SYMBIOSIS INTERNATIONAL

(DEEMED UNIVERSITY), PUNE

"DRAFT: ARREST POLICY"

SUBMITTED BY

SIDHARTH

Division: B

PRN: 22010323081

Class: BA LLB

Symbiosis Law School, Hyderabad

In

March 2024

UNDER THE GUIDANCE OF

Mr Hifajatali Sayyed
Assistant Professor
Symbiosis Law School Hyderabad
 GOVERNMENT OF INDIA
MINISTRY OF LAW AND JUSTICE
LAW COMMISSION POLICY DRAFT
ON
NATIONAL ARREST POLICY

It is urgently necessary to make the significant changes to the criminal laws that the Law
Commission of India has suggested in its Report on Law Related to Arrest. The adjustments
must be investigated and made by the legislature. There are still several gaps in the current legal
system that require correction.

INTRODUCTION

The arrest policy essentially occupies a very central role in the legal landscape and framework,
embodying the sensitive equilibrium among law enforcements and people’s liberties. In recent
years we have witnessed an intensified scrutiny of arrest practices which is propelled via
evolving law standards, the judicial pronouncements, and even societal demands for greater
accountability and transparency in policing. And when putting the limelight on the backdrop of
those developments, it has become vital to scrutinize and potentially trying to reform the arrest
policies has grown to be more and more being called for, necessitating a comprehensive exam of
current norms and practices. Looking within legal frameworks have generally got a plethora of
provisions and landmark courtroom decisions which focuses on delineating the parameters of
arrest powers and of course, the procedures. Central to this discourse is Article 21 of the Indian
Constitution, which guarantees and ensures us the right to life and personal liberty, basically
laying down foundational principles which underpin the legality and proportionality of arrests in
a subtle way. Now adding to this constitutional safeguard are provisions within the Criminal
Procedure Code of 1973, which tend to outline the circumstances under whom arrests may
particularly be effected, basically emphasizing adherence to generally the due process and
judicial oversight.

R.R. Chari v. State of Uttar Pradesh 1 have elucidated the contours of arrest powers,
underscoring the actual imperative of judicial scrutiny and accountability in law enforcement
actions. Similarly, worldwide the much prominent human rights units, such as the Universal
Declaration of Human Rights and the International Covenant on Civil and Political Rights,
provide a regulatory steerage on arrest practices, emphasizing ideas of legality, necessity, and
proportionality, which is fairly significant. In addition to these law-related frameworks, current
judicial pronouncements have also reshaped the landscape of arrest practices, redefining the
scope and limitations of regulation enforcement authority. D.K. Basu v. State of West Bengal2,
have underscored the vital necessity of mandating the overly important stuff like procedural
safeguards such as the right to legal counsel and the requirement of a formal arrest memo. These
judicial interventions have played a pivotal position in altering law enforcement excesses and
fostering a subculture of accountability within policing agencies, which is fairly significant.
Notable provisions within the legal frameworks, including Article 20(3) of the Indian
Constitution, which safeguards towards self-incrimination, essentially underscore the importance
of protective individual rights and dignity all through arrest procedures. Furthermore, not just
limiting to this, rising challenges which include the proliferation of cybercrime, transnational
crime organisation networks, and mental health crises necessitate a recalibration of arrest
guidelines to satisfy the 20th century modern demands. Advances in technology, when focusing
on enhancing law enforcement capabilities has to additionally need to look into the increase
concerns about privacy rights, data safety of individuals, and the potential for algorithmic bias in
predictive policing models and ways. Addressing these challenges really calls for a multifaceted
technique that mixes legal reforms, technological innovations, and community-targeted policing
techniques in a big way.

1
R.R. Chari v. State of U.P., 1962 SCC OnLine SC 124
2
D.K. Basu v. State of W.B., (1997) 1 SCC 416
RIGHTS OF THE ARRESTED PERSON
1. Right to Silence: It is derived from common law concepts, and the right to silence guarantees
that an individual cannot be presumed responsible for merely refusing to reply to questions
throughout the act of interrogation. Article 20(3) of our Indian Constitution ensures safety
against self-incrimination.

