Arrest how made, Arrest by Magistrate and Procedure for Investigation (Detailed Discussion).
Arrest how made, Arrest by Magistrate and Procedure for Investigation.
Arrest, Right of Arrestee and Procedure of Investigation
Author: Mr. Krishna Murari Yadav
Assistant Professor, LC-I, Faculty of Law, University of Delhi, Delhi.
LL.B. DU Question 6(a)– 2017)
(1)When may a police officer arrest without warrant?
(2)What are the rights available to an accused in the Cr.P.C.
(3)Discretion to arrest a person in the cognizable matter is one thing but the justification of arrest is quite different. How the Supreme Court interpreted this position with specific reference to section 41A in Arnesh Kumar vs. State of Bihar (2014). Discuss.
(4)Discuss the development of jurisprudence of right of an accused person in our country in the light of various constitutional and statutory provisions.
(5)Discuss the procedure and power of the police to investigate cognizable cases.
(6) Enumerate briefly the rights of an accused or arrested person.
Bihar (J) 2011 Question No. 10(b)
When a Magistrate arrest a person without a warrant, is he required to inform the person arrested of the grounds of such arrest? If so under which provision of Criminal Procedure Code? Explain.
Bihar (J) 2011 Question No. 10(b)
When can police arrest a person without a warrant?
Bihar (J) 2011 Question No. 10(b)
What are guidelines laid down by the Supreme Court for the police while arresting a judicial officer?
Uttar Pradesh (J) 1992
What are the provisions under Cr.P.C. for the investigation when it is not completed within 24 hours? Answer- 167. I have already discussed.
Uttar Pradesh (J) 1997
Briefly describe the circumstances where under a police officer, a private person or a Magistrate may arrest a person without a warrant.
Uttar Pradesh (J) 2000
In what circumstances may a police officer arrest a person without an order from a magistrate and without a warrant. Can an arrest be made by a person other than a police officer? Explain and illustrate.
Uttar Pradesh (J) 2013
When a Magistrate arrest a person without a warrant, is he required to inform the person arrested of the grounds of such arrest? If so under which provision of Criminal Procedure Code? Explain.
Uttar Pradesh (J) 2013
Discuss briefly the distinction between the procedure of investigation by a police officer in cognizable and non-cognizable offences.
Uttar Pradesh (J) 2016
On the basis of decided cases discuss briefly the distinction between the procedure of investigation by a police officer in cognizable and non-cognizable offences. Specially for the protection of women against heinous crimes, what major amendments are made in the Cr.P.C by the Criminal Law (Amendment) Act, 2013. Discuss in brief.
Effect of Arrest
Article 21 says that no person shall be deprived of his life or personal liberty except according to procedure established by law. In the Joginder Kumar Case, Supreme Court observed, “Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person.” In the case of Arnesh Kumar vs. State of Bihar (2014) Supreme Court observed that arrest curtails freedom, brings humiliation and casts scars forever. So there is needed to make a balance between individual liberty and social order.
Justification of Arrest
LL.B. DU Question 6(a) – 2017)
Question – Discretion to arrest a person in a cognizable matter is one thing but the justification of arrest is quite different. How the Supreme Court interpreted this position with specific reference to section 41A in Arnesh Kumar vs. State of Bihar (2014). Discuss.
Answer – This question can be solved with the help of two leading cases namely; (1) Joginder Kumar vs. State of Uttar Pradesh (April 25,1994) and Arnesh Kumar vs. State of Bihar (July 2, 2014).
Joginder Kumar vs. State of Uttar Pradesh
Facts- Joginder Kumar who was 28yrs was an advocate. SSP Ghaziabad called him in his office for some inquiries. He along with his brothers reached to the office at 10 a.m. on January 7, 1994. When 12.55 P.M. inquiries were made, it was replied that he will be set free in the evening. It was further informed that Joginder has been sent to Mussoorie. On 9-1-1994, in the evening when the brother of petitioner along with relatives went to P.S. Mussoorie to inquire about the well-being of his brother, it was found that the petitioner had been taken to some undisclosed destination. Under these circumstances, the writ petition for habeas corpus was filed. The said Senior Superintendent of Police along with petitioner appeared before this Court on 14-1-1994.
Judgment – It was laid down that his friend or relative shall be informed and who has been informed it shall be entered into the prescribed book.
In this case, the Supreme Court observed, “No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.”
