CRIMINAL PROCEDURE LAW PROJECT- V SEMESTER

Project Title- “Arrest and Rights of Arrested Person in India"

Submitted By: - Nehal Singh Submitted to – DR. Prem Kumar Gupta

Enrolment ID: - 200101093 RMLNLU, Lucknow
BA.LLB 3rd Year (5th Semester)
Section: - B
 ACKNOWLEDGEMENT

I have taken a lot of effort into this project. However, this would have not been possible
without the kind support and help of many individuals. I would like to express my sincere
thanks to all of them.
I express my deep gratitude to my teacher DR. Pankaj Kumar Gupta for the subject for giving
me her exemplary guidance, monitoring, and constant encouragement throughout the project.
I would like to express my gratitude towards my parents and members of RMLNLU for their
kind support and encouragement which helped me in the completion of this project.
My thanks and appreciation also go to my fellow batchmates in developing the project and
people who willingly helped me out with their abilities.

-NEHAL SINGH
 DECLARATION

I hereby declare that this project “Arrest and Rights of Arrested Person in India”
submitted by Me to DR. Ram Manohar Lohia National Law University, Lucknow, Uttar
Pradesh in partial fulfilment of the award of the degree of BA.LLB(Hons.) is a record of
Bonafede project work carried out by me under the guidance of DR.Pankaj Kumar Gupta
I further declare that this work reported in this project has not been submitted and will not be
submitted either in part or in full, for the award of any other degree or diploma in this
institute or any other university.

Nehal Singh
Enrolment No.- 200101093
BA.LLB(Hons.) 5th Semester
 INTRODUCTION

We are all born with several rights, such as the freedom to speak, the right to religion, and so
on. Human rights are enshrined in India's Constitution and the Universal Declaration of
Human Rights. A person's rights cannot be denied just because they have been detained. The
different rights of a detained or arrested individual may be deduced from the CoCP, the
Indian constitution, and other historic judgements.

Every person, regardless of whether or not they are a criminal, must be regarded as a human
being first. Nonetheless, the accused is presumed innocent unless proven guilty in a court of
law. Even if the accused is charged with an offence, it is a feature of our democratic society
that his rights are considered sacred. Our legislation is very concerned with anyone's
"personal liberty," and hence does not enable the detention of anyone without adequate legal
authorization. Article 21 of our constitution states that no one shall be deprived of his life or
personal liberty unless in accordance with process. The possibility of corruption and related
malpractices develops at various points during the day-to-day operations of the Police. It can
begin with the filing of a case, taking a decision to arrest or not arrest, extortion, or collecting
'hafta' for intervening in civil disputes, manufacturing false evidence, and so on.

WHAT IS ARREST?
In general sense, A person who breaks the law is said to be arrested. In layman sense, arrest
means when a person is taken into custody or is detained by a police officer for a suspected
charge against that person. Once the arrest is complete, the suspect is no longer free to walk
away from the arresting police officer, this often comes before the suspect arrives at jail.
They are put under restraint.

The CrPC of 1973 deals with the aspects of arrests but has not defined 'Arrest'. When a
person is detained or arrested, then the arrested person is taken into custody by an authority
authorized by the law to detain the person. The person is then questioned to answer the
charges against them, and they are confined so that no further crime is committed.
As per Legal Dictionary by Farlex, Arrest means a seizure or forcible restraint; an exercise
of the power to deprive a person of his or her liberty; the taking or keeping of a person in
custody by legal authority, especially, in response to a criminal charge

State of Haryana v Dinesh Kumar (2008) 3 SCC 222

In the following case the Apex court observed that the expression arrest has neither been
defined in the CrPC nor the IPC or any other enactment dealing with criminal offences. The
only indication as to what arrest may perhaps be found in section 46 of the CrPC which
describes the mode of in which the arrest is to be made.

The court cited the meaning of arrest given in the Halsbury’s Laws of England, the word
arrest when used in its ordinary sense means the apprehension or restraint or depravation of
one’s personal liberty.

THERE ARE TWO TYPES OF ARREST

1. Arrest made in pursuance of a warrant issued by a magistrate

There is only one provision in the Code of Criminal Procedure, 1973 under which a
Magistrate himself can arrest an accused. That provision is contained in Section 44 of
the Code of Criminal Procedure, 1973.

