Jurisprudential Understanding of Arrest and Detention Ananya Chandra Criminal Law Wed, Mar 29, 2023, at ,11:46 PM INTRODUCTIONHobbes calls a man selfish who can go to any extent for pleasure. Bentham motivate the assumption that human nature seeks pleasure and avoid pain. In order to avoid conflict of his interest in the society with the others and to regulate the conduct of a person, a criminal justice system has been developed.Before the advent of Criminal justice system, the society was regulated by the monarchs and aristocrats to control the actions of an individual. The Indian criminal justice system works on the maxim “it is better hundred guilty persons should escape than one innocent person be convicted”. Police, prison, prosecution and courts are the four pillars of the criminal justice system and amongst the four, police system is responsible for ensuring safety of the citizens and maintaining law and order in the society. Law and order can only be maintained by preventing wrong and creating fear among the individuals. Arrest and detention is among one of the legal ways to create fear among the individuals so that they may not indulge themselves in any illegal activities.WHAT IS AN ARREST?Arrest is derived from the French word “ Arrester” means “to stop or stay”. It simply means restraining the movement or activity of a person who is accused of an offence or is apprehended to do an offence. Arrest involves seizure or touching of a person’s body with an intention to restrain him.WHEN A PERSON CAN BE ARRESTED ?The Code of Criminal Procedure authorizes the police to arrest a person without warrant in cognizable cases and requires a written warrant from a Magistrate in non cognizable cases. Section 41 of Crpc provides for circumstances under which a person can be arrested without warrant such as commission of an cognizable offence, house breaking, declared proclaimed offender, having possession of stolen property, obstructing police officer while executing his duty, escaped or attempts to escape from custody, suspected deserter from Union Armed Forces, concerned to extradition, commits breach of rule after being released convict and request of arrest made by any other police officer.HOW ARREST IS MADE ?The Code of Criminal Procedure lays down modus operandi for the police to bring off an arrest under Sec 46(1) which states that a person who makes an arrest must touch or confined the body of the person to be arrested mere oral declaration will not amount to arrest. Under Sec 46(2) police can use necessary force against a person trying to resist or evade an arrest and shall not cause his death unless he is not accused of an offence punishable with death or imprisonment for life. The arrested person should not be handcuffed by the police unless prior permitted by the Magistrate. The police must obtain special orders for handcuffing along with the warrant of arrest from the Magistrate.Search of any place can be conducted by police or any person acting under a warrant of arrest under Sec 47 and a necessary force can be used against any person denying or obstructing such search. The police may conduct the search either by calling out the pardanashin lady who being the occupier of the house or any place or may continue in the presence of a woman or a woman police.Sec 48 and Sec 77 of Crpc states that police arresting any person without warrant may pursue him into any place in India and warrant of arrest can be executed at any place in India. Special procedure prescribed under Sec 78-81 of Crpc will be followed for executing warrant of arrest outside the local jurisdiction of the court issuing it.The person having an obligation to assist the police officer for preventing the escape of any other person to be arrested under Sec 37 of Crpc, intentionally failing to do so shall be punished under Sec 187 of IPC.The arrested person should be informed by the subordinate officer being authorized by any other police officer, about the written order containing his arrest without warrant, offence he has committed and other grounds of arrest. The arrested person on escaping from the lawful custody, can be rearrested by the person not being a police officer and not acting under a warrant.PROCEDURE FOLLOWING AN ARRESTThe articles on the body except necessary wearing apparels can be searched by the police officer or a private person and the receipt of articles will be given to the arrested person. Decency has to be maintained while conducting a search of a women by any other women under Sec 51 of Crpc. Police officer or any other person making an arrest under Sec 52 of Crpc shall seize the offensive weapons and present them before Court or officer before which the arrested person will be produced.The examination of an arrested person by a Registered Medical Practitioner at the request of the police officer not below the rank of Sub-inspector or any person acting bonafide, where exists a reasonable ground that an examination would adduce evidence revealing the commission of an offence. The Code of Criminal Procedure (Amendment) Act, 2005 inserted Sec 53A and Sec 54(2) which laid down the procedure for Medical Examination in Rape cases and thus a copy of the report prepared shall be sent to the police officer, Magistrate and the accused.In all cases of arrest without warrant, a report should be given to the District Magistrate by the police officer and by furnishing securities or on bail or by special order of a Magistrate, the accused person can be discharged under Sec 59 of Crpc.RIGHTS OF AN ARRESTED PERSONThe Indian Criminal System safeguards the rights of prosecution as well as the accused. Thus, the burden of proof to prove an allegation lies upon the prosecution and the accused will be considered innocent until prevent guilty.Art 22(2) of Indian Constitution and Sec 55 of Crpc states that police officer after arresting a person under a warrant of arrest shall produce him before the magistrate without unnecessary delete within 24 hours of an arrest and strict action should be taken against the police officer failing to comply this provision resulting in the illegal detention of the arrested person. Illegal detention is against the law, thus it provides a right to the arrested person to file a writ a Writ of Habeas Corpus against such detention.It is the duty of the police officer or any person acting on his behalf to inform the grounds of arrest or the offences that has been alleged against the arrested person and a procedure has been prescribed for issuing of a warrant to conduct a search at a person’s residence but shall not be deprived of his personal life and Liberty before or after the arrest.Every accused has been given a right against self incrimination by not answering the questions that can go against him under Sec 161(2) of Crpc and Art 20(3) of the Indian Constitution. A right of double jeopardy has been provided to every person so that he may not get convicted for the same offence more than one. The accused person has a right to keep silence and cannot be compelled to make statements or confessions before any court but can only be made voluntarily.Sec 50(2) of Crpc gives every arrested person a right to be released on bail by submitting the sureties to the police officer making an arrest without warrant in cases of non bailable offence. Art 22(1) of Indian Constitution and Sec 303 of Crpc recognizes the right of an arrested person to consult a legal practitioner of his choice and an arrested indigent person should be informed and given the service of Free Legal Aid.Under Sec 54 of Crpc, the Magistrate on request made by the accused can direct the Registered Medical Practitioner to examine his body which would lead to the production of an evidence disapproving the commission of any offence by him or any other person has committed an offence his against his body but no direction can be given by the magistrate on discovering that the request made by the arrested person was only for delaying or defeating the ends of justice.DETENTION OF ACCUSED UNDER SEC 57 AND 167 OF CRPCThe arrested person is required to be produced before a competent magistrate within 24 hours of his arrest excluding the time necessary for travelling from the place of arrest to the Magistrate court. The magistrate may either release him on bail or to remand him till the trial is over. The police officer may get punished by such Magistrate for disobeying the procedure established by law and keeping the person in an illegal detention. Where the police fails to complete the investigation within 24 hours the accused must be sent to the nearest magistrate who extended his detention not exceeding 15 days or may release him on bail or may take him to judicial custody. The police must abstain from using any kind of force whether physical or psychological that may cause injury or death to the arrested person under police custody for extracting information.LANDMARK JUDICIAL PRECEDENTS In Prakash Singh & others v. Union of India and others, 2006 (8) SCC 1, the court observed that “The quality of criminal justice system in a country, to a large extent depends upon the working of police force”. In Joginder Kumar v. State of U.P., AIR 1994 SC 1349, the court stated that a person should not be arrested merely on the grounds of suspicion and must be avoided unless there is a commission of a heinous crime. His close friend, relative or other person must be told about his arrest and place of detention. In D.K. Basu v. State of West Bengal, AIR 1997 SC 610, the court laid down the following instructions for the Police that: The details and name tags of the police personnel must be clear and accurate along with their particulars to be recorded in a register.Police officer making an arrest must prepare a memo at the time of making an arrest, signed by one witness either by family member of an accused or any respected person of the locality of the arrested person. The memo will contain the date, time and signature of the arrested person.The arrested person has a right to inform his family members, friends or anyone about his arrest and place of detention and this right must be available to him as soon as he gets arrested and if any of his friends, family members or any other person resides outside the district or town then they must be informed through Legal Aid Organisation of that District.The details of the arrest, arrested person and the police officer who made an arrest must be maintained in a diary.Inspection Memo on the request of the arrested person will be maintained and signed by him and the police officer for the examination his body and must record the particulars and handover one copy to the arrested person.The copy of the documents shall be forwarded to the competent Magistrate and the accused shall be allowed to meet his Lawyer during interrogation not throughout the interrogation. In Lalita Kumari v. State of U.P. & Others, (2014) 2 SCC 1, the court opined that it is mandatory to register an FIR if the information discloses the commission of a cognizable offence and no requirement for preliminary inquiry and an investigation is required if the information doesn’t discloses the commission of a cognizable offence. If the investigation reveals a cognizable offence then FIR must be reported and a copy of the entry of the closure must be sent immediately to the first informant. • In Smt. Nilabati Behera v. State Of Orissa And Ors on 24 March, 1993, the court stated that any form of torture or cruel, inhuman or degrading treatments is against the rights enshrined under Article 21, occuring during investigation, interrogation or otherwise.CONCLUSIONThus, from the above article it is concluded that while exercising the procedures of the criminal law for ensuring fair trial and delivering speedy justice, the rights of an individual bestowed by the Constitution must not be compromised. Law always acted as a watchdog for the Liberty of an individual as a consequence several rights have been imparted to the arrested persons to ensure that they are not subjected to any exploitation and harrassment by the authorities responsible for arrest and detention.REFERENCES Constitution Of India, 1950 Code of Criminal Procedure, 1973 Criminal Procedure by R.V. Kelkar’s Indian Kanoon Live Law Legal Service India https://www.legalserviceindia.com/legal/article-8100-all-about-the-procedure- ofarrestunder-crpc.html https://www.livelaw.in/top-stories/detention-under-s167-2-crpc-scope- legalityarrestremand-judicial-custody-police-183462