This research paper studies the concept of illegal arrests in India and the
procedures established to arrest a person. It is a known fact that it is the
duty of the judicial administration to ensure security to the basic human rights
and to upheld those rights. However, the cases of illegal arrests have increased
in past few years. This is mainly due to the vast discretionary powers exercised
by the police officers and the misuse of those powers by them.
According to a report issued by National Police Commission of India, around 60%
of the arrests made by the police are unnecessary and unjustified. Moreover,
there have been circumstances where it is clearly seen that the police had not
complied to stated procedures provided by the Code of Criminal Procedure, 1973
along with the Constitution of India. The Supreme Court in several cases have
pointed out this deviance.
This research paper also studies the difference between illegal arrests and
false arrest stating the situations that led to the occurrence of illegal
arrests in India. Furthermore, the research paper also entails about the right
and lawful procedures of arresting a person and the rights of that person as
stated by the law. In addition to this, the research paper also describes which
rights of the person are getting violated and credible judgements to support the
violation of a basic human right.
The research paper explicitly explores moral as well as legal consequences of
the unjust actions of the police and analyses it from the viewpoint of the
victim. The research paper considers the opinions of legal professionals and
makes recommendations and suggestions to reduce cases of illegal arrests in
Objectives Of The Study
The aim of the following study is to:
- Understand the graveness of Illegal Arrests
- Understand the right and lawful procedure under CrPC.
- Study the need of a reformation of current laws to minimise illegal
Doctrine methodology is adopted for this project research. It involves the use
of secondary data which is collected from various articles, websites, books etc.
Doctrinal research asks what is law on a particular issue. It is concerned with
analysis of the doctrine and how it has been applied and developed. This type of
research is known as “pure theoretical research.” It consists of, either simple
research directed at finding a particular statement of law or, more complex and
in-depth analysis of legal reasoning.
Meaning of Arrest
The word ‘arrest’ is not specifically defined in the Code of Criminal Procedure
of 1973. However, the procedure of arresting a person is clearly defined in
section 46 of the Code of Criminal Procedure of 1973. In terms of a legal
dictionary, the word arrest conveys the meaning, “to deprive one’s liberty by
virtue of legal authority
The word arrest can also be interpreted as ‘to stop’
or ‘to seize’. Thus, it can be said that “an arrest is a seizure or forcible
restraint or an exercise of a power by a legal authority, to deprive a person of
his/her liberty, in response to a criminal charge.”
An Illegal Arrest is different from False Arrest
As the name itself connotes, an arrest which is not made in accordance to the
procedures established by law, is illegal. Thus, it can be said that absence of
a probable cause and non-abiding of the stated procedure, are two main
essentials necessary to indicate the case of illegal arrest.
However, false arrest consists of an unlawful restraint of an individual’s
personal liberty or freedom of movement by another purporting to act according
to the law.
Illegal arrest falls under the category of criminal wrongs while, false arrest
falls under civil wrongs or torts. An action can be instituted for false arrest
to acquire damages. However, in the case of illegal arrest, compensatory damages
will be awarded only on proof of illegality of arrest. Therefore, to conclude,
there is a thin line of difference between the two kinds of arrest, which is
essential in identifying the appropriate laws.
Causes of Illegal Arrests in India
A lot of factors like corruption, political influence, illiteracy etc.,
contribute in increasing cases of illegal arrests in India. Furthermore, having
little knowledge or no knowledge of one’s own rights also contributes in
spreading of its instances. Other than social factors, factors like mistaken
identity, false confessions, perjury, backlog of cases and false forensic
evidences are also responsible for illegal arrests in not only India but
worldwide. Absence of stringent laws can be said to be a major contributor.
A Deviance from Stated Procedure
Illegal arrests are rampant and they indicate a high deviation from the
procedure stated under Code of Criminal Procedure of 1973. To understand what
exactly is a legitimate arrest, it is crucial to know the rights provided under
CrPC. Section 41 of CrPC states when a police officer can arrest without
Under this section wide powers are conferred on police to arrest,
mainly in cognizable offences, without having to go to Magistrate for obtaining
warrant of arrest. There can be no legal arrest if there is no information or
reasonable suspicion that the person has been involved in a cognizable offence
or commits offence(s), specified in Section 41.
The burden is on the police officer to satisfy the court before which the arrest
is challenged that he has reasonable ground of suspicion. Section 46 of CrPC
envisages modes of arrest i.e. submission to custody, touching the body
physically or confining the body. Arrest is restraint on personal liberty.
Unless there is submission to custody, by words or by conduct, arrest can be
made by actual contact. In case force is required, it should be no more than
which is justly required and this section does not give a right to cause death
of a person, who is not accused of an offence punishable with the death or with
imprisonment for life.
Where a woman is to be arrested, unless the police
officer is a female, the police officer shall not touch the person of the woman
for making an arrest and arrest would be presumed on her submission to custody
on oral intimation. After sunset and before sunrise, no woman can be arrested,
except in exceptional circumstances and upon prior written permission from the
local Magistrate. Section 49 of CrPC provides that there should be no more
restraint than is justly necessary to prevent escape i.e. reasonable force
should be used for the purpose, if necessary; but before keeping a person under
any form of restraint there must be an arrest.