Any Magistrate, whether Judicial or Executive, may arrest or order the arrest of an
offender who has committed an offence in his or her presence within his or her local
authority. He may even issue an arrest warrant for the criminal. A Magistrate is not a
"Court" if he or she arrests someone under Section 44 (1) of the Code of Criminal
Procedure, 1973. As a result, detaining the detained individual for more than 24 hours
is illegal unless a remand order to custody is obtained under Section 167 (1) of the
Code of Criminal Procedure, 1973 by presenting him before another Magistrate.
Magistrate Under Section 44 of the Code of Criminal Procedure, 1973 a Judicial /
Executive Magistrate either himself arrest or ask any other person to arrest anyone
committing any offence in his presence.

Under Section 44 (2) of the Code of Criminal Procedure, 1973 also he can arrest a
person for whose arrest he is competent to issue a warrant.
 Arrest by Magistrate:
When a crime is committed in the presence of a Magistrate, whether Executive or
Judicial, within his local authority, he may arrest or order any person to arrest the
offender, and may then commit the criminal to jail, subject to the rules hereof
regarding bail.
Any Magistrate, whether Executive or Judicial, may arrest or direct the arrest of any
person in his presence, within his local authority, for whom he is qualified to issue a
warrant at the moment and under the circumstances.

Scope and Ambit

Section 44 of the Code of Criminal Procedure, 1973 is the sole section that allows a
Magistrate to arrest someone. This section is divided into two subsections.
 A Magistrate may arrest a person if an offence is committed in his presence,
according to sub-section (1).
 Subsection (2) allows him to arrest someone for whom he has the authority to
issue a warrant.
Apart from the Police, the Magistrate has the authority to arrest a person under
Section 44 Cr. P. C. When an accused comes before the Magistrate or surrenders
willingly, the Magistrate has the authority to take that accused into custody.

In arresting a person under Section 44 a Magistrate does not take cognizance of the
case. The provision neither deals with taking of cognizance nor with conducting of
inquiry or trial after taking of cognizance. Directorate of Enforcement Vs Deepak
Mahajan, AIR 1994 SC 1775.

 In sub-section (1) of Section 44 Cr. P. C, the offence for which the arrest is to be
made, must have been committed in presence of the Magistrate, who intends to arrest
such person,
 however, under sub-section (2), the Magistrate is empowered to arrest or to direct,
arrest any person at any time, present at the time of such arrest or direction to arrest.
In other words, for applicability of sub-section (2) of Section 44 Cr. P. C the person to
be arrested should be physically present before the Magistrate and such Magistrate
must be competent at the time and in the circumstances to issue warrant of arrest.
Allahabad High Court in Ram Chandra Vs State of Uttar Pradesh, 1977 Cri. L. J 1783
while giving reasons as to why Under Section 44 (1) the Magistrate has been given power to
commit the offender to custody, and not Under Section 44 (2), is not far to seek, held as
under:

 The reason why Under Section 44(1) the Magistrate has been given power to commit
the offender to custody, and not Under Section 44 (2), is not far to seek. Under
Section 44 (1) the offence is committed before the magistrate himself. He is sure
about the guilt of the person committing the offence and, therefore, he has been given
the power to commit him to custody.
 The case is different under Section 44 (2); the offence was not committed in his
presence, and he is unsure whether the person brought before him under arrest
committed the offence or not. It is apparent that he has not been granted the authority
to send the criminal to detention for this reason. He can simply arrest him or have him
arrested, and he may even search his person to determine whether he is in possession
of any incriminating items. He is not allowed to do anything further beyond this.

2. An arrest made without such a warrant but in accordance with some legal provision
permitting such an arrest

There are situations and circumstances in when to restrain and refrain a person from doing
any illegal act by arresting him, immediate approval of magistrate and warrant is neither
desirable nor feasible

In Section – 41 of C.r.P.c, nine situations are enumerated in which a person could be arrested
by a police officer without a warrant, and they are –

i. Any Person actually concerned or is reasonably suspected to be concerned in a

cognizable offence.

ii. Any person found without any lawful excuse in possession of any implement of the
house- breaking.

iii. A person who is proclaimed offender.

 iv. Any person who is in the possession of property reasonably suspected to be stolen and
who may be reasonably suspected to have committed the offence with reference to
such property.

v. Any person obstruction police officer in the discharge of his official duty or who has
escaped from lawful custody.

vi. A person who is a deserter from any of the armed forces of the union.

vii. Any person who is concerned or who is reasonably suspected to be concerned with
any act committed outside of India, if it would have been committed in India, would
be punishable as an offence and would have been liable to be apprehended or detained
in custody of India.

viii. Any person who is released is convicted of committing a breach of any rule made
under sec – 356(5) of C.r.P.c.

ix. Any person for whose arrest requisition has been received from another police officer,
is authorized to arrest him without a warrant.