Arnesh Kumar vs. State of Bihar
Facts –In this case section 498A, IPC and section 4 of Dowry Prohibition Act, 1961 were involved. Anticipatory bail was rejected matter reached to Supreme Court through SLP. Supreme Court discussed thoroughly sections 41(1)(b), 41A and section 167 of Cr.P.C. Certain guidelines were laid down regarding arrest of a person and at the time of using section 167 of Cr.P.C.
Judgment-Police officers make arrest as they believe that they possess the power to do so. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from the power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation.
Supreme Court further observed, “In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated under section 41 is satisfied, the power of arrest needs to be exercised. In fine, before arrest first, the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.”’
Kind of Arrest
Arrest may be divided into two parts namely; (1) arrest without warrant and (2)arrest with warrant. Rule is that cognizable cases person can be arrested without warrant and in case of non-cognizable cases cannot be arrested without warrant. But there is a certain specific circumstance in which a person can be arrested without a warrant even in case of non-cognizable offences.For example section 42. Another example is under section 44word ‘any offence’ have been used. It means it covers all types of offences whether cognizable or non-cognizable offences.
Cognizable Offence – According to Section 2(c) “cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may arrest without warrant.
Non- cognizable offence – According to Section 2(l) “non- cognizable offence” means an offence for which, and “non- cognizable case” means a case in which, a police officer has no authority to arrest without warrant.
Issue of process- According to section 204 (1) in a summons case, the summons shall be issued and in warrant case, either summons or warrant may be issued. There are three exceptional cases mentioned under section 87 when in summons case warrant may be issued. In these cases warrant may be issued either in lieu of or in addition to summons. These are –
(1) If, before the issue of summons, the Court sees the reason to believe that the person has absconded or will not obey the summons.
(2) If, after the issue of the summons but before the time fixed for his appearance the Court sees the reason to believe that the person has absconded or will not obey the summons.
(3) If the person fails to appear on the fixed day for appearance even after receiving the summons and he did not provide reasonable grounds for non-appearance.
An analysis of the provisions under Cr.P.C. shows that a person may be arrested by –
(1) By Police Officer
(i) A police officer without a warrant under sections 41(1) and151;
(ii)under a warrant under section 72 and 74 ;
(iii)under the written order of an officer in charge of a police station under section 55 and 157 ;
(iv) under the orders of a Magistrate under section 44 and
(v)in non-cognizable offence under section 42;
(2)Officer in charge of a police station
An officer in charge of a police station under section 41(2) and 157.
(3)A superior police officer
A superior police officer under section 36.
(4)Military officer
A military officer under section 130 and 131.
(5) Private person –
(1) A private person without warrant under section 43;
(2) Under a warrant under section 72 and 73;
(3) Under the orders of the police officer under section 37, and
(4) Under the orders of a Magistrate under section 37 and 44.
(6) Magistrate
A Magistrate whether judicial or Executive under section 44
LL.B. DU Question 6(a) – 2017)
When may a police officer arrest without warrant?
Bihar (J) 2011 Question No. 10(b)
When can police arrest a person without warrant?
Uttar Pradesh (J) 1997
Briefly describe the circumstances where under a police officer, a private person or a Magistrate may arrest a person without warrant.
Uttar Pradesh (J) 2000
In what circumstances may a police officer arrest a person without an order from magistrate and without a warrant. Can an arrest be made by a person other than a police officer? Explain and illustrate.
Answer –
Arrest without warrant by police (Sections 41(1) and 42)
Section 41(1) enumerates certain circumstances when police can arrest without warrant. This section was amended in 2009. Arrest in cognizable cases was classified in two categories namely cognizable cases punishable up to 7 years and cognizable cases punishable more than 7 years or life imprisonment or death sentence. Section 42 enumerates certain circumstances when police can arrest without warrant in non-cognizable cases.
