December 10, 1948, contains several articles designed to protect and promote the liberty of individual. So does the International Covenant on Civil and Political Rights, 1966. Above all, Article 21 of the Constitution of India.
The Apex Court laid down certain requirements in Joginder Kumar case[1] for effective enforcement of the fundamental rights inherent in Articles 21 and 22(1) of the Constitution of India which require to be recognized and scrupulously protected. These directions are as follow--
"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.
2. The police officer shall inform the arrested person when he is brought to the police station of this right.
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.It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with".
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[1]-Joginder Kumar v. State of U.P. and others (1994) 4 SCC 260.
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In D.K. Basu case[1] the Supreme Court has issued requirements to be followed in all cases of arrest and detention till legal provisions are made in that behalf as preventive measures. The requirements laid down are:-
"(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A 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, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
--------------------------------------------------------------------------------------------------[1] D.K. Basu v. State of West Bengal (1997) 1 SCC 416.
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(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must 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.
(6). An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be examined at the time of his arrest and major and minor injuries, if present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the (sic) Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous police board.
Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries.[1]
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[1] D.K. Basu v. State of West Bengal , (1997) 1 SCC 416.
-------------------------------------------------------------------------------------------------
Chapter V of the Code of Criminal Procedure, 1973 deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is, therefore, difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system.[1]
Article 21 of the Constitution of India proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. Even Article 20 and clauses (1)
and (2) of Article 22 are born out of a concern for human liberty. As it is often said, one realizes the value of liberty only when he is deprived of it. Verily, liberty along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by our Constitution. It is the requirement of law that it should try to promote both peace of the society and personal liberty to maintain a balance between them, viz., the balance between the necessity to protect and promote the liberty of the individual and the necessity to maintain peace and law and order in the society.
-------------------------------------------------------------------------------------------------
[1]"Munshi Singh Gautam v. State of M. P.", AIR 2005 S C 402.
-------------------------------------------------------------------------------------------------
The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.
Lord Denning observed that :--
"A man's liberty of movement is regarded so highly by the Law of England that it is not to be hindered or prevented except on the surest grounds."[1]
The above observation has been quoted with approval by a Constitution Bench decision of the Supreme Court in Maneka Gandhi case.[2] This aspect has been repeatedly emphasized by the Supreme Court in its various decisions to which a reference will be made at the appropriate stage. Indeed, the Court has enunciated several rules and guidelines which the executive should follow before interfering with the liberty of a citizen.
-------------------------------------------------------------------------------------------------
[1] Ghani vs. Jones (1970) 1 Q.B. 693 (709).
[2] Maneka Gandhi v. Union of India, AIR 1978 SC 597 .
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Despite this clear enunciation of the law many people are arrested and sent to the jail on the basis of false and/or frivolous FIRs. It is surprising that the provision for anticipatory bail has been deleted in U.P although it exists in all other States in India, even in terrorist affected States.
In case where the accused persons had appeared before the concerned Magistrates with their learned advocates and on applying for bail were granted bail without being taken into formal custody, which appears to have swayed one of the Benches of the Punjab and Haryana High Court to take a liberal view and to hold that no arrest had actually been effected. The Supreme Court in “State of Haryana and Ors. v. Dinesh Kumar's case[1] held that the said view, in our opinion, is incorrect as it goes against the very grain of Sections 46 and 439 of the Code. The interpretation of "arrest" and "custody" rendered by the Full Bench in Roshan Beevi's case (supra) may be relevant in the context of Sections 107 and 108 of the Customs Act where summons in respect of an enquiry may amount to "custody" but not to "arrest", but such custody could subsequently materialize into arrest.
-------------------------------------------------------------------------------------------------
Maharashtra Chief Minister Vilasrao Deshmukh said that the decision to arrest Maharashtra Navnirman Sena (MNS) chief Raj Thackeray was not a sudden decision and that nobody was above the law. Oct., 21, 2008.
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[1] State of Haryana v. Dinesh Kumar, AIR 2008 S C 1083.
[2] Roshan Beevi's case, 1984 Cri LJ 134 (Mad) (FB).(Overruled).
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In order to obtain the benefit of bail an accused has to surrender to the custody of the Court or the police authorities before he can be granted the benefit thereunder. In Halsbury's "Laws of England" the term "arrest" has been defined in paragraph 99 in the following terms:-
"99. Meaning of arrest.- 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."
