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The Rights of the Accused- A Study on the Rights of the Arrested Person

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Table of Contents
Table of Cases Table of Statues Introduction Research Methodology Chapter 1: Chapter 2: Chapter 3: Conclusion Bibliography

Table of Cases
England: 1. Christie v. Leachinsky [1947] 1 All ER 567. India: 1. Ajit Kumar v. State of Assam 1976 CriLJ 1303. 2. Ashok v. State 1987 CriLJ 1750. 3. Bir Bhadra Pratap v. D. M. Azamgarh AIR 1959 All 384. 4. Citizens for Democracy v. State of Assam (1995) 3 SCC 743. 5. D. K. Basu v. State of West Bengal AIR 1997 SC 610. 6. D. P. Ghosh v. State of West Bengal (1972) 2 SCC 656. 7. Dwarkadas v. Ambalal Ganpatram 28 CWN 850. 8. Gauri Shankar v. State of Bihar AIR 1972 SC 711. 9. Gharban Ali v. Intelligence Officer 1996 CriLJ 2420. 10. Govind Prasad v. State of West Bengal 1975 CriLJ 1249. 11. In re Madhu Limaye AIR 1969 SC 1014. 12. Iqbal Kaur Kwatra v. Director General of Police 1996 CriLJ 2600. 13. Joginder Kumar v. State of Utter Pradesh AIR 1994 SC 1349. 14. Khatri (II) v. State of Bihar (1981) 1 SCC 627. 15. Manoj v. State of Madhya Pradesh (1999) 3 SCC 715. 16. Nabachandra Singh v. Manipur Administration AIR 1964 Mani 39.

17. Nandini Satpathy v. P. L. Dani AIR 1978 SC 1025. 18. Natverlal v. State of Gujarat 1983 CriLJ 1124. 19. Om Prakash Dwivedi v. State 1996 CriLJ 603. 20. Padam Dev v. State of Himachal Pradesh 1989 CriLJ 383. 21. Prabhunarayan v. State of Madhya Pradesh 1987 CriLJ 339. 22. Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526. 23. Rajani Kanta v. State of Orissa 1975 CriLJ 83. 24. Ram Narain Gupta v. Ravi Datt 1966 AWR 776. 25. Sharifbai v. Abdul Razak AIR 1961 Bom 42. 26. State v. Ram Autar AIR 1955 All 138. 27. State of Hyderabad v. Kankadu AIR 1954 Hyd 89. 28. State of Punjab v. Ajaib Singh AIR 1953 SC 10. 29. Sunil Batra v. Delhi Administration (1978) 4 SCC 494. 30. Sunil Gupta v. State of Madhya Pradesh (1990) 3 SCC 119. 31. Vikram v. State 1996 CriLJ 1536. 32. Vimal Kumar Sharma v. State of Uttar Pradesh 1995 CriLJ 2335.

Table of Statutes
1. The Code of Criminal Procedure, 1973. 2. The Indian Penal Code, 1860. 3. The Police Act, 1861.

Introduction
To strike the balance between the needs of law enforcement on the one hand and the

protection of the citizen from oppression and injustice at the hands of the law enforcement machinery on the other, is a perennial problem of Statecraft.[1]
The title of this paper is the rights of the accused. However, this subject is quite vast and involves many facets. It includes the rights of the accused at the time of arrest, at the time of search and seizure, during the process of trial and the like. When the researcher was faced with the task of selecting a specific aspect of the rights of the accused, she chose to concentrate on the rights of the arrested person. Thus, this paper shall focus on this specific aspect. The definition of arrest is a restraint of a mans person, obliging him to be obedient to the law.[2] Arrest means the total restraint and complete deprivation of liberty of a person by legal authority or at least, by apparent legal authority.[3] It has also been defined as to restrain or detain a person by lawful authority.[4] When one thinks of arrest, the picture that most often springs to ones mind, fostered by television and films of American origin, is that of a police officer reading out the Miranda rules to the arrested, informing him of his rights. Again, based on what one has seen in innumerable movie scenes, again, primarily of American origin, one knows by now that the arrested person has the right to remain silent, that he has the right to a lawyer and so on. Of course, the question that is relevant to us is whether these rights apply in India and more importantly, whether rights of an accused in themselves are a reality or whether they are, in fact, restricted merely to imagination.