When police may arrest without warrantSection 41(1)
Any police officer may without an order from a Magistrate and without a warrant, arrest any person-
(a)Cognizable offence in presence – who commits, in the presence of a police officer, a cognizable offence;
(b)Cognizable offence punishable less than or up to 7 yrs.(Arnesh Kumar Case on this point) – against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:–
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii)the police officer is satisfied that such arrest is necessary–
(a) To prevent further offence-to prevent such person from committing any further offence; or
(b)To proper investigation-for proper investigation of the offence; or
(c) Evidence-to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d)Witness- to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to the police officer; or
(e) Presence in court –as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
(ba)Cognizable offence punishable more than 7 yrs. or LI or Death Sentence – against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;
(c)Proclaimed offender – who has been proclaimed as an offender either under this Code or by order of the State
Government; or
(d) Stolen property in possession- in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to
such thing; or
(e)Obstructs a police officer in the execution of duties- who obstructs a police officer while in the execution of his duty, or who have escaped, or attempts to escape, from lawful custody; or
(f) Deserter from army – who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) Offence committed outside India – who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) Breach of rule – who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or
(i) Request to arrest from another police station- for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
Section 42
Arrest on refusal to give name and residence in non -cognizable case – (1) When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
(As per syllabus of DU)
Arrest without warrant by police (Sections 41(1) and 42)
Arnesh Kumar v. State of Bihar(2014)
Facts- Arnesh Kumar got marriage with SwetaKiran in 2007. SwetaKiran claimed that there was dowry demand by Arnesh Kumar and his family. There was an apprehension of arrest under section 498A of IPC and section 4 of Dowry Prohibition Act, 1981. The maximum sentence provided under Section 498-A IPC is imprisonment for a term which may extend to three years and fine whereas the maximum sentence provided under Section 4 of the Dowry Prohibition Act is two years and with fine. Arnesh Kumar applied for anticipatory bail was rejected by Court of Session and High Court. He approached Supreme Court through SLP. In this section Supreme Court thoroughly discussed section 41(1) (b) & (ba).
Decision – Supreme Court directed that all the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down Section 41(1) (b), Cr.P.C. All police officers are provided with a checklist containing specified sub-clauses under Section 41(1)(b)(ii).
Section 43.Arrest by private person and procedure on such arrest.
(1) Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.
(2) If there is a reason to believe that such a person comes under the provisions of section 41, a police officer shall re-arrest him.
(3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.
Problem – A pretty and adorable girl who is law student was being molested in front of the gate of UmangBhawan, Faculty of Law, the University of Delhi by some goons. She opposed. Other students were also seeing this offence. There is no police van and no time to take recourse of police authority. They decided to take some actions. They are justified which of the following act or acts –
(1) To beat them till death i.e. mob lynching.
(2) To beat them and confine them into the building of UmangBhawan.
(3) To beat them in exercise of right of private defence and to hand over to the family of victim.
(4) To beat them in exercise of right of private defence and to hand over to the families of them (accused).
(5)To beat them in exercise of right of private defence as per section 97 of IPC and arrest and hand over to police officer.
Answer – Option 5is correct. This problem is related to section 354, sections 96, 97, 99,101 and 102 of IPC and section 43 of Cr.P.C. In this problem students are ‘private person’. Here private person means those persons who are not legally bound to take action. They had no duty to save the girl. Even though if they are taking action they are justified under Chapter IV of IPC and authorised to arrest under section 43 of Cr.P.C. According to Schedule First of Cr.P.C. offence under section 354 is cognizable and non-bailable. Generally all offences against women are cognizable and non-bailable. As person section 10 of IPC the girl is woman under section 354.
They are not justified for mob lynching. Commencement and existence of right of private defence is governed under section 102 of IPC.
Problem 2– A was raped by X, Y and Z who are very powerful. Victim along with some village members reached to the police station. Officer in charge of police station denied to register FIR against these persons and directed to go back. Family members and other villagers became aggressive and they confined him because he denied to register FIR and handed over him to other senior police officers. Which of the following option is correct-
(1) Family members and other villagers were authorised to confine. They had not committed any wrong because they handed over to senior police officer.
(2) Family members and other villagers were not authorised to confine. SHO was authorized to deny registration of FIR.
(3) Family members and other villagers were authorised to confine because SHO by denying from registration of FIR had committed cognizable and bailable offence under section 166A of IPC.
(4)None of the above.
Answer – (4) None of the above. Family members and other villagers were not authorised to confine SHO. Non-registration of FIR is cognizable offence under section 166A of IPC. But it is a bailable offence. A private person is authorised to arrest under section 43 of Cr.P.C. only when offence is cognizable and non-bailable offence.So Family members and other villagers were not authorised to confine SHO.
So Family members and other villagers had committed offence of wrongful confinement as defined under section 340 of IPC.
Arrest by Magistrate
Section 44–(1) When any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.
(2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.
