without informing the grounds of arrest
Anil Kumar kamboj Delhi M-9650
(Querist) 27 August 2008
This query is : Resolved
does the arrest become illegal,whereno grounds of arrest are given to the accused?
Manish Singh
(Expert) 27 August 2008
it becomes ulawful detention and you can aproach the HC.
deepak kumar
(Expert) 27 August 2008
once you have been remanded in a case the arrest becomes legal.
advocatesdiary.blogspot.com
Tribhuwan Pandey
(Expert) 27 August 2008
Where no grounds of arrest it is called illegal detention. The victim can approach to the High Court to invoke his fundamental rights.
K.C.Suresh
(Expert) 28 August 2008
Dear Anil, The following guideline may help you.
NHRC GUIDELINES REGARDING ARREST
Need for Guidelines
Arrest involves restriction of liberty of a person arrested and therefore, infringes the basic human rights of liberty. Nevertheless the Constitution of India as well as International human rights law recognise the power of the State to arrest any person as a part of its primary role of maintaining law and order. The Constitution requires a just, fair and reasonable procedure established by law under which alone such deprivation of liberty is permissible.
Although Article 22(1) of the Constitution provides that every person placed under arrest shall be informed as soon as may be the ground of arrest and shall not be denied the right to consult and be defended by a lawyer of his choice and S.50 of the Code of Criminal Procedure, 1973 (Cr. PC) requires a police officer arresting any person to "forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest". in actual practice these requirements are observed more in the breach. Likewise, the requirement of production of the arrested person before the court promptly which is mandated both under the Constitution [Article22(2)] and the Cr. PC (Section 57] is also not adhered to strictly.
A large number of complaints pertaining to Human Rights violations are in the area of abuse of police powers, particularly those of arrest and detention. It has, therefore, become necessary, with a view to narrowing the gap between law and practice, to prescribe guidelines regarding arrest even while at the same time not unduly curtailing the power of the police to effectively maintain and enforce law and order and proper investigation.
PRE-ARREST
Ø The power to arrest without a warrant should be exercised only after a reasonable satisfaction is reached, after some investigation, as to the genuineness and bonafides of a complaint and a reasonable belief as to both the person's complicity as well as the need to effect arrest. [Joginder Kumar's case- (1994) 4 SCC 260).
Ø Arrest cannot be justified merely on the existence of power, as a matter of law, to arrest without a warrant in a cognizable case.
Ø After Joginder Kumar's pronouncement of the Supreme Court the question whether the power of arrest has been exercised reasonably or not is clearly a justiciable one.
Ø Arrest in cognizable cases may be considered justified in one or other of the following circumstances:
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc. and it is necessary to arrest the suspect to prevent him from escaping or evading the process of law.
(ii) The suspect is given to violent behaviour and is likely to commit further offences.
(iii) The suspect requires to be prevented from destroying evidence or interfering with witnesses or warning other suspects who have not yet been arrested.
(iv) The suspect is a habitual offender who, unless arrested, is likely to commit similar or further offences. [3rd Report of National Police Commission]
Ø Except in heinous offences, as mentioned above, an arrest must be avoided if a police officer issues notice to the person to attend the police station and not leave the station without permission. (see Joginder Kumar's case (1994) SCC 260).
Ø The power to arrest must be avoided where the offences are bailable unless there is a strong apprehension of the suspect absconding .
Ø Police officers carrying out an arrest or interrogation should bear clear identification and name tags with designations. The particulars of police personnel carrying out the arrest or interrogation should be recorded contemporaneously, in a register kept at the police station.
ARREST
Ø As a rule use of force should be avoided while effecting arrest. However, in case of forcible resistance to arrest, minimum force to overcome such resistance may be used. However, care must be taken to ensure that injuries to the person be
