arrest proceedures and rights

8/10/2019 Arrest Proceedures and Rights

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Arrest Proceedures and Rights

CHAPTER-1INTRODUCTIONArrest in criminal jurisprudence signifes the detention o a person

under the authority olaw in connection with an alleged or epected !iolation o the law"Police o#cers area entrustedwith wide powers o arrest under di$erent circumstances% so arese!eral other classes o o#cerswho are entrusted with the enorcement o penal enactments"&agistrates ha!e powers o arrestin certain circumstances and e!en pri!ate persons ha!e the power toarrest in etraordinarycircumstances" 'ut the power to arrest has to (e eercised with

intelligent discretion and caution"&ore o!er% arrest is undou(tedly a serious intererence withundamental right o thepersonal li(erty o the citi)en% which includes an arrestee or anaccused% guaranteed underArticles *1 and ** o the Constitution o +ndia and it has to (e strictly inaccordance with thelaw% so as to (e escaped the arresting authority rom the punishment"(A)MEANING OF ARREST:-The term arrest is not defned in any ,tatute" Howe!er% the ictionary

o .aw o .eiconhas gi!en a meaning o the term arrest as /an apprehension o aperson (y legal authorityresulting in depre!iation o his li(erty0" +n English law% arrest consists othe actual sei)ure ortouching o a person0s (ody with a !iew to his detention" urther% in,tate o Punja( 2s Ajai(,ingh% A+R 1345 ,C 16% the ,upreme Court has defned the term arrestoccurring in Article **o the Constitution o +ndia as /indicating physical restraint o a person

under the authority othe law in respect o an alleged accusation or deault or !iolation o thelaw"0+n ordinary parlance the terms arrest and custody are using assynonyms" 'ut literallythey suggest a di$erent meaning" Arrest means restraint o li(erty othe person" +t is a mode ota7ing a person into custody" Custody means immediate charge andcontrol eercised (y personunder authority o law" Ta7ing a person into custody is ollowed ater

arrest o the concernedperson" +n% irectorate o Enorcement 2s eepa7 &ahajan A+R 1338,C 1994% the ,upremeCourt laid down that ta7ing o a person into judicial custody is ollowedater the arrest o theperson (y the &agistrate on appearance or surrender" +n e!ery arrestthere is custody (ut not!ice-!ersa and custody and arrest are not synonymous terms":B) PURPOSE OF ARREST:-The purposes o arrest are twoold; the frst land main purpose is to

ensure the presence1


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o the accused at trial< the second is to pre!ent him rom committing aserious crime :cogni)a(leo$ence="Arrest o the o$ender especially o the dangerous and !iolent typedoes ha!e a highly

(enefcial e$ect on the morale o the society" Timely arrest o theaccused persons in seriouscases is essential step in in!estigation< ailure in this regardconsidera(ly wea7ens the position othe prosecution":C) HUMAN RIGHTS VIS--VIS INDIAN CONSTITUTION ONARREST(i) CONCEPT AND PHILOSPHY OF HUMAN RIGHTS:->ni!ersal eclaration o Human Rights (y the >"?" on 16thecem(er%138@ attach

importance to the protection o lie and li(erty o the indi!idual and putemphasis on respect orhuman dignity" +t is now an +nternational .aw and Constitutionalpro!ision o protecting ci!il%political% social and cultural rights o the indi!idual and communitywithout discrimination orace% colour% religion and caste under the um(rella o the >"?" and the+ndian constitution"As per the pro!isions o human rights% lie and dignity o the indi!idualcan not (e

encroached to ta7en away (y the o!ernment or (y its machineries or(y any dominant groupecepting (y the due procedure esta(lished (y law" All are eBual (eorelaw" ?o one will (esu(jected to ar(itrary arrest or detention" ?o accused or person should(e su(jected to inhumanand cruel treatment in the hands o police% &agistrate and ailadministration" Thus% pro!isionso human rights are concerned with the rightul attitudes in theadministration o criminal justice

as well as humanitarian approach in the administration o the Criminallaw"There are as many as 56 articles in the >ni!ersal eclaration o HumanRights (y the>"?" Articles 5-*1 deal with the ci!il and political rights o theindi!idual% Articles **-*9 dealwith economic% social and cultural rights o the indi!idual and groups othe indi!iduals"(ii) INDIAN CONSTITUTION AND HUMAN RIGHTS ON ARREST:Dur Constitution ma7ers through part 111 and 12 o the

Constitution ga!e epressionto the concept o human rights (y pro!iding undamental rights to theciti)en and e!en to theaccused in certain cases Fe"g"< Article *6 :5=G" As a matter o act% outo 56 articles o the>ni!ersal eclaration o Human Rights% 138@% at least *5 Articles ha!e(een co!ered andincorporated in the Constitution o +ndia"(iii) PROTECTIONS OF AN ARRESTEE UNDER THE INDIANCONSTITUTION AS

WELL AS UNDER THE UNIVERSAL DECLARATION OF HUMAN*


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RIGHTS(194),aeguards and protections o an arrested person ha!e (eenincorporated in the +ndianconstitution under Articles *1 and ** as well as in the >ni!ersal

eclaration o Human Rights:138@= under Articles 5% 4 3":!) PROTECTION OF AN ARRESTEE UNDER THE INDIANCONSTITUTIONArticles *1 and ** o the constitution o +ndia are the essence o theundamental rightswith respect o the personal li(erty o a citi)en which includes anarrestee or an accused" Thesetwo articles are discussed as ollows;-As per article *1% protection o lie and personal li(erty has (een

granted to e!ery onewithout any discrimination on ground o caste% race% religion% languageand se" Accordingly% noone shall e depri!ed o his lie or personal li(erty ecept (y adoptingdue procedure esta(lished(uy law" ?o one will (e compelled to li!e a su(human condition" E!eryone has right to li!e ashuman (eing% necessary or his physical and human eistence"Article ** pro!ides saeguards and protects indi!idual rom ar(itraryarrest and detention"