Apart from 9 grounds as mentioned in Section – 41 of C.r.P.c, there are various provisions in
C.r.P.c itself, under which arrest can be made without a warrant, as Section – 51 of Code of
Criminal Procedure, in which Executive Magistrate may order to make arrest without warrant
in order to maintain peace and upkeep tranquillity in society.

 From the words of Section – 41, police office “may arrest” it reflects the discretionary
power of police officer, but this power is not to be exercised arbitrarily, as in Binoy
Jacob v. CBI, 1993 CriLJ 1293, the High Court of Delhi pinioned that, country
governed by Rule of Law the discretion of authority does not mean, whim, fancy or
wholly arbitrary exercise of discretion.  

In Bhawoo Jivaji vs Mulji Dayal on 22 March, 1888 “Bhawoo Jivaji vs Mulji Dayal”
explains that what comes under the ambit of “wrongful restraint and confinement” and why a
public servant who is on duty cannot be held liable for it.

Section 79 of Indian Penal Code, 1860 says that “Nothing is an offence which is done by any
person who is justified by law, or who by reason of a mistake of fact and not by reason of a
mistake of law in good faith, believes himself to be justified by law, in doing it”. Section 99
of Indian Penal Code clearly states that “there is no right of private defence against an act
which does not cause reasonable apprehension of death or grievous hurt, if done or attempted
to be done on the direction of a public servant acting under good faith under the colour of his
office”.
ISSUES AND FACTS OF LAW:
The complainant filed the case of wrongful restraint and confinement and claimed that he was
simply going on his way but the constable stopped him wrongfully and was suspecting him as
a thief while he was not caring any stolen property with him. After denying the constable
took him into him custody, arrested him and took him to the police station.

The constable argued that when he suspected some stolen property with the complainant, he
told him to show his property for which he denied and assaulted him (constable). That is why
he arrested the complainant. But for this the complainant said that he assaulted the constable
in private defence.
Now the court had to see that whether it was wrongful restraint and confinement or not and
whether the constable is liable for the said offences or not.

JUDGMENT:
The court said that even though the acts of the accused (constable) cannot be said “strictly
justified by law” but still the complainant had no right of private defence in this case because
the accused was an on duty public servant and his acts were not grievous at all which can
cause any apprehension of death or grievous hurt.

The court also held that when the constable was asking the questions to clear his doubts and
situations, it was a good faith and the constable will be protected under section 79 of Indian
penal code, 1860.

 In case of Pawan Kumar v. Delhi Administration, 1989 Cr. L.J. 127, it was

opinioned by the court that arrest and seizure would lose its authenticity if no effort is
made by the police to join an independent witness among several persons present.

Constitutionality of Section 107 and 151 of CrPC

A police officer may follow such a suspect into any area in India for the purpose of detaining
without a warrant, as mentioned in Section 48. According to Section 49 of the Code, the
detained person should not be subjected to any unwarranted constraint or bodily hardship
unless essential to prevent his escape.

Section 151 empowers police officers to arrest a person without a warrant if they suspect him
of committing a cognizable offence. However, certain requirements apply: the expected
offence must be cognizable, and the officer must believe that arresting the suspect is the only
way to avoid the offence. The magistrate has equivalent authority under Section 107.
Numerous petitions have been filed, however, disputing the constitutional legitimacy of these
parts, as they allow for the abuse of authorities under these articles.
 RIGHTS OF AN ARRESTED PERSON

The accused in India are afforded certain rights, the most basic of which are found in the
Indian Constitution. Article 21 of Indian Constitution provides few rays of hope to the lives
of arrested, under trials and convicts. The treatment of such people has to be humane and, in
the manner, prescribed by law. Hence, the accused has been provided with certain rights
under the law.

