Rights of Arrestee

The Constitution of India guarantees the citizen's fundamental rights to participate in the political life of the country and to express themselves as political beings. But the freedom is hedged in by many legal restrictions by the politicians. Even legitimate activities of citizens may be considered as infringement of the law. The general ignorance of our legal rights is being exploited by law enforcing agents of the State and consequently violation of human rights is increasing day by day at an alarming proportion. The objective of this article on Arrest and Bail is to raise the legal consciousness of the citizens with regard to their rights when confronted by the police and agents of the judiciary.

A person is arrested when a police officer or a citizen takes him into custody or otherwise substantially deprives him of his freedom of action so that he may be held to answer for a crime or an offence. The police in India do not have any power to detain anybody for questioning unless he is arrested with or without warrant. 

Warrant of Arrest 
It is a written order issued by a Court to a police officer to arrest and produce an offender or to search his premises for a particular thing. A police officer who executes the warrant shall notify the substance thereof to the person to be arrested and if he demands, shall show him the warrant. He is expected to bring the required person before the Court without unnecessary delay. 

Valid Warrant
A warrant of arrest should be (i) in writing (ii) signed by the presiding officer of the Court and (iii) should bear the seal of the Court. It should also contain the name of the accused, his address and indicate the offence with which he is charged. If any of these factors is absent, the warrant is not in order and an arrest made in execution of such a warrant is illegal. Warrants are of two kinds: 

i) Bailable 
ii) Non-Bailable 

A bailable warrant is a Court's order which contains a direction that if the person arrested executes a bail with sufficient sureties for his attendance before the Court, he may be released from custody. In that case it shall further state the number of sureties, the amount of the bond, and the time for attending the Court. (Section 71 Cr.P.C.) 

In case of a non-bailable warrant the direction for bail will not be endorsed on the warrant. 

Arrest without Warrant 
A police officer has power to arrest a person without warrant if he is suspected of having committed a cognizable offence. Normally in non-cognizable offences a police officer cannot arrest a person without a warrant from a Magistrate. 

In the first Schedule of the Criminal Procedure Code (Cr.P.C.) offences have been classified and enumerated as cognizable and non-cognizable. The more serious offences such as murder, rape, robbery, theft, and waging war against the State etc. are cognizable. 

A person can be arrested without a warrant if the following condition are satisfied:
1. If he is concerned in a cognizable offence or if there is a reasonable suspicion, complaint or information that he has committed a cognizable offence; 

2. If he possesses implements of house breaking; 

3. If he possess stolen property; 

4. If he is proclaimed an offender; 

5. It he obstructs a police officer on duty' 

6. If he escapes from a legal custody; 

7. It he is a deserter from the army, navy or air force; 

8. Where he is out of India, if he commits an offence punishable under any extradition law or under the Fugitive Offenders Act; 

9. If he is released convict who breaks the restrictions imposed by the Court on his movements; 

10. If he is suspected of preparing to commit a cognizable offence; 

11. If he is habitual criminal; 

12. If he, after committing a non-cognizable offence in the presence of a police officer, refuses to give the police his name and address or has given him a false name and address; 

13. If he is required by a police officer of another police station who suspects that he has committed a cognizable offence; 

How is Arrest made? 
Arrest is complete when there is submission to custody by word or action, and in such a case touching or confining of the body of the person arrested is not necessary, but mere surrounding of a person by the police does not amount to arrest. (Section 46). 

If someone forcibly resists arrest, the police officer can use all means necessary to effect the arrest. (Sec. 46). He can even cause your death provided you are charged with an offence punishable with death or lifetime imprisonment. However, he is not justified in using force more than necessary to obtain the arrest (Sec.46). Therefore, unnecessary restraints or causing physical inconveniences tying of hands and feet are not permissible if there is no necessity for doing so.

Guidelines For Police Officers In India On Making Arrests
One of the most important powers, possessed by the police under law, and exercised by it on a day to day basis, is the power of arrest. The exercise of this power involves discretion, which makes it liable to misuse. In fact, it is known to be often misused. 

The National Police Commission [NPC] examined this subject in its Third Report (January, 1980) and came to the following conclusions: 
A large number of discretionary and unnecessary arrests are made by the police, mainly on minor grounds.
This gives rise to corruption, highhandedness and other malpractices, thereby adversely affecting police image. 
It also leads to overcrowding in prisons, and unnecessary expenditure on maintaining arrested persons. 
Because the exercise of arrest powers can seriously restrict individual rights, a number of guidelines have been issued in respect of arrest. These guidelines have a direct bearing on the image of the police in the community; they also enable police officers to use their powers judiciously, in a manner that safeguards human rights, without diluting effectiveness to curb crime or maintain order. 

The guidelines listed below have been prepared with this objective in view.

The Criminal Procedure Code, allows a police officer to arrest a person if s/he:

i. is involved in a cognizable offence: a reasonable complaint has been made against her/him; or credible information has been received about her/him; or a reasonable suspicion exists regarding her/his involvement in a cognizable offence; 

ii. unlawfully keeps implements of housebreaking in her/his possession; 

iii. is a proclaimed offender; 

iv. is found to be in possession of property which may reasonably be suspected to be stolen; or is suspected of having committed an offence in relation to stolen property; 

v. obstructs a police officer from lawfully discharging her/his duties or escapes or attempts to escape from lawful custody; 

vi. is suspected to be a deserter from the Armed Forces; 

vii. commits or is suspected of committing an offence outside India, which is punishable in India and for which s/he can be detained in custody;

viii. being a released convict, commits a breach of any rule made by the State Government under Section 356 Code of Criminal Procedure, 1973 requiring a previously convicted offender to notify her/his change of residence; 

ix. requires to be arrested on the request of another police officer and sufficient grounds for arrest have been shown by the police officer requesting the arrest; 

x. belongs to one or more categories of persons specified in Sections 109[3] or 110[4] of the Code of Criminal Procedure, 1973.

A police officer can arrest a person who commits or is accused of committing a non-cognizable offence in her/his presence and refuses to give her/his name and address or gives a name and address that appears to be false.

A police officer can arrest a person without warrant, if it appears that the person is making a design to commit a cognizable offence.