It has been observed by the Supreme Court that the law of arrest is one of balancing the rights, liberties and privileges of the individual on one hand, and his duties, obligations and responsibilities on the other.[5] Arrest is also about balancing the rights of the individual with that of societys rights since a person is normally arrested for a crime that is usually defined as a wrong against society. The eternal question has always been the following: how much is too much? Are the police given the absolute authority to do as they like with the arrested person to ensure that justice is ultimately done or is it in order to render justice while ensuring that rights of the arrested are fully protected? In recent times, much attention has been focussed on the way the police treat arrested persons. In several instances, the necessity of arrest itself has been questioned. In this regard, the Third report of the National Police Commission has specified that arrest can be considered justified in the following cases: 1. The case involves a grave offence like murder, dacoity, robbery, rape, etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims 2. The accused is likely to abscond and evade the process of law 3. The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint 4. The accused is a habitual offender and unless kept in custody, he is likely to commit similar offences again.[6] Following such recommendations, there have also been several cases that have discussed in detail the rights of the arrested person and what the police can and cannot do. The most important of them all isD.

K. Basu v. State

of

West

Bengal[7], often

considered

as the encyclopaedia on the law of arrest. This case has laid down several important dos and donts of arrest. For e.g., the 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. The person arrested must also 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. Thus, this judgement has tried to ensure the very least of rights to the arrested. However, before, this paper can go into the recommendations of various committees on the subject matter, it is important to examine the law of the land that ensure rights to the arrested person. In order to do this, this paper must go into the provisions of the Code of Criminal Procedure[8] of India and determine which provisions ensure rights to the accused on arrest. This paper shall further endeavour to study the case law in relation to these provisions and try to determine the position of the Indian legal system with regard to rights of the arrested persons. Finally, this paper shall attempt to resolve whether these rights ensured to the arrested person exist merely in the letter of the law or are put truly in practice by the police.

Research Methodology

Aim and Objective: The aim of this paper is to examine the rights of the accused within the framework of the Cr.P.C. It is the objective of this paper to study the rights of the accused on arrest as ensured by the Cr.P.C. Scope and Focus: As the title of this paper is the rights of the accused, the scope of this paper would be quite vast, as it would encompass every right of the accused during the pre-trial and post-trial procedure. This paper is focussed on a study of the rights of the accused with respect to the arrest of the accused. This has been further narrowed down to a study of some specific sections of the Cr.P.C, namely: 1. Section 49, that specifies that no unnecessary restraint can be imposed on the arrested person, 2. Section 50, that requires the police to inform the arrested of the reasons for arrest and whether the arrested person is entitled to bail, and, 3. Section 57, which requires that the arrested must be produced before a Magistrate within 24 hours of his arrest. Research Questions: The questions that arise in the course of this study are: 1. What is meant by unnecessary restraint of the accused on arrest? 2. Must the grounds of arrest be informed to the arrested immediately? Is there any specific form of communication of the same? 3. What does the period of 24 hours from the time of arrest include? 4. What are the consequences of violating these rights of the arrested person? Chapterization: This paper has been divided into the following chapters: Chapter 1: deals with the concept of unnecessary restraint. Chapter 2: examines the requirement to inform the accused of the grounds of his arrest. Chapter 3: discusses the provision for producing the arrested before a Magistrate within 24 hours of his arrest. Sources of Data: This paper has utilized primary sources of information in the form of statutes and case law. Secondary sources of information have also been utilized, comprising of commentaries on the Cr.P.C. as well as articles on the law of arrest, mainly from the Internet. Method of Analysis: This paper has used a blend of descriptive as well as analytical forms of writing.