Difference between Section 44(1) and Section 44(2)
| Ground | Section 44(1)
Offence in his presence |
Section 44(2)
Competent to issue warrant |
| Local Jurisdiction | Local Jurisdiction is sine qua non. In absence of local jurisdiction section 44(1) shall not apply. | Local Jurisdiction is sine qua non. In absence of local jurisdiction section 44(2) shall not be apply. |
| In the presence | Offence is committed in the presence of Magistrate | Offence is not committed in the presence of Magistrate. But he is present in front of Magistrate. The Magistrate is competent to issue warrant for arrest. |
| Commission of offence in his presence is necessary. | Commission of offence in his presence is not necessary. But Magistrate must be competent to issue warrant for arrest. | |
| Custody | Magistrate has power to commit him into custody. | Such power is not conferred here. |
If a Magistrate arrests a person he cannot detain for more than 24 hours. In case of exceeding 24 hours he must comply section 167 of Cr.P.C.
Question – Mr. R is a judge in Patna. He came into Delhi. In his presence a girl was molested by Z in bus. Is R authorised to arrest Z? If Yes under which provision?
Option –
(1) R is not authorised.
(2) R is authorised to arrest under section 44(1).
(3) R is authorised to arrest under section 44(2).
(4) R is authorised to arrest under section 43(1).
Answer – R is authorised to arrest under section 43(1).
Explanation – R as a judge is authorised to arrest under section 44. Offence has been committed in his presence. But other conditions of this section are not being fulfilled. For example, Delhi does not come under his local jurisdiction. His local jurisdiction is confined to Patna. So R as a judge is not authorised to arrest under section 44.
But he is authorised to arrest under section 43 of Cr.P.C. A judge outside his jurisdiction come under the category of any private person. R will come under the category of a private person. Outrage of modesty come under the categories section 354 which is cognizable and non-bailable offence. So R is authorised under section 43 of Cr.P.C to arrest Z.
Note – Section 45 is an exception of section 41 to 44 of Cr.P.C. It provides special protection to army personal (section 45(1)) and State security personal(section 45(2)).
Bihar (J) 2011 Question No. 10(b)
What are guidelines laid down by the Supreme Court for the police while arresting a judicial officer?
Answer –Guidelines for arresting judges were laid down by Supreme Court in the case of Delhi Judicial Service Association Tis Hazari Court, Delhi vs. State of Gujarat And Ors.
Delhi Judicial Service Association Tis Hazari Court, Delhi vs. State of Gujarat and Ors. (Sept.11, 1991)
Facts of Case
Mr. N.L. Patel was posted as Chief Judicial Magistrate at Nadiad in October, 1988. He soon found that the local Police was not cooperating with the courts in effecting service of summons, warrants and notices on accused persons, as a result of which the trials of cases were delayed. He made complaint against the local police to the District Superintendent of Police and forwarded a copy of the same to the Director General of Police but nothing concrete happened. On account of these complaints, Mr. S.R. Sharma, Police Inspector, Nadiad was annoyed with the Chief Judicial Magistrate and he withdrew constables posted in the CJM Court. In April 1989, the CJM filed two complaints with the Police against the Police Inspector and other Police Officials, Nadiad for delaying the process of the Court. On 25th July, 1989, the CJM directed the police to register a criminal case against 14 persons who had caused obstruction in judicial proceedings but subsequently since unqualified apology was tendered, the CJM directed the Police Inspector to drop the cases. The Police Inspector reacted strongly to the CJM’s direction and he made complaint against the CJM to the Registrar of the High Court through the District Superintendent of Police. On account of the aforesaid facts there was hostility between the Police of Nadiad and the CJM.
On 25th September 1989, the Police Inspector met the CJM in his chambers to discuss a case where the Police had failed to submit the charge-sheet within 90 days. During discussion the Police Inspector invited the CJM to visit the police station to see the papers and assured him that he would mollify the sentiments of the police officials. At 8.35 p.m. on the said date, the Police Inspector sent a Police Jeep to the CJM’s residence and he went to the Police Station. According to the CJM when he arrived in the Police Station he was forced to consume liquor and on his refusal he was assulted, handcuffed and tied with rope by Police Inspector, Sub-Inspector, Head Constable, and Constable and that he was sent to Hospital for Medical Examination under handcuffs. A photographer was arranged to take his photograph which was published in the newspapers. The Police Inspector disputed these allegations and according to him the CJM entered his chamber at the Police Station in a drunken state, shouting and abusing him and since he was violent, he was arrested, handcuffed and sent to Hospital for Medical Examination. He himself wanted to be photographed and that is why the photographs were taken by the press photographer.
Guidelines
A Magistrate, Judge or any other Judicial Officer is liable to criminal prosecution for an offence like any other citizen but in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated, Supreme Court issued the following guidelines –
(A)Before arrest intimation to the District Judge or the High Court- If a judicial officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be.