2. Right to Know the Grounds of Arrest: Section 50(1) of the Criminal Procedure Code
(CrPC) mandates that all and every person who is arrested without a warrant must and need to be
immediately informed of the offence they are being arrested for, in the given scenario. In
Joginder Kumar v. State of U.P 3., the Supreme Court emphasised that an arrested individual has
a right to tell a pal, relative, or member of their family about their confinement and detainment.

3. Protection Against Wrongful Confinement: The man or woman who has been put in
custody should now not be subjected to any kind of torture, mockery, or extended detention. Any
such actions represent wrongful confinement, punishable under Section 342 of the Indian Penal
Code (IPC). In Arnesh Kumar v. State of Bihar4, the Supreme Court pressured and made it
realize the importance of adhering to law provisions to prevent the abuse of authority and power
of police officers through their arrests.

4. Right to a Fair Trial: Article 14 of the Constitution guarantees the fundamental right to
equality before the law, rendering honest and fair treatment all through trial proceedings. The
accused have the right to legal representation and an opportunity to present their case before the
court.

5. Special Protections: Certain segments of society, which basically includes males below 15
years and above 65 years, in addition to ladies, should no longer be called to the police station
for the purpose of questioning5. This provision is according to Chapter 17 of International

3
Joginder Kumar v. State of U.P., (1994) 4 SCC 260
4
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
5
The Code of Criminal Procedure, 1973, §161 (2), No. 2 of 1974, Acts of Parliament, 1949 (India).
Human Rights Standards for Law Enforcement and upholds the honour and modesty of
individuals.6

6. Right Against Self-Incrimination: Section 161(2) of the CrPC and Article 20(3) of the
Constitution restrict forcing a person to give testimony towards themselves. In Nandini Satpathy
v. P.L. Dani7, the Supreme Court held nobody can forcibly extract statements from the accused.

7. Right to Legal Representation: Article 22(1) of the Constitution guarantees the fundamental
right to seek advice from a legal practitioner of one's preference. This consists of the right to be
defended by a lawyer during arrest. In D.K. Basu v. State of W.B8., the Supreme Court
emphasized the importance of getting access to legal aid all through interrogation.

8. The Constitution's Article 39A provides that those who lack the necessary money will
receive free legal aid and services from our state. The fundamental right to legal help for those
who cannot afford it was reaffirmed by the Supreme Court in Hussainara Khatoon v. Home
Secretary, State of Bihar9, as a crucial component of Article 21.

9. Right to Speedy Trial: While now not explicitly noted within the Constitution, the proper to a
fast trial is implied within Article 21. In Hussainara Khatoon v. Home Secretary, State of
Bihar, the Supreme Court emphasised the need for expeditious justice giving and delivery to
prevent undue complications, hardships, and trauma to the accused.

10. Presumption of Innocence: Section 167 of the CrPC basically states that an accused man or
woman is presumed innocent until they are made guilty and responsible for the acts they’ve done
and have made them realize. In State of Haryana v. Dinesh Kumar10, the Supreme Court
reaffirmed this idea of the precept of the presumption of innocence.

6
International Human Rights Standard for Law Enforcement, 1996, Chapter 7,
https://www.ohchr.org/sites/default/files/Documents/Publications/training5Add1en.pdf.
7
Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424
8
D.K. Basu v. State of W.B., (1997) 1 SCC 416
9
Hussainara Khatoon (I) v. Home Secy., State of Bihar, (1980) 1 SCC 81
10
State of U.P. v. Dinesh Singh Chauhan, (2016) 9 SCC 749
11. Right to Silence: According to Suk Das vs Union Territory of Arunachal Pradesh 11, failure
to tell the accused of their right to meet an advocate and talk things out with him will vitiate the
trial.

12. Right to be Produced Before Magistrate within 24 Hours of Arrest: Sections 56 and 57
of the CrPC tell of bringing the arrested individual before a Judge within the time period of 24
hours of arrest. In Poovan vs. Sub-Inspector of Police12, according to the Court's ruling, it is
necessary to present the arrested individual who has been held guilty of an act in front of a judge
within 24 hours of their arrest.

13. Right to be Examined by Medical Practitioner: Section 54 of the CrPC mandates that an
arrested man or woman needs to be examined employing a medical officer or registered clinical
practitioner immediately, and quickly after arrest. This guarantees their physical health and well-
being and records the chance of mistreatment.

