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N.H.R.C.

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 recognize 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 possible 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

  • 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]

  • Arrest cannot be justified merely on the existence of power, as a matter of law, to arrest without a warrant in a cognizable case.

  • 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.

  • 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}

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Last updated on 08-03-2006