(B)In case of necessity, only formal arrest-If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be affected.
(C)After arrest intimation to the District Judge and High Court-The facts of such arrest should be immediately communicated to the District and Sessions Judge of the concerned District and the Chief Justice of the High Court.
(D)Not taken to Police Station without prior order ofDistrict & Sessions Judge – The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District & Sessions Judge of the concerned District, if available.
(E) Immediate facilities –Immediate facilities shall be provided to the Judicial Officer to communication with his family members, legal advisers and Judicial Officers, including the District & Sessions Judge.
(F)No statement, no panchnama, no medical test except in the presence of the Legal Adviser –except No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical tests be conducted except in the presence of the Legal Adviser of the Judicial Officer concerned or another Judicial Office of equal or higher rank, it’ available.
(G) No handcuffing-There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be over-powered and’ handcuffed. In such case, immediate report shall be made to the District & Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden would be on the Police to establish necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be established that the physical arrest and handcuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily determined by the High Court.
The above guidelines are not exhaustive but these are minimum safeguards which must be observed in case of arrest of a judicial officer.
How to arrest?
Powers to arrest have been mentioned under sections 41 to 44. Manner to arrest has been mentioned under section 46.
Section 46 Arrest how made
(1) In making an arrest the police officer or other people [1] making the same shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action:
[2][Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.]
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.[3]
[4](4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.
Submission to the custody by word or action is sufficient and it must be followed as a rule. When there is no submission by word and action then arresting authorities become competent to touch or confine the body of the person to be arrested.
State of U. P v.DeomanUpadhyaya (May 6, 1960)
In this case, Supreme Court said, “Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient.”
Shri D.K. Basu, Ashok K. Johri vs. State Of West Bengal, State Of U.P.[5]
(Date Of Judgment: 18/12/1996) Bench: Hon’ble Justices Kuldip Singh, A.S. Anand)
Facts (1)Shri D.K. Basu Case- Shri D.K. Basu,the Executive Chairman, Legal Aid Services, West Bengal, a non-political organisation registered under the Societies Registration Act, on 26th August, 1986 addressed a letter to the Chief Justice of India drawing his attention to certain news items published in the Telegraph dated 20, 21 and 22 of July 1986 and in the Statesman and India express dated 17th August 1986 regarding deaths in police lock-ups and custody. It was requested that the letter must be treated as a writ petition under “public interest litigation” category. Considering the importance of the issue raised in the letter being concerned about frequent complaints regarding custodial violence and deaths in police lockup, the letter was treated as a writ petition and notice was issued on 9.2.1987 to the respondents.
Facts (2)-Ashok K. JohriCase – ShriD.K.Basu case was pending. A letter addressed by Shri Ashok Kumar Johri on 29.7.87 to the Hon’ble Chief Justice of India drawing the attention of this Court to the death of one Mahesh Bihari of Pilkhana, Aligarh in police custody was received. That letter was also treated as a writ petition and was directed to be listed along with the writ petition filed by Shri D.K. Basu.
Guidelines – After considering the gravity of custodial death eleven guidelines were laid down which are following –
(1). The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2). That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3). A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4).The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the district and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5). The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6). An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7). The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The Inspection Memo must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8). The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(9). Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(10).The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11).A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
Failure to comply with the requirements –
Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
Addition to the constitutional and statutory safeguards –The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.
Comparison between D.K.Basu Case and Cr.P.C as amended in 2009.
| Grounds | D.K.Basu Case | Cr.P.C as amended in 2009. |
| 1st Guideline
Clear identification of arresting authority
|
The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. | Section 41B(a)
Every police officer while making an arrest shall bear an accurate, visible and clear identification of his name which will facilitate easy identification; |
| 2nd Guideline
Preparation of memo of arrest & The memo shall be attested by at least one witness and countersigned.
|
That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. | Section 41B(b)
Every police officer while making an arrest shallprepare a memorandum of arrest which shall be (i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made; (ii) countersigned by the person arrested. |
| 3rd Guideline
Information to friend |
A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. | Section 41B(c)
Every police officer while making an arrest shallinform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.
|
| 4th Guideline
Notification or display about arrest and arresting authority |
The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the district and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. | Section 41C (2)
The State Government shall cause to be displayed on the notice board kept outside the control rooms at every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests. |
| 8th Guideline | The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. | Section 54.