Mode of Citation: This paper has employed a uniform mode of citation throughout.

Chapter 1: Handcuffs a necessity?


Section 49 of the Cr.P.C. states that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape. Thus, this section relates to the manner in which the accused is treated after his arrest.[9] It has been contended that this section lays down the minimal amount of restraint required in order to prevent an arrested person from running away.[10] Of course, it goes without saying that in order to apply this provision and exercise reasonable restraint on the accused, he must first be arrested.[11] Once this has been done, the debate on this matter has more or less been restricted to the question of whether it is necessary to handcuff the arrested person and whether this would amount to unnecessary restraint. It has been opined that it is not necessary that a police officer, while arresting an accused, should immediately put handcuffs on the accused. The police would be justified in handcuffing the arrested person only under exceptional circumstances or if there were reasons to believe that the accused would attempt to escape after arrest.[12] The reason for such a provision appears that if police officers are authorized to handcuff all those arrested, they would in effect be given a blanket power to impose oppression on the arrested as the person so restrained would then be rendered helpless would be in a rather vulnerable state. In the landmark case of Sunil Batra v. Delhi Administration[13] the Supreme Court pronounced that fetters should be shunned as violative of human dignity and that the indiscriminate use of handcuffs is illegal. The Court also held that handcuffs are permissible only in cases where the person concerned has a credible tendency for violence and escape and when all other modes of restraint have not worked. This decision has influenced subsequent judgements on the use of handcuffs and has been heavily relied on. In Prem Shankar Shukla v. Delhi Administration[14], Justice Krishna Iyer held that to handcuff a person is to punish and humiliate the person. Handcuffs fetter the minimal freedom guaranteed under Article 19 of the Constitution of India and therefore this cannot be done. He also held that in order to be consistent with the Constitution, handcuffs must be regarded as the last resort and must not be imposed merely by way of routine or convenience. Unless there is a clear and present danger of the prisoner attempting to escape out of police control, such suspicion being based on the prisoners past record, handcuffs cannot be justified. The learned Judge also held that in the event that a police officer deems handcuffs necessary, he must note down the reasons for doing so. Justice Pathak, in his concurring judgement, found that even if a police officer is empowered to restrain a person by handcuffs, he must exercise such power with moderation and must not use it maliciously or arbitrarily. He further held that Section 49 of the Cr.P.C. embodies the core principle of controlling the power to impose restraint on the prisoner while in custody and if restraint must be used, it must used only to prevent the escape of the prisoner and no more. This discretion must applied depending on the facts and circumstances of each case. Thus, this case embodies the basic principle that unless absolutely necessary, handcuffs

must not be imposed on the arrested person and even if they are, there must be reasonable justification on record for doing so. In Prabhunarayan v. State of Madhya Pradesh[15] it was held that it is wrong to equate the question of custody or restraint with the handcuffing of the person concerned. Further, Section 49 of the Cr.P.C. lays down that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape. The Court also held that there is no provision that implies that unless a person is handcuffed, he is not entitled to be heard on the question of his release on bail. The most important principle laid down in this case was that an accused in a criminal trial is presumed to be innocent until proven guilty beyond reasonable doubt. Thus, this must be kept in mind and unnecessary harassment of citizens must be avoided. In the case of Sunil Gupta v. State of Madhya Pradesh[16] the Supreme Court held even in extreme circumstances that necessitate the escort party to bind the prisoners in fetters, the escort party must record the reasons for doing so in writing and intimate the court so that the court may either approve or disapprove this action and issue necessary directions. In Citizens