14. Right to Health and Safety: Section 55A of the CrPC imposes a duty on custodial
authorities to take reasonable care of the fitness and safety of the accused person.

PROCEDURE FOR ARREST IN INDIA

Arrest, an essential aspect of law enforcement, is ruled by using meticulous procedures as

outlined within the Code of Criminal Procedure, 1973 (CRPC) in India. These procedures
essentially encompass two ways of approach: arrest without a warrant and arrest with a warrant,
every one of them with their own personal set of situations, responsibilities, and safeguards.

Arrest Without Warrant:

Arrest without a warrant is an essential tool in law and regulation enforcement, giving the
powers to the cops and the authority to detain individuals who have been suspected of

11
A.I.R. 1986 S.C. 991
12
1993CRILJ2183
committing offences without the need for having previous judicial approval. Sections 41, 42, and
151 of the CRPC delineate the circumstances under which every such arrests are permissible.

13
Section 41(1) gives a vast framework for warrantless arrests, permitting police officers to
apprehend such individuals who've done acts that fall under cognisable offences, literally possess
stolen belongings, are proclaimed offenders, hinder regulation enforcement responsibilities and
duties, or try to keep themselves away from lawful custody. This provision empowers law
enforcement to rapidly intervene in conditions wherein public protection or the administration of
justice is at risk and hazard in a big way.

Section 42 14extends the scope of warrantless arrests to include non-cognizable offenses under
generally particular situations. If an person refuses to reveal their identification or gives false
information, a police officer can also lawfully arrest them without a warrant. This provision
safeguards against individuals who are evading accountability by concealing their identification
or supplying deceptive data.

15
Section 151 grants police officer the authority to arrest people on suspicion of committing
cognizable offences if there are reasonable grounds to consider that the for all intents and
purposes particular offence can most effectively be only dealt with if prevented by apprehending
the suspect. This provision empowers regulation enforcement to proactively actually deal with
threats to public safety before they definitely escalate.

16
Additionally, Section 43 empowers non-public, private people to make arrests under fairly
special occasions, emphasising that there, for all intents and purposes, is a collective obligation
of society to uphold the idea of the rule of law. However, such arrests should be directly
pronounced at the closest police station to ensure proper law-related processes are followed.

II. Arrest with the aid of Warrant

13
The Code of Criminal Procedure, 1973, §41 No. 2 of 1974, Acts of Parliament, 1949 (India).
14
The Code of Criminal Procedure, 1973, §42 No. 2 of 1974, Acts of Parliament, 1949 (India).
15
The Code of Criminal Procedure, 1973, §151 No. 2 of 1974, Acts of Parliament, 1949 (India).
16
The Code of Criminal Procedure, 1973, §43 No. 2 of 1974, Acts of Parliament, 1949 (India).
Arrest by means of warrant kind of is a formalised process requiring judicial authorization earlier
before an very individual can literally be detained. This method is typically is used for non-
cognizable offenses or offenses of a fairly less critical nature, in which prior judicial scrutiny is
deemed necessary. Sections 70 to 81 of the CRPC detail the procedural elements of arrest by
warrant, from issuance to execution and presentation before the courtroom. Warrants are issued
by judges or magistrates upon establishing probable cause and reasonable reasons for the arrest,
ensuring a judicial check on law enforcement movements. Warrants are reserved for offences
punishable by way of imprisonment for life, demise penalty, or imprisonment exceeding years,
reflecting the gravity of the alleged offences. By requiring judicial approval, arrest by way of
warrant moves an idea of balance between the rights of an individual and the state’s work in
keeping law and order.

III. Arrest How Made

Section 46 of the CRPC provides and enables comprehensive ways and guidelines on the way in
which arrests are supposed to be performed, and that also irrespective of whether a warrant is
concerned or involved. These pointers are designed to protect the rights and dignity of the
arrested man or woman while making very sure of the robust execution of regulation
enforcement responsibilities.

According to Section 46(117), an arrest must involve pretty physical contact or confinement of
the very body of the arrested man or woman. This provision underscores the significance of how
there is a direct engagement between law enforcement officers and the person who is being
apprehended, bringing clarity and accountability in the arrest system.