The aforesaid definition is similar in spirit to what is incorporated in Section 46 of the Code of Criminal Procedure. The concept was expanded by the Supreme Court in State of Uttar Pradesh vs. Deomen's case wherein it was inter alia observed as follows:-
"Section 46, Cr. P.C. does not contemplate any formality before a person can be said to be taken in custody. Submission to the custody by words of mouth or action by a person is sufficient. A person directly giving a police officer by word of mouth information which may be used as evidence against him may be deemed to have submitted himself to the custody of the Police. ------------------------------------------------------------------------------------------------
[1]Halsbury's "Laws of England"; [ Vol.11 of the 4th Edition ].
[2]State of Uttar Pradesh vs. Deomen, (AIR 1960 SC 1125).
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When the question as to what constitutes "arrest" has for long engaged the attention of different High Courts as also the Supreme Court, it may not be altogether unreasonable to expect a layman to construe that he had never been arrested on his appearing before the Court and being granted bail immediately.
The decision of the Supreme Court in Niranjan Singh's case held that Custody, in the context of
When the question as to what constitutes "arrest" has for long engaged the attention of different High Courts as also the Supreme Court, it may not be altogether unreasonable to expect a layman to construe that he had never been arrested on his appearing before the Court and being granted bail immediately.
The decision of the Supreme Court in Niranjan Singh's case held that Custody, in the context of
S. 439, means physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions.[1]
In Delhi, total number of persons arrested for substantive offence is 57,163, the total number of persons arrested under preventive provisions is 39,824. 50% of the persons arrested were arrested for bailable offences. If we take U.P., the number of arrests under the preventive provisions is far above the total number of arrests for substantive offences. While preventive arrests are 4,79,404, the number of arrests for substantive offences are1,73,634. The percentage of persons arrested in bailable offences is 45.13. In Haryana, the % of arrests under bailable provisions is 94%, in Kerala it is 71%, in Assam it is 90%, in Karnataka it is 84.8%, in M.P. it is 89%, in A. P. it is 36.59%.[2]
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[1]Niranjan Singh vs. Prabhakar (AIR 1980 SC 785).
[2] The Law Commission of India, 177th report on “Arrest”.
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Large number of arrests are being made under preventive provisions as well as for bailable offences. It is difficult to believe that in all these arrests for bailable offences, warrants were issued by the magistrates. Indeed an overwhelming percentage of those arrests were by the Police without a warrant.
Under Article 21, no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. Clauses (1) and (2) of Art. 22 afford protection in the matter of arrest and detention in certain cases. Clauses (4), (5) and (6) thereof provide for preventive detention and constitutional safeguards relating thereto. It may not be inappropriate to describe these provisions as forming an exhaustive code, as they deal with life and personal liberty. The intention was to make Art. 22 self-contained in respect of laws on the subject of preventive detention. If the intention of the Constitution was that a law made on the subject of preventive detention had to be tested on the touchstone of reasonableness, then it would not have troubled itself by expressly making provision in Art. 22 about the precise scope of the limitation subject to which such a law could be made.Arts. 21 and 22 are linked up together; while Art. 21 enables the State to deprive a person of his life or personal liberty according to the procedure established by law, Art. 22 prescribes certain procedure in respect of both punitive and preventive detention. They constitute an integrated code in the matter of personal liberty.[1]
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[1] "Kavalappara Kottarathil Kochuni v. State of Madras",AIR 1960 SC 1080.
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Person whose control is taken over by law, whether by an officer with coercive power or on voluntary surrender before Court , is amounts to in custody , as regards to criminal proceedings, for the purpose S.46 and S.439,of Criminal P.C. (2 of 1974).[1] Article 22(1) enjoins that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. They are also meant to effectuate the commandment of Article 20(3) that no person accused of any offence shall be compelled to be a witness against himself. [2]
The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. Respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers. "Rudul Sah case was followed in Bhim Singh [3] and Peoples' Union for Democratic Rights.[4] The increasing powers of the police and the absence of systems of accountability necessitate constant monitoring of torture, executions, disappearances, and indiscriminate firing and mass arrests as means of intimidating non-violent movements. ------------------------------------------------------------------------------------------------
[1] "State of Haryana v. Dinesh Kumar", AIR 2008 S C 1083.