for Democracy v. State of Assam[17], it was found that the relevant

considerations for putting a prisoner in fetters are the character, antecedents and propensities of the prisoner. The Court also held that while the police are under a public duty to prevent the escape of prisoners and provide them with safe custody, at the same time they must not infract the rights guaranteed to the prisoners under the Constitution under Articles 14, 19 and 21. Thus, using fetters just on whims and fancies is not permissible. Hence, it seems a well-established law in India that the use of handcuffs by the police authorities is prohibited unless absolutely unavoidable. Even when they do use handcuffs, the reasons for doing so must recorded in writing. However, while this may be a safeguard against arbitrary action, the researcher is doubtful whether this will actually curb the instances of handcuffing, as it appears fairly convenient for the police officer to record a credible sounding reason if he so desires. Perhaps, instead of merely mandating reasons for handcuffs, the level of accountability of the police should be increased. Another instance of unnecessary restraint is where the arrested persons are beaten or subjected to other forms of torture. For example, before the hearing of a case against a police officer, the complainant and his witnesses were arrested and then beaten up thoroughly, despite the fact that they did not evade or attempt to evade their arrest. The Court held the arrest to be dishonest and fraudulent.[18] It is therefore clear that the Courts of this country have recognized that arrested persons have the right to be treated with dignity. Thus, any violation of this provision is punishable under Section 220 of the Indian Penal Code. It is also punishable under Section 29 of the Police Act, as it becomes necessary to consider whether a police officer acting in a manner suggestive of exceeding his powers, was in fact aware that what he was doing was violative of the law.[19]

Chapter 2: A need to know Why?

When a person is arrested, the most obvious question that will arise in his mind is Why? After a while, once the initial shock of the arrest subsides, the foremost question will be How can I get out?. Thus, Section 50 of the Cr.P.C. specifically provides that when a police officer arrests a person without a warrant, he must forthwith communicate to him the full particulars of the offence for which he is arrested or other ground for arrest. This Section also provides that when a police officer arrests any person not accused of a non-bailable offence without a warrant, he shall inform the person so arrested of his entitlement to be released on bail so that he may arrange for bail and for sureties, if required, on his behalf. Thus, under this Section the arresting officer is bound to inform the arrested person the grounds for his arrest, including the full details of the offence for which he has been arrested and whether or not he is entitled to bail. A corollary to this principle is that if a subordinate officer is deputed by a senior officer to arrest a person, then before making the arrest, he shall notify the person to be arrested the substance of the written order given by the senior police officer specifying the offence or other cause for which the arrest is to be made.[20] If an arrest is made without complying with these requirements, then the arrest will be deemed illegal and will make the arresting officer liable to all remedies that are available in the case of an illegal arrest.[21] It is also important to note that this Section is in conformity with Article 22(1) of the Constitution, which provides that no person on arrest shall be detained without being informed of the grounds for such arrest, as soon as possible. In re Madhu Limaye[22], the Supreme Court held that the requirements of Article 22(1) are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the minds of the arresting authorities. They also held that these provisions are necessary so that the arrested person knows what exactly the accusation against him is so that he may consult a legal practitioner and be defended by him. Thus, it has been said that this provision embodies the fundamental safeguard for the personal liberty of the arrested person.[23] There are similar provisions in the Constitutions of the United States of America as well as in the Japanese Constitution. In England, whenever an arrest is made without a warrant, the arrested person has a right to be informed not only that he is being arrested but also of the grounds for the arrest.[24] It would be useful to cite the case of Christie v. Leachinsky[25] where the House of Lords held that an arrest without a warrant can be justified, either by a policeman or by a private person, only if it is an arrest on a charge which is made known to the person arrested unless the circumstances are such that the person arrested must know the substance of the alleged offence or where he forcibly resists arrest. Thus, this principle of law where the arrested person has the right to be informed of the grounds for his arrest appears to be well established and hence, merits considerable consideration. In Vikram v. State[26] the Allahabad High Court held that the arresting officer is supposed to record in the police papers the particulars and grounds of arrest of a person and is also supposed to mention whether he has informed the same to the arrested person. The information to be given to the arrested person should be such that he must know the reason and fact leading to his arrest. The Court also held that while it is difficult to prescribe a particular form in which such information must be communicated to the arrested person,

the bare facts leading to his arrest must be given to him. He must also know the date, time and place of the alleged offence. The Court held that this is a Constitutional safeguard and hence, the arrested person is well within his rights to point out whether such provisions have been violated. Further, as has been mentioned earlier, communication of the grounds of arrest is mandatory. Without knowing why he has been arrested, the concerned person will not be able to take necessary steps for freeing himself. The case of Govind Prasad v. State of West