In cases concerning lady arrestees, Section 46(4) 18mandates extra precautions to be determined,
consisting of regulations on arrest at some very specific hours and the involvement of girl
officers inside the manner of arrest so that in order to recognise the unique vulnerabilities
confronted by ladies and purpose to mitigate any chances of risks or abuses.
17
The Code of Criminal Procedure, 1973, §41 No. 2 of 1974, Acts of Parliament, 1949 (India).
18
The Code of Criminal Procedure, 1973, §46 No. 2 of 1974, Acts of Parliament, 1949 (India).
Section 46(2) 19also offers the police officers the authority to use what could be thought and
considered as reasonable force to conquer resistance or the attempts of the person to run away
from arrest. However, this authority is not absolute, and is subject to restrictions as described in
Section 46(3) 20which explicitly prohibits moves and actions that might result in the death of a
person who is accused of non-capital offences.

21
Furthermore, Section 46(4) establishes safeguards for the arrest of girls, requiring
circumstances to justify the arrests outside of the of special hours and mandating earlier
permission from a Judicial Magistrate in such kinds of cases. These provisions reflect a tendency
of a nuanced method to gender-sensitive policing which definitely reflects the importance of
respecting the rights and dignity of all people, irrespective of gender.

IV. Duties of the Police Officer While Making an Arrest

In addition to delineating the procedural aspects of arrest, the CRPC also imposes specific
obligations on police officers to ensure arrests' lawful and ethical behaviour in a subtle way.
Section 41(A) has the capacity to direct the officers to provide notices directing people to appear
before them or at certain locations if arrests aren't made under Section 41(1).

This provision potentially acts as a safeguard against arbitrary detention, making sure that people
have the knowledge and essentially know the reasons behind their arrest and literally get an
opportunity to definitely present their case. Section 41(B) outlines the obligations of police
officers in the course of arrests, consisting of the requirement to undergo clear identity match-up,
prepare a memorandum of arrest attested through and via mostly help of a witness, and inform
the arrested man or woman of the rights and to inform circle of their socials, such as relatives or
friends about their arrest. These provisions are designed to promote transparency and duty and
recognise the rights of the arrested person throughout the arrest procedure.

19
The Code of Criminal Procedure, 1973, §46 No. 2 of 1974, Acts of Parliament, 1949 (India).
20
The Code of Criminal Procedure, 1973, §46 No. 2 of 1974, Acts of Parliament, 1949 (India).
21
The Code of Criminal Procedure, 1973, §46 No. 2 of 1974, Acts of Parliament, 1949 (India
Lacunae & Analysis

The procedure for arrest in India actually is filled with challenges, including the extreme abuse
of powers by law enforcement agencies and what we can witness is the significant gaps in
accountability mechanisms. Despite legal safeguards and guidelines, which we think are in place,
individuals'' rights are frequently violated, essentially eroding public trust in the working of the
justice system. One of the major concerns surrounding the arrest procedure is, well, of course,
the arbitrary exercise of power by police officers. Not all, but a good number of them resort to
unjustified arrests, targeting, most of the time, marginalised and economically much weaker
members of society. Such arrests, made without sufficient evidence or legal justification, mostly
22
infringe upon individuals' rights and undermine the rule of law. Article 21 of the Indian
Constitution guarantees us the right to life and personal liberty, and any act that essentially
contravenes this right must be through due process of law. However, when mostly put under
investigation, we can observe that numerous guidelines provided by the judiciary and
recommendations from bodies like the Law Commission exist in what we can say, a lack of
accountability within the police force. The "blue code of silence" among police officers further
exacerbates this issue, as officers tend to protect each other from facing repercussions for
misconduct, which is quite significant. The Supreme Court has also emphasised the importance
of accountability in cases, in one such case such as Prakash Singh v. Union of India23; it laid
down guidelines for police reforms, including the establishment of police complaints authorities.