+t0s !arious clauses declare clearing that-1= ?o person who is arrested shall (e detained in custody without(eing inormed the groundso such arrest nor shall he (e detained the right to consult% and to (edeended (y a legalpractitioner o his choice"*= E!ery person who is arrested and detained in custody shall (eproduced (eore the nearestcourt o &agistrate within *8 hours ecluding the journey time and nosuch person shall (e

detained in custody (eyond the said period without the authority o a&agistrate"+n% ,tate o &aharastra 2s" ,ho(a Ram% Air 13II ,C 1316% the ,upremeCourt heldthat as soon as an arrest is made in respect o citi)en% operation oArticle ** o the Constitutiono +ndia starts operation and he may ta7e immediate step to regain hisreedom":") PROTECTION OF AN ARRESTEE UNDER THE UNIVERSALDECLARATION OF HUMAN RIGHTS (194)

Article 5 says /e!eryone has the right to lie% li(erty and security operson0"Article 4 says /no one shall (e su(jected to torture or to a cruel inhuman or degradingtreatment or punishment0"Article 3 lays down% that /no one shall (e su(jected to ar(itrary arrest%detention oreile0"CHAPTER- IIPROCEDURE FOR EFFECTING ARREST

,ection 8I% Cr"P"C" lays down the procedure or e$ecting o an arrest"5


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According tosection 8I% whether the arrest to (e made is with a warrant or withouta warrant% it is necessarythat in &a7ing such an arrest the police o#cer or another personma7ing the same actually

touches or confnes the (ody o the person to (e arrested unless there(e a su(mission to thecustody (y word o arrest is not an arrest% unless the person sought to(e arrested su(mits to theprocess and goes with the arresting o#cer" Any attempt (y it selpunisha(le under section **5+"P"C"The importance o the precise arrest procedure (ecomes o(!iouswhile determining theBuestion as to whether at a particular time a person was under arrest

or not">nder section 8I :*=% the police o#cer or any other person arrestingmay use all meansnecessary to e$ect arrest i the person to (e arrested e!ades ororci(ly resists the arrest" Juse allmeansK is a !ery wide term and recognising this aspect section 8IF5G%sets the limit at this% i"e"the arresting authority will not ha!e the right to cause the death o theperson to (e arrestedunless the latter is acused o an o$ence punisha(le with death or

imprisonment or lie"The words Jmay use all meansK appearing in section 8I :*=% are to (eread with section83% which say that an arrested person shall not (e su(jected to morerestraint than is necessary topre!ent his escape"As mentioning the words Jmay use all meansK in section 8I:*= theescorting police partyis caused some times or use o hand cu#ng% particularly% when theparty is (rining the under

trail prisoners rom jail to the court and !ice-!ersa" +n this contet% theescorting police partyshall (e 7now the guidelines o the ,upreme Court on use o handcu#ngs"(A)GUIDELINES OF THE SUPREME COURT ON HAND CUFFINGS:The Hon0(le ,upreme Court has gi!en its udgments in the ollowingcases on the su(jecto hand cu#ngs as to when they are to (e used and not (e used"(i) WHEN TO USE THE HAND CUFFINGSI#Prem ,han7ar ,hu7la 2s elhi Administration% A+R 13@6 ,C"1454% the

,upremeCourt held that the handcu$s can (e used (y the escorting police partyi the prisoner isdangerous and desperate% or i the prisoner is li7ely to (rea7 out ocustody or play the !anishingtric7s" The escorting party must rom the opinion on the (asis oantecedents o the prisoner"urther% in ,unil upta 2s ,tate o &"P" 1336 ,CC :Cr"= 886% the,upreme Court heldthat the escorting authority should record contemporaneously the

reasons or hand cu#ng under8


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trial prisoner e!en in etreme cases and intimate the court% so that thecourt may consider thecircumstances and issue necessary direction to the escort party"(ii) NO HAND CUFF IN GENERAL $+n ,unil 'atra 2s elhi Administration% A+R 139@ ,C 1I94% the ,upreme

Courtmaintained that the hand cu$s should not (e used in routine manner"The minimum reedom omo!ement which e!en on under trail prisoner is entitled to underArticle 13 o the constitution%can not (e cut down cruelly (y application o handcu$ or other hoops"urther% in Prem ,han7ar ,hu7la 2s elhi Administration% A+R 13@6 ,C1454%,upreme Court held that the person can not (e handcu$ed only(ecause he is charged with gra!e

o$ence not only or the con!enience o the escort party" The rules%regulation and manuals o!arious statutes authori)ing the Police to use handcu$ ha!e (eenstruc7 down as !iolati!e oArticle 18 o the +ndian Constitution"+n the same a(o!e mentioned case :Prem ,han7er ,hu7la= the,upreme Court has laiddown certain alternati!es o handcu$s so as to a(olish the practice ouse o handcu$s; Thealternati!es arender ,ection 88 any Eecuti!e &agistrate or udicial&agistratecan arrest or cause to (e arrested a person without warrant onulfllment o the ollowingconditions:1= D$ence :any= must (e committed in his presenceRA. ,AE>AR, D A E&A.E ACC>,E D?ARRE,T A? ,EARCH"The Criminal Procedure Code% 1395 has pro!ided certain saeguardsunder the ollowingcircumstance to protect the honour o the emale accused in respect o

arrest and search"1= + ingress to the place :search o place entered (y person sought to(e arrested= cannot (e o(tained under su( section :1= and such place is an apartmentin the actualoccupancy o a emale :not (eing the person to (e arrested= the Policeo#cer (eoresearch o that place shall gi!e a notice to the said emale to withdrawF,ec"89 :*=G"*= The search :personal= o a emale shall (e made (y a emale with

strict regard todecency F,ec"41 :*= 166:5=G"5= A emale accused shall (e eamined only under the super!ision o aemale registeredmedical practitioner F,ec"45 :*=G"8= A istrict &agistrate% ,u(-i!isional &agistrate or &agistrate o theirst Class maygi!e immediate relie o restoration to a emale% a(o!e or (elow1@years% who is inun-lawul detention or unlawul purpose :,ec"3@="

+n% Christian Community welare council o +ndia !s" o!t" o9


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&aharastra% 1334 Cr".""8**5 :'om"=% The 'om(ay High Court has directed to the ,tateo!t" to constitute acommittee to see that emales (e not arrested without presence a ladyConsta(le and no emale