Section 54 was substituted in 2009. When any person is arrested, he shall be examined by a medical officer in the service of Central or State Government, and in case the medical officer is not available, by a registered medical practitioner soon after the arrest is made. |
| 10th Guideline
Meeting of advocate of his choice.
|
The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. | Section 41D
When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation. |
| 11th Guideline
Police Control Room |
A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. | Section 41C
The State Government shall establish a police control room– (a) in every district; and (b) atState level. |
Arnesh Kumar v. State of Bihar(July 02, 2014)
Fact- Marriage between Arnesh Kumar and Sweta was solemnized in 2007. Sweta alleged that her husband and his family members were demanding Maruti car, eight lakhs rs. an air conditioner, television set etc. In anticipation of arrest for an offence committed under section 498A (Maximum punishment 3 Yrs) and section 4 of the Dowry Prohibition Act(Maximum punishment 2 Yrs) Arnesh Kumar applied for anticipatory bail which was rejected by Court of Session and later on it was also rejected by High Court. Special Leave Petition (SLP) was filed before the Supreme Court.
Decision- In this case mainly interpretation of section 41(1) (b) was involved. As we know that by 2009 amendment section 41 was substituted drastically. Supreme Court issued guidelines and said that section 41(1)(b) must be strictly followed. Section 41A deals those cases when arrest was not done under section 41. It was directed that if section 41 is violated arresting authority will be responsible. If Magistrate is not strictly complying section 167, he will also be responsible.
Guidelines-
Supreme Court observed, “Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:
(1) Arrest under Section 498-A– All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
(2) Checklist – All police officers are provided with a checklist containing specified sub-clauses under Section 41(1)(b)(ii);
(3) Forwarding of checklist to Magistrate–The police officer shall forward the checklist duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
(4) Section 167 of Cr.P.C –The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
(5) Notice within two weeks under Section 41A – – Notice of appearance in terms of Section 41A of Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
(6) Consequences of failure to comply direction -Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
(7) Punishment for Judicial Magistrate- Authorizing detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
Direction for all cases punishable up to seven years-We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
Some other important point-
(1) Effect of Arrest –Arrest curtails freedom, brings humiliation and casts scars forever. So there is needed to make a balance between individual liberty and social order.
(2) Power of arrest and justification of it- The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from the power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. For example arrest under section 41(1), (b) need some justification. There is a total of six justification i,e. one + five =Six.
(3) Right of accused – An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57 Cr.P.C. to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey.
(4) Relation between section 167 and section 41- Before a Magistrate authorises detention under Section 167 CrPC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested are satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty-bound not to authorise his further detention and release the accused.
Constitution of India
| Provisions | Rights of Arrested Person |
| Article 22(1) | Right to be informed the grounds of arrest |
| Article 22(1) | Right to consult legal practitioner of his choice |
| Article 22(2) | Right to be produced before Magistrate |
| Article 22(2) | No detention beyond 24 hours. |
Code of Criminal Procedure
| Provisions | Rights of Arrested Person |
| Section 41B (c) | Right to be informed his friend or relative(Section 41B ) |
| Section 41D | Right to meet an advocate of his choice |
| Section 49 | Right not to unnecessary handcuffed |
| Section 50 (1) | Person arrested to be informed of grounds of arrest |
| Section 50 (2) | Person arrested to be informed about right to bail |
| Section 54 | Right to be medically examined |
| Section 56 | Right to be produced before Magistrate without delay |
| Section 57 | No detention beyond 24 hours |
Leading Cases
| Leading Cases | Guidelines |
| Joginder Kumar vs State Of U.P (1994) | (1) An arrested person being held in custody is entitled if he so requests to have one friend, relative or other people who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
(2) The police officer shall inform the arrested person when he is brought to the police station of this right. (3) An entry shall be required to be made in the diary as to who was informed of the arrest. |
| D.K.Basu vs. State of West Bengal | (1) Relative or friend must be informed
(2) Medical Examination every 48 hours during his detention in custody (3) Meeting with his lawyer |
Constitution of India
There are following rights of an arrested person under the Constitution of India –
(1) Right to be informed the grounds of arrest – According to Article 22(1) of Constitution of India no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest.
| Article 22(1) of Const. | Arrest with or without warrant |
| Section 50 of Cr.P.C. | Arrest without warrant |
| Section 55 of Cr.P.C. | Arrest without warrant by subordinate officer |
| Section 75 of Cr.P.C. | Arrest during execution of warrant |
Uttar Pradesh (J) 2013
Question – When a Magistrate arrest a person without warrant, is he required to inform the person arrested of the grounds of such arrest? If so under which provision of Criminal Procedure Code? Explain.