[2] "Mohd. Afzal,v. State (N. C. T. of Delhi), AIR 2005 S C 3820.
[3] Bhim Singh v. State of J and K [1985] (4) SCC 677.
[4] P.U.D.R. v. Police Commissioner, Delhi, [1993]2 SCC 746.
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Article 21 which is one of the luminary provisions in the Constitution of India, 1950 and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The Article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is, therefore, difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system.[1]
Human dignity is a dear value of our Constitution and international human rights instruments, not to be bartered away for the mere apprehensions entertained by jail officials. Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatment to any person whether he is a national or a foreigner.
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[1]-"Munshi Singh Gautam v. State of M. P." AIR 2005 S C 402.
In Delhi, total number of persons arrested for substantive offence is 57,163, the total number of persons arrested under preventive provisions is 39,824. 50% of the persons arrested were arrested for bailable offences. If we take U.P., the number of arrests under the preventive provisions is far above the total number of arrests for substantive offences. While preventive arrests are 4,79,404, the number of arrests for substantive offences are1,73,634. The percentage of persons arrested in bailable offences is 45.13. In Haryana, the % of arrests under bailable provisions is 94%, in Kerala it is 71%, in Assam it is 90%, in Karnataka it is 84.8%, in M.P. it is 89%, in A. P. it is 36.59%.[2]
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[1]Niranjan Singh vs. Prabhakar (AIR 1980 SC 785).
[2] The Law Commission of India, 177th report on “Arrest”.
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Large number of arrests are being made under preventive provisions as well as for bailable offences. It is difficult to believe that in all these arrests for bailable offences, warrants were issued by the magistrates. Indeed an overwhelming percentage of those arrests were by the Police without a warrant.
Under Article 21, no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. Clauses (1) and (2) of Art. 22 afford protection in the matter of arrest and detention in certain cases. Clauses (4), (5) and (6) thereof provide for preventive detention and constitutional safeguards relating thereto. It may not be inappropriate to describe these provisions as forming an exhaustive code, as they deal with life and personal liberty. The intention was to make Art. 22 self-contained in respect of laws on the subject of preventive detention. If the intention of the Constitution was that a law made on the subject of preventive detention had to be tested on the touchstone of reasonableness, then it would not have troubled itself by expressly making provision in Art. 22 about the precise scope of the limitation subject to which such a law could be made.Arts. 21 and 22 are linked up together; while Art. 21 enables the State to deprive a person of his life or personal liberty according to the procedure established by law, Art. 22 prescribes certain procedure in respect of both punitive and preventive detention. They constitute an integrated code in the matter of personal liberty.[1]
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[1] "Kavalappara Kottarathil Kochuni v. State of Madras",AIR 1960 SC 1080.
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Person whose control is taken over by law, whether by an officer with coercive power or on voluntary surrender before Court , is amounts to in custody , as regards to criminal proceedings, for the purpose S.46 and S.439,of Criminal P.C. (2 of 1974).[1] Article 22(1) enjoins that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. They are also meant to effectuate the commandment of Article 20(3) that no person accused of any offence shall be compelled to be a witness against himself. [2]
The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. Respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers. "Rudul Sah case was followed in Bhim Singh [3] and Peoples' Union for Democratic Rights.[4] The increasing powers of the police and the absence of systems of accountability necessitate constant monitoring of torture, executions, disappearances, and indiscriminate firing and mass arrests as means of intimidating non-violent movements. ------------------------------------------------------------------------------------------------
[1] "State of Haryana v. Dinesh Kumar", AIR 2008 S C 1083.
[2] "Mohd. Afzal,v. State (N. C. T. of Delhi), AIR 2005 S C 3820.
[3] Bhim Singh v. State of J and K [1985] (4) SCC 677.
[4] P.U.D.R. v. Police Commissioner, Delhi, [1993]2 SCC 746.
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Article 21 which is one of the luminary provisions in the Constitution of India, 1950 and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The Article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is, therefore, difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system.[1]
Human dignity is a dear value of our Constitution and international human rights instruments, not to be bartered away for the mere apprehensions entertained by jail officials. Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatment to any person whether he is a national or a foreigner.
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[1]-"Munshi Singh Gautam v. State of M. P." AIR 2005 S C 402.
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Posted by Raghuveer Singh Chundawat.
Very good work done sir.Regards
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