(e arrested ater sun-set and urther separate loc7 ups (e pro!ided orthemCHAPTER-IVPROCEDURE AFTER ARRESTThe procedure to (e ollowed ater arrest is laid down in di$erentcircumstances (ydi$erent sections o the Cr"P"C" The procedure is as ollows;-1= The Police o#cer ma7ing arrest has to inorm the arrested person othe grounds o arrest:Art" ** o the constitution ,ec" 46 o the Cr"P"C" =

*= He has to inorm the arrested person o his right to (e reali)ed on(ail i the o$ence is a(aila(le one :,ec"46="5= The Police o#cer ma7ing arrest% i no (ail is gi!en% shall conduct apersonal search onarrestee and prepare a memo a(out it" He shall ta7e all articles otherthen necessary wearingapparel into possession" A receipt showing the articles so sei)ed shall(e gi!en to such anarrestee" Mhere an arrestee is a woman the search shall (e made (y

an other woman withstrict regard to decency :,ec"41=" + the articles so sei)ed are o$ensi!eweapons% he has tosend them to the court (eore which an arrestee is to (e produced:,ec"4*="8= He can get an arrestee medically eamined to a$ord e!idence ocommission o o$ence andcan use necessary orce or such eamination :,ec"45="4= He has to produce the arrested person (eore a &agistrate withoutunnecessary delay and not

to detain an arrestee (eyond *8 hours :ecluding journey time= withouto(taining order o the&agistrate :,ecs" 4I49="I= An arrestee shall not (e su(jected to more restraint than isnecessary to pre!ent his escape:e"g" handcu$s is one method o restraint=-:,ec"83="9= D#cersincharge o Police ,tation shall report to the istrict&agistrate or ,u(- i!isional&agistrate o all arrests made without warrant:,ec" 4@="@= The person arrested (y Police shall not (e discharge ecept on his

own (ond or on (ail orunder the orders o a &agistrate :,ec"43="The Police o#cer ma7ing arrest has an o(ligation to adopt the a(o!ementionedprocedure ater arrestCHAPTER-VRIGHTS OF ARRESTED PERSONThe ollowing are the rights o an arrested person guaranteed underthe +ndianConstitution as well as under the Criminal Procedure Code% 1395%

:1) RIGHT TO BE INFORMED OF THE GROUNDS FOR ARREST:-@


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+n e!ery case o arrest with or without a warrant the person arrestingshall communicateto the arrested person% without delay% the grounds or his arrest :Art%** :1= o the Constitution o+ndia% ,ecs" 46 :1=% 44% 94 o Cr"P"C"="

(%) RIGHT TO BE INFORMED OF RIGHT TO BAIL:-The arrested person must (e inormed o his right to (e released on(ail when he isarrested without warrant in a (aila(le o$ence :,ec" 46 :*= :85I==":&) RIGHT OF NOT BEING DETAINED FOR MORE THEN %4 HOURSWITHOUT 'UDICIAL SCRUTINY:-+n case o e!ery arrest the person ma7ing the arrest is reBuired toproduce the arrestedperson (eore the &agistrate within *8 hours rom the time o arrest"The time reBuired or

journey rom the place o arrest to the court o magistrate will (eecluded in computation o theduration o *8 hours :Art" ** :*= o the Constitution and section 49=%(4) RIGHT TO CONSULT A LEGAL PRACTITIONER:-'oth the Constitution and the pro!isions o Cr"P"C" recogni)e the righto e!ery arrestedperson to consult a legal practitioner o his choice :Art" ** :1= and ,ec"565=() RIGHT OF AN ARRESTED INDIGENT PERSON TO FREE LEGALAID AND TO BE INFORMED ABOUT ITI#

Nhatri :++= 2s% ,tate o 'ihar% :13@1= + ,"C"C" I*9% the ,upreme Courthas heldthat the ,tate is under a constitutional mandate :implicit in Art%*1= topro!ide ee legal aid to anindigent accused person% and that this constitutional o(ligation topro!ide legal aid does not ariseonly when the trial commences (ut also when the accused is or thefrst time produced (eorethe &agistrate as also when he is remanded rom time to time"The ,upreme Court has gone a step urther in% ,u7 as 2, >nion

Territory oArunchal Pradesh% :13@I=* ,"C"C 861% where in it has (eencategorically laid down that unlessreused% ailure to pro!ide ree legal aid to an indigent accused would!itiate the trial% entailingsetting aside o the con!iction and sentence" The accused shall (eassigned a pleader or hisdeence% (y the court% at the epense o the state when he has notsu#cient means to engage apleader :,ec" 568="

(*) RIGHT TO BE E+AMINED BY A MEDICAL PRACTIONERT,&agistrate can direct or medical eamination o the arrested personon ulfllmento the ollowing conditions< :a= the medical eamination will dispro!ethe commission o anyo$ence (y him or :(= esta(lish the commission o any other o$enceagainst his (ody :,ec" 48=CHAPTER-VICONSE.UENCES OF ILLEGAL ARREST AND USE OF THIRDDEGREE METHOD BY THE POLICE

(A) CONSE.UENCES OF ILLEGAL ARREST:-An arrest which is not3


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authori)ed (y the .aw is an illegal arrest " The ollowing are theconseBuences o illegal arrest"1= + the arrest is illegal% the person who is (eing so arrested caneercise the right o pri!atedeence in accordance with % and su(ject to% the pro!isions contained

in sections 3I to16I o the +"P"C"*= + the pu(lic ser!ant ha!ing authority to ma7e arrests% 7nowinglyeercises that authoritythe contra!ention o .aw and e$ect and section **6 o +PC" Apart romthis specialpro!ision % any person who illegally arrests another is punisha(le undersection 58* othe +"P"C" or wrongul confnement"5= A ci!il suit or damages may (e instituted against the arresting

o#cer or illegal arrest%alse imprisonment% illegal confnement etc" ater gi!ing notice to theo!ernment andthe concerned o#cer under section @6 o the Code o Ci!il Procedure"8= A trial will not (e !oid simply (ecause the pro!ision relating to arrestha!e not (een ullycomplied with"4= A writ o Ha(eas Corpus can (e fled either in the ,upreme Courtunder Article 5* or inthe High Court under Article **I o the +ndian Constitution or release

