Arrest and Right to Liberty under Indian Law
Under Indian law, the
power of arrest is an extraordinary power that is granted to law enforcement
officials for the purpose of ensuring the safety and security of the community.
Article 21 of the Constitution of India guarantees the right to life and
personal liberty to all citizens, and this right cannot be taken away except in
accordance with the procedure established by law. Therefore, any arrest that is
made must be in compliance with the provisions of the law, and must not
infringe upon the rights of the individual being arrested.
Section 41 of the Code
of Criminal Procedure, 1973 (CrPC) gives police officers the power to arrest
without a warrant in certain circumstances, including when the officer has
reason to believe that the person has committed a cognizable offence. However, the
Supreme Court of India has held that this power must be exercised with caution
and in accordance with the guidelines laid down in various judgments.
In the landmark case of
Joginder Kumar v. State of Uttar Pradesh (1994), the Supreme Court held that
the power to arrest must be exercised only when it is necessary and justified.
The court also laid down certain guidelines to be followed by the police,
including the following:
1. The police officer must have reasonable grounds for
believing that the person is involved in the commission of a cognizable
offence.
2. The police officer must record the reasons for making
the arrest.
3. The person being arrested must be informed of the
grounds of arrest and must be produced before a magistrate within 24 hours.
4. The police officer must inform the person being
arrested of his right to bail.
5. The police officer must use minimum force necessary to
effect the arrest.
In another landmark case
of D.K. Basu v. State of West Bengal (1997), the Supreme Court held that
custodial violence violates the fundamental rights of the arrestee, and that
all police personnel must follow certain guidelines while arresting and
detaining a person. The court laid down the following guidelines:
1. The person being arrested must be informed of the
reasons for the arrest and his right to have someone informed of his arrest.
2. The person being arrested must be examined by a
medical officer at the time of arrest, and a memo of his physical condition
must be prepared.
3. The person being arrested must be produced before a
magistrate within 24 hours.
4. The person being arrested must be permitted to meet
his lawyer during interrogation.
5. The person being arrested must be permitted to inform
a relative or friend about his arrest and detention.
The Supreme Court has
also observed that the power to arrest must not be misused, and that arbitrary
or unlawful arrest violates the fundamental rights of the individual. In the
case of Arnesh Kumar v. State of Bihar (2014), the court held that arrest
should be the last resort, and that the police must follow the principle of
proportionality while deciding whether to arrest a person. The court also held
that in cases where the maximum punishment is up to seven years' imprisonment,
the police officer should not arrest the accused without conducting a
preliminary investigation, and without recording reasons for the arrest in
writing.
In conclusion, the right
to liberty is a fundamental right guaranteed by the Constitution of India, and
any arrest made must be in accordance with the procedure established by law.
The power to arrest must be exercised with caution, and police officers must
follow the guidelines laid down by the Supreme Court to ensure that the rights
of the individual are not violated.
Arrest of women : Under
Indian law, there are restrictions on the arrest of women to protect their
dignity and privacy. Section 46(4) of the Code of Criminal Procedure, 1973
provides that a woman cannot be arrested after sunset and before sunrise,
except in exceptional circumstances and with the prior permission of a Judicial
Magistrate.
In addition, the Supreme
Court of India has laid down guidelines to be followed in cases where women are
to be arrested. These guidelines include:
1. Women should be arrested by female police officers or,
in their absence, by male police officers in the presence of a female.
2. Women should not be arrested at night, except in
exceptional circumstances and with the prior permission of a Judicial
Magistrate.
3. Women should not be subjected to any form of physical
restraint unless absolutely necessary.
4. Women should be provided with facilities such as
separate lock-ups, toilets, and bathing arrangements.
These guidelines are
intended to ensure that the arrest of women is conducted in a manner that is
respectful of their dignity and privacy. It is important to note that these
restrictions apply only to the arrest of women and not to other categories of
persons.
Arrest without Warrant: The
authority to arrest without a warrant varies depending on the rank of the Police
officer.
1. Police officers of the rank of Sub-Inspector and above
can arrest without a warrant in cases where a cognizable offence has been
committed or where there is a reasonable suspicion of having committed a
cognizable offence.
2. Police officers of the rank of Assistant Sub-Inspector
and below are also authorized to make an arrest without a warrant, but only in
cases where the offence is committed in their presence.
3. In cases where a non-bailable offence has been
committed and the offender is likely to abscond or evade arrest, any police
officer may arrest the offender without a warrant.
It is important to note
that the power to arrest is an extraordinary power that must be exercised with
caution and in accordance with the guidelines laid down by the Supreme Court of
India.
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