Answer – R.V. Kelkar – According to R.V.Kelkar –
A magistrate is authorized to arrest under section 44. The right to be informed of the grounds of arrest is recognised by sections 50,55 and 75 of Cr.P.C. If the arrest is made without warrant under section 44 the case is neither covered by sections 50,55 and 75 nor any other provisions of Cr.P.C. But this lacuna can be ratified by Article 22 of the Constitution. This Article deals with right of the arrest person to be informed ground of arrest and this right is available against every person including Magistrate.
According to my opinion – Section 50 says “Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.” Under the category of ‘other person’. Magistrate will come. Section 46 also says…. In making an arrest the police officer or another person. Mode of arrest is the same for all. These laws have been enacted to establish a just, fair and reasonable procedure. So these sections must be liberally interpreted. Judges are also bound to arrest as per law mentioned under section 46 of Cr.P.C.
(2) Right to consult a legal practitioner of his choice- According to Article 22(1) arrested person shall not be denied the right to consult, and to be defended by, a legal practitioner of his choice.
| Constitution (Article 22) | Arrested person shall not be denied the right to consult, and to be defended by, a legal practitioner of his choice. |
| D.K.Basu Case | The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. |
| Section 41D of Cr.P.C | When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation |
(3) Right to be produced before Magistrate- According to Article 22(2) every person who is arrested and detained in custody shall be produced before the nearest magistrate.
| Article 22(2) | Arrest in any circumstances either with or without warrant |
| Section 56 of Cr.P.C. | Arrest without warrant |
| Section 76 of Cr.P.C. | Arrest in the execution of warrant |
(4) No detention beyond 24 hours. According to Article 22(2) arrested person shall not be detained in custody beyond 24 hours period without the authority of a magistrate.
Arnesh Kumar v. State of Bihar(2014)
An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57 Cr.P.C. to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey.
| Article 22(2) | Arrest in any circumstances either with or without warrant |
| Section 57 of Cr.P.C. | Arrest without warrant |
| Section 76 of Cr.P.C. | Arrest in execution of warrant |
Code of Criminal Procedure
(1) Right to be informed his friend or relative(Section 41B ) – According to section 41B every police officer while making an arrest shall inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest. It was also observed in D.K.Basu Case (1996).
(2) Right to meet an advocate of his choice (Section 41D) – According to section 41D when any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation. It was also observed in D.K.Basu Case (1996).
(3) No handcuffing without reasonable grounds –According to section 49 of Cr.P.C. the person arrested shall not be subjected to more restraint than is necessary to prevent his escape. Arrested person shall not be handcuffed without reasonable grounds. In the case of Prem Shankar Shuklavs. Delhi Administration (1980) Supreme Court observed, “Handcuffing is prima facie inhuman and, therefore, unreasonable, is over-harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict ‘irons’ are to resort to zoological strategies repugnant to Art. 21.” If any police officer knowingly handcuffing, he will be liable under section 220 of IPC.
(4)Person arrested to be informed of grounds of arrest– According to section 50 (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.
(5)Person arrested to be informed about right to bail –
According to section 50(2) where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.
(6) Right to be medically examined section 54-When any person is arrested, he shall be examined by a medical officer in the service of Central or State Government.
(7) Right to be produced before Magistrate without delay- According to section 56 a police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.
(8)No detention beyond 24 hours- No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.
(8) The right to free legal services –In the case of Khatri and Others vs.State Of Bihar &Ors (19 December, 1980) Supreme Court held that the right to free legal services is clearly an essential ingredient of just fair and reasonable procedure and it is implicit in the guarantee of article 21 and the State is under a constitutional mandate to provide a lawyer to an indigent arrested person.
LL.B. DU Question 6(a) – 2017)
Discuss the procedure and power of the police to investigate cognizable cases.
Uttar Pradesh (J) 2013
Discuss briefly the distinction between the procedure of investigation by a police officer in cognizable and non-cognizable offences.