Judicial interventions, while which could be generally said commendable, have not always
translated in a literal sense into meaningful change, contrary to popular belief. For example,
court directives, particularly such as those in D.K Basu v. State of West Bengal24, which aimed
at safeguarding individuals’ rights during arrests and detention, although highly praised, yet have
not been consistently implemented in a way that was expected. Despite these interventions,
arbitrary arrests for the most part continue to occur, highlighting the very need for definitely
more robust accountability mechanisms. When we generally compare our police system with
kind of other countries, such as Japan, the UK, and Italy, further we get to witness and

22
INDIA CONST. art. 21
23
Prakash Singh v. Union of India, (2019) 4 SCC 6
24
D.K. Basu v. State of W.B., (1997) 1 SCC 416
underscore the shortcomings of India's law enforcement apparatus. While these countries have
well-trained police forces, and also an effective accountability mechanism, India essentially lags
seriously behind in ensuring proper training and oversight of its officers. Adopting almost the
best practices from these countries could particularly provide valuable insights into addressing
systemic issues which mostly lies within India's police force in a subtle way. Proposed reforms
offer really potential solutions to the challenges facing the arrest procedure in India. Community
policing initiatives can also aim to build trust between law enforcement agencies and the
communities they serve, potentially reducing instances of abuse of power. Restructuring police
training programs to focus on human rights and accountability for all intents and purposes could
also help instil a culture of respect for individuals' rights within the force. Additionally,
separating investigative agencies from, law and order police and establishing very kind of
independent oversight bodies to investigate complaints against police misconduct are among the
recommendations put forward to enhance accountability within the police force, which is quite
significant. These measures aim to address the root causes of abuse of power and ensure that law
enforcement agencies are held accountable for their actions. Legal and judicial responses
basically have literally played a crucial role in addressing issues surrounding the arrest
procedure. In addition to D.K Basu case, there have been several other landmark cases which
have shaped the discourse on police accountability in a kind of significant way. In Joginder
Kumar v. State of Uttar Pradesh25, the Supreme Court laid down guidelines regarding the
procedure for arrest, emphasising the importance of respecting individuals' rights. Similarly, in
Lalita Kumari v. Government of Uttar Pradesh 26, the Court held that registration of FIR is
mandatory in cognisable offenses, barring exceptional circumstances.

In conclusion, the reality of the arrest procedure in India generally is marred by the abuse of
power and systemic shortcomings in accountability mechanisms. Despite efforts to address these
issues through legal and judicial interventions, challenges generally persist in ensuring the
protection of individuals' rights and holding law enforcement agencies accountable for their
actions. Moving forward, comprehensive reforms prioritising accountability, transparency, and
respect for human rights are pretty essential to address the underlying challenges facing India's
police force and upholding the rule of law.
25
Joginder Kumar v. State of U.P., (1994) 4 SCC 260
26
Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1
SUGGESTIONS
 If an arrest is illegal, it is a tort of wrongful imprisonment, and the detained person has
the right to sue the person who conducted the arrest for damages. The person who was
wrongfully detained should have the right to compensation. The court in the case of
Nilabati Behera Alias Lalit ... vs State Of Orissa And Ors27.
This same thing was held in the case of Rudal shah v. state of Bihar28, Sebastian M.
Hongary v. Union of India,29 Maharastra v Ravikant S. Pati30where monetary relief was
granted by the court in case of illegal arrest.
 When the accused must be taken into custody in order to keep him under control and give
terrorised victims confidence, or when the accused is likely to run and avoid the legal
system. This was also said in a report which was published by U.S. Department of Justice
in 2006.
 Many time people who are wrongfully detained becomes victims of mental illness, stress
and etc. So, after acquittal these people should be given medical counselling.
 Representatives of registered NGOs to be entitled to visit police station. Many time
people are held in illegal detention for a period of days and are frequently exposed to ill-
treatment and third-degree tactics. In order to stop this unlawful practise, the CrPC
should contain a specific clause requiring the officer in charge of the police station to
permit representatives of registered non-governmental organisations to visit the station at
any time to check and make sure that no one is being detained there without a record of
the arrest being kept.
 It is crucial to specify that no one may be detained or arrested by the police just for
questioning. Such arrest or detention, it goes without saying, is an unnecessary and
unconstitutional intrusion into the personal liberty granted by Article 21 of the
Constitution.

27
Nilabati Behera Alias Lalit ... vs State Of Orissa And Ors, (1993) 2 SCC 746.
28
Rudul Shah v. State of Bihar, AIR 1983 SC 1086.
29
Sebastian M. Hongary v. Union of India, AIR 1984 SC 1026.
30
Maharastra v Ravikant S. Pati, (1991)2 SCC 373.