Bengal[27] held that the provisions of Section 50 of the Cr.P.C. are material and cannot be
overlooked as it brings the law in conformity with Article 22(1) of the Constitution. The Court further held that this Section confers a valuable right to the arrested person and nonconformity with its mandatory provisions would lead to non-conformity with the procedure established by law. Ashok v. State[28] upheld this case wherein, the Madhya Pradesh High Court held that the provisions of Section 50 are in conformity with Article 22(1) and noncompliance with the mandatory provisions of the Code amounts to non-compliance with the procedure established by law and thus, renders the arrest and detention of the person concerned illegal. It has also been held in several cases that where a person is arrested during the commission of the offence, then it is not necessary to communicate to him the grounds of his arrest as it appears reasonable to assume that in such circumstances the arrested person will be well aware of the reasons for his arrest. This was held in Om Prakash Dwivedi v. State.[29] Here the Allahabad High Court held that it is important that the person concerned must be fully aware of the reasons for his detention. However, if a person is apprehended at the spot while committing the crime it must be supposed that he knows the reasons for his detention. Thus, in these cases the failure of the police authorities to inform him of the reasons for his arrest will not affect the legality of such arrest and hence, the arrest cannot be challenged on the grounds of violation of Article 22 or Section 50 of the Cr. P.C. The question that arises now is what period of time can be considered as soon? Must the grounds of arrest be communicated immediately after arrest or must they be communicated as soon as may be practicable? In D. P. Ghosh v. State of West Bengal[30] the Supreme Court held that while the object of communicating the grounds of arrest is to enable the concerned person to make a representation against the arrest, communicating the grounds of arrest as soon as may be must be interpreted in the correct context. The Court held that the grounds of arrest must be conveyed as early as practicable and without avoidable delay. In Vimal Kumar Sharma v. State of Uttar Pradesh[31] the High Court held that the words as soon as may be do not mean that the grounds of arrest must be communicated immediately at the time of arrest. They should be brought to the knowledge of the arrested person as soon as possible. However, the researcher believes that the grounds of arrest must be informed to the person at the time of arrest itself. If it is left open to the arresting authorities to communicate the grounds whenever they find the time to, as the tone of these judgements lead the researcher to believe, then it opens the doors to exercise of discretionary powers. This may result in a situation where the arrested person is forced to live in ignorance of his offence and hence, is deprived of a reasonable opportunity to clarify any mistake that may have been made. Another question that arises is what is meant by communication of the grounds of arrest? Must it be in writing or is oral communication sufficient? Section 50(1) of the Cr.P.C. does

not specify that the grounds of arrest need to be brought to the notice of the arrested person in writing.[32] Thus, this leads the researcher to believe that as long as the grounds of arrest are communicated, be it oral or in writing, it is sufficient, based on the conjecture that the emphasis is on communication. As long as it can be proved that the arrested person is aware of the particulars of the offence for which he has been arrested, any form of communication should be sufficient. However, it was held in Ajit Kumar v.State of Assam[33] that where any communication about the offence is made orally by the police officer to the person arrested and the kind of communication is unknown to the extent of whether the full particulars of the offence were told to the arrested or only the concerned Section was related to him, then under these circumstances, the arrest made by the police officer is illegal if the oral communication is not explained. Another aspect that must be kept in mind with regard to communication of the grounds of arrest is that the communication must be made in a language understood by the arrested.[34] The researcher believes this to be an essential pre-requisite to communication of the grounds of arrest. If the arrested person very simply does not understand what is being communicated to him, then he will not be aware of his rights and hence, this will not result in compliance of Section 50(1). Section 50(2) specifies that the arresting authority have to inform the arrested person whether or not he has the right to bail. Non-compliance with this provision will again result in illegality of arrest. InPadam Dev v. State of Himachal Pradesh[35] the Court held that where the police had obtained no warrant for the arrest of the accused and at the time of arrest, did not inform him of his right to bail, such arrest is illegal. The researcher believes that this provision has to be observed strictly so that it can be ensured that the arrested person can avail of bail, if he is so permitted. It is true that such compliance may result in habitual criminals taking advantage of this provision and thus, continuing to break laws. However, it would be far worse to allow an innocent man to surrender helplessly to the arresting authorities without even the bare knowledge of his rights. Hence, we have seen that the Courts have insisted on strict compliance with the provisions of Section 50 and the various facets of this provision have been examined. It becomes clear that if a police officer violates any part of these provisions then, he in fact violates the Constitution itself. Thus, such omission to inform the arrested person of the reasons for his arrest amounts not merely to non-compliance with law but, more seriously, non-compliance with the bedrock of our legal system, the Constitution.