Restraint or detention without
arrest is illegal. Section 50(1) CrPC provides:
every police officer or other person arresting any person without a warrant
shall forthwith communicate to him full particulars of the offence for which he
is arrested or other grounds for such arrest.
Based on decisions of Supreme Court in Joginder Kumar v. State of UP
(1994) and D.K. Basu v. State of West Bengal,
(1997) substantial amendments have
been enacted in Section 50-A of CrPC in the year 2006 making in obligatory on
the part of the police officer making an arrest to inform the friend, relative
or any nominated person of the arrested person about his arrest, inform arrested
person of his rights and make an entry in the register maintained by the police.
The magistrate is also under an obligation to satisfy himself about the
compliance of the police in this regard.
Section 50(2) of CrPC provides that any person arrested without warrant shall be
immediately informed of the grounds of his arrest, and if the arrest is made in
a bailable case, the person shall be informed of his right to be released on
bails. Section 50 is mandatory and carries out the mandate of Article 22(1) of
the Constitution of India. Section 51 of CrPC allows a police officer to make
personal search of arrested persons.
Section 54 of CrPC provides for compulsory medical examination by a medical
officer in service of central or state government, or by registered medical
practitioner, upon non-availability of such medical officer. Female arrestees
can only be examined by female medical officer or registered medical
practitioner. However, Section 53 & 53A of CrPC provide if there are reasonable
grounds for believing that an examination of arrestee, on a charge of committing
rape or other offence, will afford evidence so as to the commission of such
offence, it shall be lawful to medically examine the arrestee.
Section 57 is concerned solely with the question of the period of detention. The
intention is that the accused should be brought before a magistrate competent to
try or commit, with the least delay. The right to be taken out of police custody
by being brought before a Magistrate is vital in order to prevent arrest and
detention, with a view to extract confession or as a means of compelling people
to give information.
While after the arrest, a person shall have the right to consult and to be
defended by a counsel of his choice; arrestee shall be entitled to free legal
aid. Apart from ensuring a fair prosecution, a society under the Rule of law has
also a duty to arrange for the defence of the accused, if he is too poor to do
Illegal Arrests: In complete violation of Articles 21 and 22
Article 21 of Indian Constitution provides few sparkles of hope to the lives of
arrested, undertrials and convicts. The treatment of such people has to be
humane and, in the manner, prescribed by law.
In Maneka Gandhi v. Union of
, (1978), the Supreme Court held that State and for that matter the police
as its principal law enforcing agency have the undoubted duty to bring offenders
to book. Even so, the law and procedure adopted by the State for achieving this
laudable social objective have to conform to civilized standards. The procedure
adopted by the State must, therefore, be just, fair and reasonable.
The powers for making an arrest by police are subject to restraints and judicial
supervision and scrutiny to protect the fundamental right to life under Article
21 of the Constitution of India of all persons. Imposition of such restraint is
clearly the recognition of rights of the arrested person. Chapter-V of the
Criminal Procedure Act contains provisions relating to arrest of persons,
restrains and judicial supervision & scrutiny.
In Nilabati Behera v. State of Orissa and Others
, (1993), a three Judge bench of
Supreme Court held, “It is an obligation of the State, to ensure that there is
no infringement of the indefeasible rights of a citizen to life, except in
accordance with law while the citizen is in its custody. The precious right
guaranteed by Article 21 of the Constitution of India cannot be denied to
convicts, under trials or other prisoners in custody, except according to
procedure established by law.
There is a great responsibility on the police or
prison authorities to ensure that the citizen in its custody is not deprived of
his right to life. His liberty is in the very nature of things circumscribed by
the very fact of his confinement and therefore his interest in the limited
liberty left to him is rather precious. The duty of care on the part of the
State is strict and admits of no exceptions. The wrongdoer is accountable and
the State is responsible if the person in custody of the police is deprived of
his life except according to the procedure established by law.”
In Joginder Kumar case
, the question arose for consideration was, ‘whether the
private rights of an individual superseded the protection of society’.
Considering the increase in crime and human rights violations by way of
indiscriminate arrests, the Hon’ble Court sought a way to strike a balance
between the two. It was observed that a realistic approach was essential to the
problem. It was held by a three-judge bench of Supreme Court that an arrest
cannot simply be made because a police officer has been conferred with this
particular power. There remained a difference between the power to arrest and
justification for the exercise of this power.
Mere allegation of an offence is not a reason good enough to make an arrest of
the person. Similarly, a reasonable belief is not enough for a person to be
arrested by a police officer, keeping in mind the constitutional rights granted
to the person. It was also held that Articles 21 and 22(1) of the Constitution
should be protected and recognized.
