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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