o the personillegally arrested or detained in custody (y any authority ":B) USE OF THIRD DEGREE METHOD BY THE POLICE AND ITSEFFECTS:>se o third degree method in course o interrogation and in!estigationmeans /o(tainingconession rom the accused under coercion and physical torture0"Police is no dou(t% under alegal duty and has legitimate right to arrest a criminal and tointerrogate him during the

in!estigation o an o$ence (ut law does not permit use o third degreemethod or torture oaccused in custody during in!estigation and in!estigation with a !iewto sol!e the crime"reBuent threats and insistence on answering is a orm o pressure%especially in the atmosphereo police station :under physical torture= is an eample o third degreemethod"EFFECTS:1= As per sections 556 and 551 o +PC Physical torture o an accused

during interrogation isan o$ence and hence punisha(le rom 9 to 16 years imprisonment"*= Article 4 o the >ni!ersal eclaration o Human Rights and Article*6:5= o the +ndianConstitution% ,ection *3 o the Police Act% 1@I1 and Rule 5 o the Policecode o Conductor(id such physical torture on the accused"CHAPTER: VIIOBSERVANCE OF D/0 AND DONT 0 BY THE POLICEOFFICER REGARDING ARREST

:A) D/0:16


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The police o#cer who ma7es an arrest has an o(ligation and a duty too(ser!e theollowing mandatory pro!isions% soon ater arrest is made% under theCriminal Procedure Code%1395;-

1= The Police D#cer ma7ing arrest< shall conduct a personal search onarrestee and shallta7e all articles other than necessary wearing apparel and place themin sae custody" ThePolice D#cer should prepare a receipt showing the articles so sei)edand a copy o thesame shall (e gi!en to an arrestee" Mhere an arrestee is a woman thesearch shall (e made(y another woman with strict regard to decency :,ec"41="*= Mhen the articles sei)ed% uLs 41% are o$ensi!e weapons the

arresting o#cer has to sendthem to the Court (eore which an arrestee is to (e produced :,ec"4*="5= Arrest should (e entered in an arrest card (y the person who madethe arrest" +t shouldalso (e noted in the general diary with all particulars" Time o arrestshould (eparticularly noted" Any articles ound on the person also should (eentered"8= The Police D#cer ma7ing arrest has to inorm an arrestee o thegrounds o arrest and o

his right to (e released on (ail i the o$ence is a (aila(le one :,ec"46="4= Arrestee should (e produced (eore the magistrate within *8 hoursrom the time o arrest:,ec"49="I= The Police o#cer ma7ing arrest has a reason to (elie!e that oneamination o anarrested person (ody% (y the registered &edical Practioner% which willa$ord e!idence asto the commission o an o$ence he should send the arrested person tomedical

practitioner or eamination :,ec"45="9= The person arrested (y police shall not (e discharged ecept on hisown (ond or on (ailor under the orders o a &agistrate :,ec"43="@= +n% oginder Numar 2s" ,tate o >" P"-A+R 1338 ,C" 1583 the ,upremeCourt issuedthe ollowing guidelines or the police o#cers to o(ser!e or e$ecti!eenorcement o theundamental rights guaranteed under Articles *1 and ** :1= o the+ndian Constitution"

i= The Police D#cer shall inorm the arrested person when he is incustody that isentitled i he desires to ha!e one riend< relati!e or other person% whois 7nown tohim or li7ely to ta7e an interest in his welare< told as ar as practica(lethat he has(een arrested and where he is (eing detained"ii= The entry shall (e reBuired to (e made in the general diary o Police,tation as towho inormed o the arrest"

(B) DONT S:-11


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A sur!ey conducted (y the police commission and research studiesre!eal that the policein!aria(ly employ methods :which should not (e in practice=% such as-1= Employ unair methods to elicit conessionsse third degree methods in police loc7-upsnion Terrority o Arunachal Pardesh :13@I= * ,CC861":11= oginder Numar 2s" ,tate o >"P"% A+R% 1338 ,C 1583":1*= ,heela 'arse 2s" ,tate o &aharastra% :13@5= ,CC 3I":15= Ar!ind ,ingh 'agga 2s" ,tate o >"P" and others 1334 :1= ,C 195":18= Anup ,ingh 2s" ,tate o Himachal Pradesh% A+R 1334 ,C 1381"

:14= "N" 'asu 2s" ,tate o Mest 'engal% 1339 :1= "T" :,C= 1"Q>E,T+D?,1" Mhat is meant (y arrest and custody +s arrest di$erent romCustody*" Mhat are the saeguards o on arrestee under the +ndian Constitutionas well as under theuni!ersal declaration o human rights :138@=5" Mrite a critical note on /hand cu#ngs0"8" Mho are empowered to arrest a person without warrant under theCr"P"C" 1395

4" Mhat are the procedural saeguards o a emale accused on arrest14


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and searchI" Can An &"P" or &"."A" (e arrested + so% state procedure o it9" Eplain the rights o an arrestee@" Mhat are the conseBuences o illegal arrest and use o third degreemethod (y the Police

3" Eplain the procedure ater arrest16" Mhat are the o0s and ont0s on the part o police o#cer% too(ser!e% regarding arrest11" Mhat are the guidelines or the police o#cers regarding arrest%which are enumerated (ythe ,upreme Court in "N" 'asu 2s ,tate o Mest 'engal

Anneure 1

12 FORM OF ARREST WARRANT:,ee ,ection 96 Cr" P" C"=To :name designation o the person or persons who is or are toeecute thewarrant="Mhereas :name o accused= o :address= stands charged with theo$ence o:state the o$ence=% you are here (e directed the said SSSSSS andto produce

him (eore me" Herein ail not"ated% this SSSSSSSS day SSSSSSSSSS" 13SSS":,eal o the court= :,ignature=Anneure 11E?DR,E&E?T D ARRE,T MARRA?T: ,ee ,ection 91 =This warrant may (e endorsed as ollows ;-+ the said shall gi!e (ail himsel in the sum orupees with one surety in the sum orupees