For the effective enforcement of these fundamental rights, an arrested person
being held in custody is entitled, if he so requests, to have one friend
relative or other person, who is known to him or likely to take an interest in
his welfare, be told, as far as is practicable, that he has been arrested and
where is he being detained. An entry shall be required to be made in the Diary
as to who was informed of the arrest. These protections from power must be held
to flow from Articles 21 and 22(1) and enforced strictly.
Further in Joginder Kumar case
, the Third Report of National Police Commission
was cited, which mentioned power of arrest as one of the chief sources of
corruption in the police and suggested that a staggering number of arrests were
either unnecessary or unjustified and that such unjustified police action
accounted for 43.2% of the expenditure of the jails.
In Byrne Vs Ireland
, (1972), it was observed by the judge that, “in several
parts in the constitution duties to make certain provisions for the benefit of
the citizens are imposed on the State in terms which bestow rights upon the
citizen and, unless some contrary provision appears in the Constitution, the
Constitution must be deemed to have created a remedy for the enforcement of
these rights. It follows that, where the right is one guaranteed by the State,
it is against the State that the remedy must be sought if there has been a
failure to discharge the constitutional obligation imposed.'
In Lucknow Development Authority Vs M.K. Gupta (1994), it was held that:
public servant by mala fide, oppressive and capricious acts in performance of
official duty causes, injustice, harassment and agony to common man and renders
the State or its instrumentality liable to pay damages to the person aggrieved
from public fund, State or its instrumentality is duty bound to later recover
the amount of compensation so paid from the public servant concerned.
Reformation of existing laws: A necessity
India’s criminal justice system abounds with circumstances that can wrongfully
deprive citizens of their right to liberty. The misconduct of investigative
agencies, poor investigative skills, political pressure and criminal prejudice
towards certain sections of the citizenry, an enormous backlog in the judiciary,
as well as a highly stratified access to justice, are just a few instances.
Law Commission of India points out that the criteria for compensation should be
wrongful prosecution as opposed to wrongful incarceration or wrongful
conviction. Both wrongful incarceration and conviction can be either too narrow
or too wide a criterion given the fact that acquittals often take place on pure
procedural grounds, or because of the benefit of doubt, or because of
commonplace judicial delays.
For wrongful prosecution, the commission points out
two key criteria – malicious prosecution and absence of good faith.
The Law Commission of India has come up with an ingenious criterion to close the
vast gap between the impossibly high standards of proof required to prove
malicious prosecution and the vastly loose category of all acquittals. Picking
up from the criminal justice system’s own concept of “good faith” that protects
the duty bearers of the State – the absence of a wrong intention even if the
resultant acts were wrong – the Law Commission of India turns it around into a
ground for compensation.
The category works very well. For, in the vast majority of cases of wrongful
prosecution where people have spent between eight and 18 years in prison without
doing anything wrong, what can at best be proved in a court of law is
carelessness, oversight and a lack of action on the part of duty bearers when it
was due. In such cases of serious miscarriage of justice, a glaring combination
of such oversights and inaction is visible. This establishes a veil that hides
malicious intent, making it impossible to prove in a court of law. The
commission, very ably, constitutes such an absence of good faith, a requirement
on the part of the State while prosecuting citizens, as requiring remedial
compensation by the State.
This category also detaches the act of an aggrieved citizen asking for a remedy
from the necessity of attributing blame on somebody by bringing into its fold
genuine cases of oversight, where no one person or agency is responsible, and
yet wrong has still been done. While becoming a party to the International
Covenant on Civil and Political Rights in 1996, India put a reservation to
Article 14 (6), which mandates a legal framework for compensation and
However, the Supreme Court has periodically awarded such
compensation, thus rejecting the reservation. The latest case is that of Indian
Space Research Organisation scientist Nambi Narayanan, who was granted Rs 50
lakh by the apex court last week, after fighting a battle to prove his innocence
for 24 years.
The cases are increasing at a rapid rate and the most important thing that can
be done is making everyone aware of their rights under the law and rights as
provided by the Constitution of India. Furthermore, media censorship is
essential since, the current trend is subjecting the arrested to a media trial
even when there is no substantial evidence or a formal declaration from the
judiciary. The person so arrested must be given the chance to prove his/her
innocence and must be given the opportunity to communicate with the other
The Criminal administration must take steps to make more strict laws or make
certain changes in the laws in force and to provide remedies to victims of
illegal arrests. Furthermore, the doctrine of speedy trial must be put in
practice and there should be less adjournments of cases. The existing
punishments are in dire need to be enhanced. Moreover, such increasing incidents
demand more firm punishments to be introduced that cover all the aspects of the
crime and all the offenders, irrespective of their profession or material
It is important to understand that when wrongfully prosecuted, a citizen loses
life; the opportunities and pursuits that create, mental and physical health,
dignity and social standing; not just of herself but also of her family. Such
loss, if at all can be monetised, can be done in an exemplary fashion. Exemplary
damages, compensation over and above the actual loss suffered by the plaintiff –
need to be coupled with real costs of fighting the legal battle in India, where
justice is often a beast that needs the right intersection of caste, class,
power and cash for it to be drawn out of its cavernous corners.