The rights are as follows and have been discussed in the chapters that follow, of this project
in detail.

Right To Know The Ground Of Arrest

Every accused person has a right to know the ground for which he has been arrested.

Section-50, of CrPc  specifies that the individual detained should be notified of the reason
for their arrest as well as their right to bail When a person is arrested without a warrant, he
shall be immediately notified of the particulars of the type of offence that he has committed
as specified in the code, as well as whether the offence that he has done is a Bailable offence
or a non-Bailable offence.

If the offence is bailable, the accused has the right to be freed on bail. It is the police officer's
responsibility to tell him, and he cannot refuse to do so.
Making known to the arrest grounds to the accused is a constitutional requirement and failure
to comply with the requirement leads to arrest illegal.

Section-50A, OF CrPc obligates a person making arrest to inform of the arrest to any of the
friends or relatives or any other person of his interest. Also, the police officer should inform
the arrested person that he can inform to any of his friends or relatives about his arrest, police
officer has to perform his duty he can't deny or refuse it.

Section-55 OF CrPc states that when the police officer authorised his subordinate to arrest
the accused without a warrant, the subordinate needs to notify the accused for what reason he
has been arrested which is written in that order specifying the offence what he has committed
and other grounds of arrest.
Section-75 OF CrPc states that if the arrest of accused is under a warrant then the police
officer or other person who is executing the warrant shall notify the substance of the written
order given by the senior officer in written stating the offence for which the accused has been
arrest and if so required, shall show him the warrant.
If the police officer executing the warrant of arrest does not notify the substance to the
arrested person in accordance with this Section, he will be acting in the violation of law.

As per Article 20(1) of the Indian Constitution no police officer should arrest without
informing the ground for the arrest.

Right To Be Taken Before Magistrate Without Delay:

The accused person has a right to appear before the magistrate within 24 hours from the time
of the arrest. Despite the fact that the arrest is with warrant or without warrant accused has to
be taken to the nearest Magistrate within the period of 24 hours of such arrest and have to
keep the accused in police station and nowhere else.

Article 22(2) of The Indian Constitution states that every person who is arrested or detained
in custody produced before the nearest Magistrate within the period of 24 hours of such arrest
excluding the time take place necessary from the place of arrest to the nearest Magistrate.

Section-57 of CrPc states that the person who is arrested without warrant not to be detained
in the custody of the police for more than 24 hours. The accused have to present before the
magistrate within that period. The period of arrest does not include the journey from the place
of arrest to the nearest magistrate. Magistrate can order his detention for a term not exceeding
fifteen days on the whole.

Section-76 of CrPc states that the person who is arrested with warrant shall without necessary
delay bring the person arrested before the court where he is required to be present.
Right To Be Released On Bail:

The accused person has the right to be released on the bail if the offence is a Bailable offence
after paying the surety amount he can be entitled for the bail and if the offence is Non-
Bailable then it's upon the discretion of the court whether to grant bail or not also it is the
right of the right of the accused to know the grounds of his arrest.

As per Section-50 of CrPc, where the accused is arrested without warrant, he should be

immediately informed of the particulars of the offence and grounds of his arrest and whether
the offence is Bailable or not, if yes then he has right to be released on Bail.

Right To Fair Trial:

The accused has a right to have a fair trial while taking the principle of equity, justice and
good conscience into consideration. No provision relating to the fair trial has been mentioned
under the code of criminal procedure but the interest of the accused to have fair trial has been
mentioned under the Supreme law of land under ARTICLE 14, "which says that all persons
are equal in the eyes of law", this statement itself says that every person should be given
equal opportunity and the accused has a right that during his trial the principle of Natural
Justice should be followed. Also, the accused has a right to have free and speedy trial;
principle of Natural Justice should be followed in both the aspects.

In Huissainara Khatoon V. Home Secretary, State Of Bihar, it was held that the trail is to
be disposed of as speedily as possible.

Right To Consult A Legal Practitioner:

The accused has a right to address himself before the magistrate through his legal advisor.
Right to address before the magistrate by legal practitioner is fundamental right which has
been mentioned under Article-22(1), which states as soon the person is in the custody of the
police he has the right to have legal practitioner to guide him regarding the gravity of the
offence which he has committed and the grounds and the remedy which he can provide the
accused. If the offence is Bailable, then the legal practitioner can help him to release on Bail
by giving the surety amount.