:or two sureties each in the sum orupees= to attend (eore me on theay o and to continue so to attend until otherwisedirected(y me% he may (e released"

ated this day o 13"

:,eal o the Court=:,ignature=------------------------------------------------------------------------------------------------------------

THE SUPREME COURT OF INDIA

'OGINDER 3UMAR V02

STATE OF U2P21I


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DATE OF 'UDGMENT: %541994 BENCH: VEN3ATACHALLIAH M2N2(C') MOHAN S2 (') ANAND A2S2 (')

CITATION: 1994 AIR 1&49 1994 SCC (4) %*5 'T 1994 (&) 4%& 1994 SCALE (%) **%'678#DRER1" This is a petition under Article 5* o the Constitution o +ndia" Thepetitioner is a young man o *@ years o age who has completed his.."'" and has enrolled himsel as an ad!ocate" The ,enior,uperintendent o Police% ha)ia(ad% Respondent 8 called thepetitioner in his o#ce or ma7ing enBuiries in some case" The

petitioner on 9-1-1338 at a(out 16 oUcloc7 appeared personally alongwith his (rothers ,hri &angeram Choudhary% ?ahar ,ingh ada!%Harinder ,ingh Tewatia% Amar ,ingh and others (eore Respondent 8"Respondent 8 7ept the petitioner in his custody" Mhen the (rother othe petitioner made enBuiries a(out the petitioner% lie was told that thepetitioner will (e set ree in the e!ening ater ma7ing some enBuiries inconnection with a case"*" Dn 9-1-1338 at a(out 1*"44 p"m"% the (rother o the petitioner (eingapprehensi!e o the intentions o Respondent 8% sent a telegram to theChie &inister o >"P" apprehending his (rotherUs implication in some

criminal case and also urther apprehending the petitioner (eing shotdead in a7e encounter"5" +n spite o the reBuent enBuiries% the wherea(outs o the petitionercould not (e located" Dn the e!ening o 9-1-1338% it came to (e 7nownthat petitioner is detained in illegal custody o 4th respondent% ,HD%P"," &ussoorie"8" Dn @-1-1338% it was inormed that the 4th respondent was 7eepingthe petitioner in detention to ma7e urther enBuiries in some case" ,oar the petitioner has not (een produced (eore the &agistrateconcerned" +nstead the 4th respondent directed the relati!es o the

petitioner to approach the 8th respondent ,,P% ha)ia(ad% or releaseo the petitioner"4" Dn 3-1-1338% in the e!ening when the (rother o petitioner alongwith relati!es went to P"," &ussoorie to enBuire a(out the well (eing ohis (rother% it was ound that the petitioner had (een ta7en to someundisclosed destination" >nder these circumstances% the presentpetition has (een preerred or the release o oginder Numar% thepetitioner herein"I" This Court on 11-1-1338 ordered notice to ,tate o >"P" as well as,,P% ha)ia(ad"

9" The said ,enior ,uperintendent o Police along with petitionerappeared (eore this Court on 18-1-1338" According to him% thepetitioner has (een released" To Buestion as to why the petitioner wasdetained or a period o f!e days% he would su(mit that the petitionerwas not in detention at all" His help was ta7en or detecting somecases relating to a(duction and the petitioner was helpul incooperating with the police" Thereore% there is no Buestion odetaining him" Though% as on today the relie in ha(eas corpus petitioncannot (e granted yet this Court cannot put an end to the writ petitionon this score" Mhere was the need to detain the petitioner or f!e

days< i really the petitioner was not in detention% why was not this19


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Court inormed are some Buestions which remain unanswered" + really%there was a detention or f!e days% or what reason was he detainedThese matters reBuire to (e enBuired into" Thereore% we direct thelearned istrict udge% ha)ia(ad to ma7e a detailed enBuiry andsu(mit his report within our wee7s rom the date o receipt o this

order"@" The hori)on o human rights is epanding" At the same time% thecrime rate is also increasing" D late% this Court has (een recei!ingcomplaints a(out !iolation o human rights (ecause o indiscriminatearrests" How are we to stri7e a (alance (etween the two3" A realistic approach should (e made in this direction" The law oarrest is one o (alancing indi!idual rights% li(erties and pri!ileges% onthe one hand% and indi!idual duties% o(ligations and responsi(ilities onthe other< o weighing and (alancing the rights% li(erties and pri!ilegeso the single indi!idual and those o indi!iduals collecti!ely< o simply

deciding what is wanted and where to put the weight and theemphasis< o deciding which comes frst the criminal or society% the law!iolator or the law a(ider< o meeting the challenge which &r usticeCardo)o so orthrightly met when he wrestled with a similar tas7 o(alancing indi!idual rights against societyUs rights and wisely held thatthe eclusion rule was (ad law% that society came frst% and that thecriminal should not go ree (ecause the consta(le (lundered"+n People !" eore ustice Cardo)o o(ser!ed;VThe Buestion is whether protection or the indi!idual would not (egained at a disproportionate loss o protection or society" Dn the one

side is the social need that crime shall (e repressed" Dn the other% thesocial need that law shall not (e Wouted (y the insolence o o#ce"There are dangers in any choice" The rule o the Aclams case :People !"Adams= stri7es a (alance (etween opposing interests" Me must hold itto (e the law until those organs o go!ernment (y which a change opu(lic policy is normally e$ected shall gi!e notice to the courts thatchange has come to pass"V16" To the same e$ect is the statement (y udge .earned Hand% in riedRe5;VThe protection o the indi!idual rom oppression and a(use (y the

police and other enorcing o#cers is indeed a major interest in a reesociety< (ut so is the e$ecti!e prosecution o crime% an interest whichat times seems to (e orgotten" Perection is impossi(le< li7e otherhuman institutions criminal proceedings must (e a compromise"VThe Buality o a nationUs ci!ilisation can (e largely measured (y themethods it uses in the enorcement o criminal law"11" This Court in ?andini ,atpathy !" P"." ani8 :A+R at p"165*= Buoting.ewis &ayers stated; :,CC p" 855% para 14=VThe parado has (een put sharply (y .ewis &ayers;/To stri7e the (alance (etween the needs o law enorcement on the