Chapter 3: 24 hours Deadline or Guideline?


One of the most important rights of an arrested person is that he be produced before a Magistrate within twenty-four hours of the arrest. This is laid down in Section 57 of the Cr.P.C. which states that no police officer shall detain in custody a person arrested without warrant for a longer period that 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 168, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrates Court. Therefore, when a person is arrested, he must be produced before a Magistrate within twenty-four hours of the arrest. The Magistrate can pass an order of remand under Section

167 of the Cr.P.C. for his detention. However, this cannot exceed a term of fifteen days. He can also be produced before a Magistrate who has the authority to try the case and hence, can remand the person into custody for a term more than fifteen days but less than sixty days. It must also be noted that as in the case of Section 50, Section 57 is also in conformity with Article 22(2).[36] While it may seem superfluous to have the same provisions in the Constitution as well as in the Cr.P.C., Dr. B. R. Ambedkar stated that by introducing this provision in the Constitution, there would be a limitation upon the authority of the Parliament as well as the Provincial Legislatures not to abrogate the rights guaranteed under this provision.[37] Thus, by rendering this provision in the nature of a fundamental right, very strict compliance with the provisions of this Section is mandated as a constitutional right. If the arresting officer considers that the investigation can be completed within twenty-four hours, then he may keep the arrested person in custody until the investigation is so completed. However, if the investigation cannot be completed within twenty-four hours, then he must produce the arrested before the Magistrate immediately.[38] This principle has been upheld in the case of Nabachandra Singhv. Manipur Administration.[39] One may wonder why such a provision has been incorporated into the Cr.P.C. There are varying theories regarding the object of this Section. It has been observed that the intention of the Legislature was that an accused person should be brought before a Magistrate competent to try or commit the case to Sessions with as little delay as possible.[40] It has also been said that on a perusal of this Section along with Section 167, it becomes clear that the Legislature did not think it necessary to detain the accused in every case for the purpose of facilitating investigation and that the law does not favour detention in police custody, except in special cases.[41] It is the objective of this provision to enable the arrested person to make a representation before a Magistrate.[42] In Dwarkadas v.Ambalal Ganpatram[43] the Court held that the precautions laid down in this Section are designed to ensure that within twenty-four hours, some Magistrate will have seisin of what is going on and some knowledge of the nature of the charges against the accused, however, incomplete the information may be. Another viewpoint is that the right to be brought before a Magistrate within twenty-four hours of arrest has been created so that arrest and detention are not carried out with the purpose of extracting confessions or compelling information by means of duress or terror and that police stations are not used as proxies for prisons.[44] It was held in State of