Also, under Section-303 of CrPc states that is the person is accused of an offence before

criminal court, or against whom proceedings are instituted may of right to be defended by a
pleader of his choice.

Right To Free Legal Aid:

The accused has a right to have the legal aid service which has been provided by the legal
service authority if his income is less than Rs. 1, 50,000/- he has to prove that by the way of
the income affidavit and thus he is entitled to have free legal aid service and can have a legal
practitioner for himself on his behalf to address the court proceedings.

Section-304 of CrPc states that wherein between the trial proceedings if the accused is not
presented by a pleader, and where the court believes that he is not having enough means to
appoint a pleader then his defence would be at the expense of the state and he can be entitled
to have free legal aid service and thus a legal practitioner to appear on the behalf of the
accused.

Article-39(A) has been inserted by the 42nd Amendment which ensures in that it is the duty
of the state to provide legal aid services to the accused in order to ensure equal opportunity in
securing justice and shall not be denied to any citizen by reasons of economic and other
disabilities. According to article 21 of the Indian Constitution.

In the case of Khatri v/s State Of Bihar, it was stated that if the accused person is declared
indigent then the state has to provide free legal aid services to him.
Right To Be Silent:

The accused has a right to remain silent because the magistrate has to know the gravity of the
confession or statement which has been made by the accused is made by him voluntarily or
not and this right has not been mentioned in any code.

This is the right which has been given to the accused from the common law principles. This
right leads to the provision which has been mentioned under Article-20(3) of The Indian
Constitution, which says that no person accused for any offence shall he compelled to be a
witness against himself i.e. the principle of Self-Incrimination.

In The Case Of Nandini Sathpathy V. P.L.Dani 1978 AIR 1025, 1978 SCR (3) 608
,, it was stated that no one can force any accused to answer any question or give statement
and the accused has the right to remain silent during the process of interrogation.

In Nandini Satpathy vs. Dani (P.L.) And Anr, the Supreme Court of India interpreted the
right of an accused person to remain silent during police questioning in reference to Article
20(3) of the Indian Constitution and Section 161(1) of the CrPC. Article 20 of the Indian
Constitution guarantees its citizens fundamental rights to be protected against any criminal
offences that may be brought against them. Article 20(1) of the Constitution is also known as
Ex Post-facto, which means that a person who is charged for an offence cannot be charged
for any other act that is not in violation of any existent act, and it also states that a person will
only be charged for the penalty that is imposed at the time of the offence took place.

In the Nandini Satpathy vs. P.L.Dani case, the appellant was Nandini Satpathy and the
respondent was P.L.Dani. The judgment was given by a 3-bench judge that includes Justice
JS, Justice V.D.Tulzapurkar, and Justice V.R. Krishna Iyer. 

FACTS OF THE CASE

The former Chief Minister of Orissa was arrested and charged under Section 5(2) of the
Prevention of Corruption Act, 1988, as well as Sections 161, 165, 120B, and 109 of the
Indian Penal Code by the Deputy Superintendent of Police, Vigilance, Cuttack. The
appellant, along with other individuals engaged in the disproportionate asset case, were
questioned using a written sequence of questions. When a person holds assets that surpass
their entire lawful yearly income, this is referred to as a disproportionate asset. The claims
include that she abused her political office and obtained illicit gratification, which enhanced
her income during her stint as Chief Minister.

However, because her interrogation was on the process, she used her fundamental right under
Article 20(3), which is the right against self-incrimination, often known as the right to be
silent, for which she was charged. Again, she was charged before the Sub-Divisional Judicial
Magistrate, Sadar, Cuttack under Section 179 of the IPC on the complaint of the DSP,
Vigilance, Cuttack, and a summons was issued against her.

On this, the accused challenged the rationality of the power of the judicial magistrate by
moving to the High Court under Article 226 of the Indian Constitution and Section 141 of the
CrPC. But the High Court failed to answer the limit of section 161(2) of CrPC when an
accused imposes Article 20(3) during police interrogation because of which the plea of the
appellant was rejected. And on receiving a certificate she appealed under Article 132(1) in
the Supreme Court.