one hand and the protection o the citi)en rom oppression andinjustice at the hands o the law-enorcement machinery on the otheris a perennial pro(lem o statecrat" The pendulum o!er the years hasswung to the right"U VAgain :in A+R para * 1% at p" 1655= it was o(ser!ed; :,CC p" 85I% para*5=VMe ha!e earlier spo7en o the conWicting claims reBuiringreconciliation" ,pea7ing pragmatically% there eists a ri!alry (etweensocietal interest in e$ecting crime detection and constitutional rightswhich accused indi!iduals possess" Emphasis may shit% depending on

circumstances% in (alancing these interests as has (een happening in1@


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America" ,ince &iranda there has (een retreat rom stress onprotection o the accused and gra!itation towards societyUs interest incon!icting law-(rea7ers" Currently% the trend in the Americanjurisdiction according to legal journals% is that Urespect or:constitutional= principles is eroded when they leap their proper (ounds

to interere with the legitimate interests o society in enorcement o itslaws"""U" :Couch !" >nited ,tate=" Dur constitutional perspecti!e has%thereore% to (e relati!e and cannot a$ord to (e a(solutist% especiallywhen torture technology% crime escalation and other social !aria(lesa$ect the application o principles in producing humane justice"V1*" The ?ational Police Commission in its Third Report reerring to theBuality o arrests (y the police in +ndia mentioned power o arrest asone o the chie sources o corruption in the police" The reportsuggested that% (y and large% nearly I6X o the arrests were eitherunnecessary or unjustifed and that such unjustifed police action

accounted or 85"*X o the ependiture o the jails" The saidCommission in its Third Report at p" 51 o(ser!ed thus;V+t is o(!ious that a major portion o the arrests were connected with!ery minor prosecutions and cannot% thereore% (e regarded as Buitenecessary rom the point o !iew o crime pre!ention" Continueddetention in jail o the persons so arrested has also meant a!oida(leependiture on their maintenance" +n the a(o!e period it wasestimated that 85"* per cent o the ependiture in the connected jailswas o!er such prisoners only who in the ultimate analysis need notha!e (een arrested at all"V

As on today% arrest with or without warrant depending upon thecircumstances o a particular case is go!erned (y the Code o CriminalProcedure"15" Mhene!er a pu(lic ser!ant is arrested that matter should (eintimated to the superior o#cers% i possi(le% (eore the arrest and inany case% immediately ater the arrest" +n cases o mem(ers o Armedorces% Army% ?a!y or Air orce% intimation should (e sent to theD#cer commanding the unit to which the mem(er (elongs" +t should(e done immediately ater the arrest is e$ected"18" >nder Rule **3 o the Procedure and Conduct o 'usiness in .o7

,a(ha% when a mem(er is arrested on a criminal charge or is detainedunder an eecuti!e order o the &agistrate% the eecuti!e authoritymust inorm without delay such act to the ,pea7er" As soon as anyarrest% detention% con!iction or release is e$ected intimation shouldin!aria(ly (e sent to the o!ernment concerned concurrently with theintimation sent to the ,pea7erLChairman o the .egislati!eAssem(lyLCouncilL.o7 ,a(haLRajya ,a(ha" This should (e sent throughtelegrams and also (y post and the intimation should not (e on theground o holiday"14" Mith regard to the apprehension o ju!enile o$enders ,ection 4@ o

the Code o Criminal Procedure lays down as under;VD#cers in charge o police stations shall report to the istrict&agistrate% or% i he so directs% to the ,u(-i!isional &agistrate% thecases o all persons arrested without warrant% within the limits o theirrespecti!e stations% whether such persons ha!e (een admitted to (ailor otherwise"V1I" ,ection 13:a= o the Children Act ma7es the ollowing pro!ision;VThe parent or guardian o the child% i he can (e ound% o such arrestand direct him to (e present at the ChildrenUs Court (eore which thechild will appear


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ha!e (een streamlined (y the Police and Criminal E!idence Act%U 13@8(ased on the report o ,ir Cyril Philips Committee :Report o a RoyalCommission on Criminal Procedure% Command-papers @63* 13@1 1="1@" +t is worth Buoting the ollowing passage rom Police Powers andAccounta(ility (y ohn ." .am(ert% p" 35;

V&ore recently% the Royal Commission on Criminal Procedurerecogni)ed that Uthere is a critically important relationship (etween thepolice and the pu(lic in the detection and in!estigation o crimeU andsuggested that pu(lic confdence in police powers reBuired that theseconorm to three principal standards; airness% openness andwor7a(ility"V :emphasis supplied=13" The Royal Commission suggested restrictions on the power oarrest on the (asis o the Vnecessity o :sic= principleV" The two maino(jecti!es o this principle are that police can eercise powers only inthose cases in which it was genuinely necessary to ena(le them to

eecute their duty to pre!ent the commission o o$ences% toin!estigate crime" The Royal Commission was o the !iew that suchrestrictions would diminish the use o arrest and produce more uniormuse o powers" The Royal Commission Report on Criminal Procedure ,irCyril Philips at p" 84 said;V""" we recommend that detention upon arrest or an o$ence shouldcontinue only on one or more o the ollowing criteria;:a= the personUs unwillingness to identiy himsel so that a summonsmay (e ser!ed upon him"P" .egal ,er!icesAuthority :>P.,A= stated that the centre and authority are prepared toimpart training to the mediators" Me welcome this o$er and direct that

there should (e co-ordianation (etween the AH&C and >P.,A or*9


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gi!ing e$ect to this o$er" 'y and (y as the ,tate o!ernment is a(le tocreate a cadre o trainers or mediation% their ser!ices may also (eutilised or training mediators in the districts"Me thin7 training is necessary (ecause the responses to our Bueriesrom the su(ordinate district courts re!eal the poor success rate in the

cases reerred (y the High Court or where the concerned su(ordinatecourt has itsel initiated the process o mediation" 'y contrast thesuccess rate at the &ediation Centre in the Allaha(ad High Court%which has independent trained mediators :usually lawyers= is muchhigher" The frst reBuirement or successul mediation is the patienceon the part o the mediator% and his willingness to gi!e su#cient timeto the contesting parties and especially to the wie to epress her(ottled up grie!ances" Thereater% in a disinterested manner% themediator should encourage the parties to come up with solutions%gi!ing useul suggestions or (ringing a(out reconciliation% as the