Procedure for Investigation
For the purpose of arrest and investigation offences have been divided into two parts namely (1) Cognizable offence, and (2) Non-cognizable offence. In cognizable cases, person can be arrested and investigation can be started without order or warrant of Magistrate. In the case of non-cognizable cases neither person can be arrested (except 42) and nor investigation can be started without order or warrant of Magistrate. There are following differences between both-
Procedure of Investigation
| Cognizable offence | Non-cognizable offence | |
| Registration of Information | If information is given regarding commission of cognizable offence, generally police officer is bound to register FIR without preliminary inquiry. Here informant is not sent to Magistrate. | When information is given to an officer in charge of a police station of the commission of a non-cognizable offence, he shall enter the substance of the information in a prescribed book and refer the informant to the Magistrate. |
| Sending of Report | According to Section 157, Officer in charge of Police Station shall forthwith send a report of the FIR to a Magistrate empowered to take cognizance of such offence upon a police report. | Here investigation starts on the direction of Magistrate so there is no such provisions for sending of report |
| Initiation of Investigation | Generally investigation starts after lodging an FIR under section 154. But FIR in all cases is not necessary. If Officer in charge of police station has reason to believe the commission of offence he can start investigation even without FIR. | According to Section 155(2) investigation in non-cognizable cases starts only after the order of Magistrate. |
| Power to investigate | According to section 156 (1) any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case. | According to section 155(2), no police officer shall investigate a non-cognizable case without the order of a Magistrate having the power to try such case or commit the case for trial. |
| Arrest | Police have the power to investigate as well as arrest without. | According to section 155(3) any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. |
| Investigation within 24 hours | If investigation is not completed within 24 hours then procedure mention in section167 must be followed. | Here there is no such specific procedure. |
Uttar Pradesh (J) 1992
Question-What are the provisions under Cr.P.C. for the investigation when it is not completed within 24 hours?
Answer- According to section 57 person arrested without warrant cannot be detained beyond 24 hours without the special order of Magistrate under section 167. 24 hours have been allowed so that investigation in non-serious offences can be completed at level of police station. If it could not be completed within 24 hours and further detention of the arrested person is necessary, the recourse of section 167 has to be taken. Section 167 deals procedure when investigation cannot be completed in twenty-four hours. There are following procedure mentioned under section 167-
(1) Investigation not completed in 24 hours and grounds for believing that the accusation or information is well-founded – Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.[6]
(2) Police custody and Judicial custody and vice-versa for 15 days-
The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
(3) Judicial Custody for 90 or 60 Days –
(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period
exceeding—
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence.
State of Madhya Pradesh vs. Rustam (1995) (SC)
Facts- The accused was sent jail on Sept. 3, 1993. Challan was submitted on December 2, 1993. (Sept 1993- 30Days, Oct. 1993- 31Days and Nov 1993- 30Days).In this case counting of 90 and 60 days were involved.
Supreme Court held that clear 90 or 60 days must expire before the right begins. In computing, the period of 90 or 60 days on either side has to be excluded as required under 9 and 10 of the General Clauses Act. In this case, challan was submitted within 90 days so there was no question of granting bail by default.
(4) Bail- On the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail.
ShardulbhaiLakhmanbhai vs. State Of Gujarat (Gujarat High Court)
Whether an accused person has an absolute right to be released on bail under proviso (a) to Section 167 (2) of the Code of Criminal Procedure, 1973 even after submission of the police report/charge-sheet, if the charge-sheet has been submitted after the period prescribed in the said proviso?
In this case Gujarat High Court observed that compulsory bail under section 167 is available only during the investigation. Once charge-sheet is submitted investigation closed. So the accused does not have the right to be released on bail under proviso (a) to section 167 (2) once the investigation comes to an end by filing charge-sheet. An accused person must be ready to get bail.
The accused has absolute right to be released on bail under the proviso (a) to section 167 (2) of the Code for the default of the prosecution in not completing the investigation within time limit prescribed thereunder in the sense that he is entitled to be released on bail by showing that the investigation has not been completed or the charge-sheet has not been filed within the prescribed time limit, without anything more.
(5) Cancellation of Bail- There is no specific provisions for cancellation of bail under section 167. But it has been provided that bail granted under section 167 shall be deemed to be granted under Chapter XXXIII. So it can be cancelled under section 439 (2) of Cr.P.C.
Conclusion – In the case of Arnesh Kumar vs. State of Bihar Supreme Court observed that before a Magistrate authorises detention under Section 167 Cr.P.C., he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested are satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty-bound not to authorise his further detention and release the accused.
[1]Here ‘Other Person’ means all persons who are authorised to arrest under this Code.
[2]Ins. in 2009.
[3] Rule is that death cannot be caused during arrest. But there are two exceptions when in case of necessity death may be caused – (1) When offence is punishable by death sentence or (2) When offence is punishable by life imprisonment.
[4]Ins. in 2005.
[5] This judgment is available at:https://www.sci.gov.in/jonew/judis/14580.pdf (Last visited January 27, 2019).
[6]Article 22 of the Constitution of India, 1950.
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