ISSUES

The following are the issues that arose from this case:

1. Does a suspected accused have a right to sanction their right to be silent who has
committed a criminal offence? 

2. What are the probable criteria for an accused to impose Article 20(3) while the
investigation of the police is in the process? Can the accuse also has an option to
ignore questions which can expose his act?

3. When does the shield of remaining silence come into action? Is it only available to an
accused in the court or does it protect them from incriminating themself from the
investigation of the police?

JUDGEMENT

The court held that for invoking Article 20(3) the party pleading must be accused of an
offence, and that he/she was subjected to a compulsion to answer the incriminating questions
asked from them, and that calling a woman as a witness in the police station violates section
160(1) and influences her testimony and that section 161(2) and Article 20(3) immune the
witness from being forces to answer incriminatory questions at the investigation stage.

Right To Be Examined By The Medical Practitioner:

The accused has a right to be examined by the medical specialist. According to Section-54
Of CrPc, which says that examination of the arrested person by the medical practitioner on
the request of the accused if he alleges that at the time when he was produced before the
magistrate or during the time of his detention contains proof which will disprove that the
offence has been committed by him and will suspects other person who has actually
committed the offence then the magistrate after agreeing to his statement can assign a
medical practitioner to collect the evidence for reaching the ends of justice.

In the case of Joginder Singh @ Yoginder Singh vs State Of Punjab & Ors on 28 April,
2015 , it was stated that constitutional provisions i.e. Article 21  and 22(1) are necessary
because:

 The accused has the right to inform his friends, relatives or any other person who is in
relation to whom or whom the information should reach so if the offence is Bailable
offence he could bring the surety amount and he can be released on Bail.

 The police officer are under the obligation directed by the state to inform about the
grounds and regarding the offence the accused has been arrested.

 The entry should be made in a diary to which the information of arrest has been made
by the accused.

In The Case Of D.K Basu V. State Of West Bengal And Ors,, this case was the landmark
judgement which talks about the rights of the arrested person and also obligates the police
officer to do certain activities which has been imposed on him. Also it has been stated that it
is the duty of the police officer to inform the accused about the grounds and offence which he
has committed and if the police officer fails in performing his duty he will be punished for
the violation of law.
 CONCLUSION
The 1973 Code of Criminal Procedure offers important protections, yet the police's arrest
power is still being abused. It is still thought that the police exploit their position to intimidate
and extort money from persons who have been detained. According to reports, the police
neglect to educate arrested persons about the charges against them and do not give them with
the proper representation. Thus, it is critical to make adjustments in Criminal Justice
Administration so that the State understands that its primary job is to apprehend and reform
the criminal rather than simply punish him.

All procedures are conducted in accordance with the Rule of Law, which governs the
functioning of all organs of the State's Machinery. It also covers individuals and
organisations involved in the prosecution and investigation of cases.

It is the police's first and greatest responsibility to defend all persons and their rights in
society, even those who have been detained. As a result, it is the police's responsibility to
defend the rights of the accused and ensure that they are handled fairly according to the legal
procedures and are not harassed unduly. The police should ensure that the person detained is
notified of his rights, such as the reason for his arrest, whether he or she is eligible for
release, and that he or she is brought before a magistrate within twenty-four hours 

BIBLIOGRAPHY
Nandini Sathpathy V. P.L.Dani 1978 AIR 1025, 1978 SCR (3) 608)
Case Of D.K Basu V. State Of West Bengal And Ors
(Joginder Singh @ Yoginder Singh vs State Of Punjab & Ors 2007 (4) RCR 262
Bhawoo Jivaji vs Mulji Dayal on 22 March, 1888 ILR 12 Bom 377
R. V. Kelkar & Chandrasekharan Pillai K N., PRE-TRIAL PROCEDURE: ARREST, AND THE RIGHTS OF
ARRESTED PERSON , inR.V. KELKAR'S CRIMINAL PROCEDURE(2004).
ARREST AND THE RIGHTS OF THE ARRESTED IN INDIA SEPTEMBER 10, 201921305 1,
https://blog.ipleaders.in/rights-person-arrest-india/.
https://www.helplinelaw.com/employment-criminal-and-labour/RAPI/rights-of-an-
arrested-person-in-india.html