mediator cannot impose his solution on the parties"The guidelines hereina(o!e ha!e (een spelt out (y the Court (ecauseo the specifc reBuest o the o#cials and lawyers present to spell outthe terms o the same% as guidance or the ,tate go!ernment :esp" thehome department=% the .egal ,er!ices Authority and the police orissuing appropriate circulars or go!ernment orders":3= ,hould o$ences under section 83@-A +PC (e made compounda(leMe ha!e recei!ed considera(le eed(ac7 rom su(ordinate judicialauthorities that unless the o$ence under section 83@-A +PC is madecompounda(le% much (eneft cannot (e deri!ed (y trying to (ring

a(out mediation (etween the parties" A dilemma then arises (eore theconcerned Court% :which cannot close the trial (ecause the spousesha!e compromised their dispute= or e!en (eore the aggrie!ed wie% ishe decides to settle her dispute with her spouse and in-laws either (yagreeing to stay with them or to part amica(ly% usually ater recei!ingsome compensation" E!en i she is no more interested in repeatedly!isiting the court or prosecuting the accused% in the a(sence opro!isions or compounding the o$ence% she has willy nilly to perjure(y ma7ing a alse statement that her initial report was untrue orlodged under inWuence o O or " + on the (asis o this statement the

trial Court acBuits the hus(and and his amily mem(ers% and theaggrie!ed wie returns to her matrimonial home% in the cases whereshe is again maltreated% i she lodges a resh report% its relia(ility will(e open to Buestion"The Ape Court in Ramgopal !" ,tate o &"P"% *616 ,CA.E 911 o(ser!edthat an o$ence under section 83@-A +PC is essentially pri!ate in nature%and it should (e made compounda(le i the parties are willing toamica(ly settle their dispute" irections were gi!en to the .awCommission o +ndia to consider the matter and to ma7e appropriaterecommendations to the o!ernment to (ring a(out suita(le

amendments in the statute"+n Rajee! 2erma !" ,tate o >"P"% *668 Cri"."" *34I% which was adecision gi!en (y a (ench in which one o us :Amar ,aran = was amem(er% a similar suggestion was made to the .aw Commission o >"P"to recommend to the ,tate go!ernment to ma7e the o$ence undersection 83@-A +PC compounda(le with the permission o the Courtunder section 5*6 Cr"P"C" The reasons or the suggestion were thatsuch +Rs are oten lodged in the heat o the moment% withoutreWection ater a sudden Buarrel% and sometimes as a result o wrongad!ice or inWuences" 'ut the complaining wie% who usually has no

source o independent li!elihood :as a 7ey pro(lem in our society is the*@


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lac7 o economic and social empowerment o women= and is una(le topro!ide or hersel in the uture% may ha!e to su$er later i therelationship with her hus(and is irre!oca(ly ruptured due to the hastyfling o the criminal case% particularly in !iew o the act that theo$ence is non-compounda(le" To meet this situation '"," oshi ! ,tate

o Haryana% A+R *665 ,C 15@I% &anoj ,harma ! ,tate% *66@ ,C:,uppl=1191% and &adan &ohan A((ot ! ,tate o Punja(% A+R *66@ ,C 13I3recommended Buashing o the complaint in proceedings under section8@* Cr"P"C or in the writ jurisdiction where the aggrie!ed wiecompounded the o$ence" +n the latter case it was o(ser!ed that wherethe dispute is purely personal in nature% :i"e" the element o the o$ence(eing a crime against society is secondary=% and the wie decides tocompound the o$ence% as there would (e little li7elihood o con!iction%Buashing o the o$ence should not (e reused on the hyper-technical!iew that the o$ence was non-compounda(le Vas 7eeping the matter

ali!e with no possi(ility o a result in a!our o the prosecution is aluury which the Courts% grossly o!er(urdened as they are% cannota$ord and that the time so sa!ed can (e utili)ed in deciding moree$ecti!e and meaningul litigationVThe ollowing passage in paragraph 1* in "2" Rao ! ."H"2" Prasad% A+R*666 ,C *898 has (een cited with appro!al in '"," oshi;VThere has (een an out(urst o matrimonial disputes in recent times"The marriage is a sacred ceremony% the main purpose o which is toena(le the young couple to settle down in lie and li!e peaceully" 'utlittle matrimonial s7irmishes suddenly erupt which oten assume

serious proportions resulting in commission o heinous crimes in whichelders o the amily are also in!ol!ed with the result that those whocould ha!e counselled and (rought a(out rapprochement are renderedhelpless on their (eing arrayed as accused in the criminal case" Thereare many other reasons which need not (e mentioned here or notencouraging matrimonial litigation so that the parties may ponder o!ertheir deaults and terminate their disputes amica(ly (y mutualagreement instead o fghting it out in a Court o law where it ta7esyears and years to conclude and in that process the parties lose theirVyoungV days in chasing their VcasesV in di$erent Courts"V

+n Rajee! 2erma howe!er relying on '"," oshi it was mentioned thatwhilst the trial could (e Buashed in an application under section 8@*Cr"P"C or under Article **I% (eing a ruitless prosecution where therewas little li7elihood o con!iction as the parties had settled theirdispute% (ut the proper orum or deciding the matter whether thecompromise application was !oluntary and (ona fde or whether it wascoerced was the lower court which could decide whether it was a ftcase or granting permission to the wie to compound the o$enceunder section 5*6:*= Cr"P"C" This was only possi(le i the o$ence unders" 83@-A +PC was made compounda(le with the permission o the

Court"A good option or pro!iding recompense to the maltreated woman isVThe Protection o Momen rom omestic 2iolence Act% *664V whichpro!ides or a gamut o ci!il rights or the aggrie!ed woman who hasentered into a domestic relationship with a man% with or withoutmarriage" ,uch ci!il rights include VProtection ordersV :section 1@=prohi(iting the respondent rom committing any act o !iolence%!isiting the place o wor7% operating the common (an7 loc7er% ma7ingtelephonic contact etc" VResidence ordersV :section 13=% which restrainthe respondent rom dispossessing a woman rom the shared

household% or rom alienating or renouncing his rights to the property*3


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or (y directing him to remo!e himsel% or (y pro!iding alternateaccommodation to the aggrie!ed woman at the eisting le!el" 'ypro!iding Vmonetary reliesV :sections *6 and **= (y paying or loss oearnings or medical epenses% or loss due to destruction o property (ydomestic !iolence% or or maintenance o the woman and her

dependent children% or (y payment o compensation or causinginjuries :including mental torture=" VCustody ordersV :section *1= orcustody o the child to the woman :including !isiting rights= or therespondent" Criminal proceedings under this Act ha!e (een allowedonly as a last resort% under section 51 when the respondent commits a(reach o a protection order% or where at the stage o raming chargesor (reach o the protection order he fnds that an o$ence undersection 83@-A +PC has also (een committed (y the respondent"The Act also pro!ides under section 18 or the &agistrate to send amatter or VcounsellingV (eore a registered Vser!ice pro!ider%V who is

Bualifed to pro!ide counselling in such matters to the contestingparties or to pro!ide shelter etc" to the aggrie!ed woman"+n the counter-a#da!it dated 1*"@"11 fled on (ehal o the Home,ecretary% >"P"% it has specifcally (een mentioned that the ,tatego!ernment has gi!en its consent to the >nion o +ndia to ma7eo$ences under section 83@-A +PC compounda(le% and the letter o theHome :Police= ,ection-3 to the >nion Home &inistry dated 8"*"16 has(een anneed" Mhereas we appreciate this positi!e attitude o the,tate go!ernment in not o(jecting to section 83@-A +PC (eing made acompounda(le o$ence" Howe!er we fnd that Andhra Pradesh% (y Act

11 o *665 :w"e" 1"@"65= has added section 83@ A :wrongly descri(edas 838 A= ater section 838 in the ta(le in section 5*6:*= Cr"P"C" andhas permitted the woman su(jected to cruelty to compound theo$ence with the permission o the Court% (ut added a pro!iso that aminimum period o three months (e allowed to elapse rom the date oapplication or compromise (eore a Court can accept the reBuest%pro!ided any o the parties do not withdraw in the inter!ening period"The >"P" go!ernment may consider (ringing out a similar amendment%as it has already epressed its opinion that the o$ence under section83@-A +PC (e made compounda(le"

'eore parting we must clariy that the Court is o the frm !iew thatacts o cruelty or !iolence against women ha!e neither ceased% norha!e they (een reduced% and the special pro!ision or meeting thispro(lem must (e retained in the statute (oo7" Me Buote with appro!althe !iew epressed in paragraph 11 o the recent .aw Commission o+ndia% Consultation Paper-cum-Questionaire regarding section 83@-A o+ndian Penal Code;VMhile the Commission is appreciati!e o the need to discourageunjustifed and ri!olous complaints and the scourge o o!er-implication% it is not inclined to ta7e a !iew that dilutes the e#cacy o

s" 83@-A to the etent o deeating its purpose especially ha!ing regardto the act that atrocities against women are on the increase" A(alanced and holistic !iew has to (e ta7en on weighing the pros andcons" There is no dou(t a need to address the misuse situations andarri!e at a rational solution legislati!e or otherwise"V.ist this case on @"11"*611 (eore the regular (ench to (e headed (yone o us :HonU(le Amar ,aran =The ,tate go!ernment through the Chie ,ecretary% >"P"% the Principal,ecretary% :Home=% >"P"% ,ecretary .awL ."R" >"P"% irector eneralPolice >"P"% and &em(er-,ecretary% >"P" .egal ,er!ices Authority may

issue appropriate guidelines or circulars or laying down a system or56


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proceeding in matters where reports are lodged o commission oo$ences under section 83@ A +PC where immediate arrests may not (enecessary% or laying down the appropriate criteria in this regard% andor sending the matters or mediation (eore the mediation cells in theCi!il Courts% in accordance with the aoresaid directions o this Court"

The Principal ,ecretary% :inance=% >"P" may apprise the Court as to thepro!ision or fnance or appointing social wor7ersLpanel lawyers at the&ahila Thanas% or ensuring that appropriate training is gi!en to thesocial wor7ers% legal aid lawyers% and concerned police o#cers oracilitating the mediation process% or ma7ing a!aila(le adeBuateinrastructureL manpower at the mediation cells in the Ci!il Courts% andor meeting epenses on other contingencies" .et the aoresaidauthorities su(mit their compliance reports within 8 wee7s" Me wouldalso li7e reports rom all the ,ecretaries o the istrict .egal ,er!icesAuthorities to su(mit their compliance reports :through the istrict

udges= or getting the aorementioned minor matters relating too$ences under section 83@ A +PC settled through mediation and thedi#culties they encounter or orsee in complying with the directions othis Court (y the net listing" The ,tate go!ernment is also directed tosu(mit its report on the net listing on the suggestion o the Court tota7e steps or ma7ing the o$ence under section 83@-A +PCcompounda(le with the permission o Court (y amending section 5*6Cr"P"C in >"P" as has (een done in the case o Andhra Pradesh"Registrar-eneral is directed to orward copies o this order within awee7 to the Chie ,ecretary% Principal ,ecretary% :Home=% .aw

,ecretaryL.R% >"P"% Principal ,ecretary :inance=% >"P"% ""P"% >"P"%&em(er-,ecretary% >"P"% .egal ,er!ices Authority% >"P"% ,ecretariesL Ci!iludges :,enior i!ision= through istrict udges in all districts in >"P"%,ri Asho7 &ehta% Drgani)ing ,ecretary% Allaha(ad High Court%&ediation Centre% ,ri Pan7aj ?aB!i% and ,ister ,hee(a ose% Ad!ocatesor the inter!enors% o!ernment Ad!ocate% >"P" and other ad!ocatesand o#cials present in the hearing on @"@"11 or inormation andcompliance"

Drder ate ;- 56"3"*611H,&

arrest proceedures and rights

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