Punjab v. Ajaib Singh[45] that arrests without warrants require more protection than those
with warrants. As a result, the provision that the arrested person should be brought before a Magistrate within twenty-four hours is particularly desirable because it ensures the immediate application of a judicial mind to the legal authority of the person making the arrest and legality of the arrest made by him. The researcher is of the opinion that this provision is very important. By mandating the production of the accused before a Magistrate, the basic rights of the accused such as the right against unnecessary restraint, the right to know the grounds of arrest as well as the right to bail have been facilitated. Therefore, it becomes possible to determine whether the arrest itself was valid and legal. Moreover, if the accused is kept in police custody for more than twenty-four hours, then the danger of the accused being subject to the vagaries and possible excesses of the police

increases and the accused may be pressurized into saying something that he did not intend to. One of the oft asked questions in relation to this Section is what constitutes twenty-fours? At what point does the clock start ticking? In Gharban Ali v. Intelligence Officer[46], the Bombay High Court held that mere taking into custody for the purpose of enquiry does not amount to arrest and that the time of twenty-four hours must be calculated from the time of formal arrest. On a reading of this judgement, the researcher doubts whether such an interpretation is in keeping with the spirit of the Cr.P.C. section that clearly aims at minimal curtailment of liberty. If the police officer is given the freedom to compute the twenty-four hours from the time of formal arrest then, the researcher believes that the scope for using this Section to his advantage is very wide. The police officer may deem that the formal arrest of the accused has happened only after hours of interrogation and of keeping the accused confined within the limits of the police station. If arrest is understood as a curtailment of the accused persons liberty, would this also not amount to arrest? Thus, the researcher believes that the 24-hour clock should start from time the police curtails the accuseds liberty. This contention has been supported in Iqbal Kaur Kwatra v. Director

General of Police[47] where the Andhra Pradesh High Court held that a person in custody
cannot be detained without producing him before the Magistrate under the pretext that no actual arrest has taken place. Another question that arises is whether the twenty-four hour period includes the time taken to travel to the Magistrate or is it strictly the time in police custody? The most popular opinion appears to be that the time taken to travel to the Magistrate should not be counted in the twenty-four hours. However, the Magistrate must take care to ensure that the time taken to travel is reasonable, keeping in mind the distance and other local conditions.[48] In the case of State of Hyderabad v. Kankadu[49] the police officer sent the accused to the Magistrate within twenty-four hours of his arrest but the Magistrate was on leave. Thus, the police officer was directed to send the accused to the District Magistrates Court and hence, more than twenty-four hours elapsed before the accused could be produced before the District Magistrate. The Court in this case held that the police officer had complied with the provisions of the Section and the delay caused was due to no fault of his and thus, an extension of time was permitted. Further, in Manoj v. State of Madhya Pradesh[50] the Supreme Court found that the only time permitted to be excluded from the period of twenty-four hours is the time necessary for going from the place of arrest to the Court of the Magistrate. Nevertheless, in most cases it has been laid down that the time frame of twenty-four has to be complied with strictly. In State v. Ram Autar[51], the Court laid down that this twentyfour hour time limit des not empower the police to keep an arrested person in custody a minute longer than is necessary, for the purposes of investigation. The Court also held that it does not give the police officer an absolute right to keep a person in custody till twentyfour hours. This principle was upheld in Rajani Kanta v. State of Orissa[52] where the Orissa High Court held that the twenty-four hours prescribed in Section 57 is the outer most limit beyond which the arrested person cannot be detained in police custody. Another interesting point, often contentious, with respect to this Section is that the twentyfour hours limit in police custody is applicable only for one continuous stretch. That is, the total number of hours that an arrested person has been detained cannot be added up to

twenty-four hours and therefore, bring him under the purview of this Section.[53] Thus, if the accused has been arrested on prior occasions and detained for period totalling twentyfour hours, then he cannot claim his right under Article 22(2) or Section 57 during any fresh arrest as he has to have spent twenty-four hours at a single stretch in the custody of the police before doing so. As has been mentioned above, strict compliance with the provisions of this Section is required. Failure to comply will result in wrongful detention of the accused and the police officer is liable under Section 340 of the Indian Penal Code.[54] The accused is also entitled to move a writ of habeas corpus directing his release. In the case of Sharifbai v. Abdul

Razak[55] the High Court held that the police officer who fails to produce the arrested
person before a Magistrate within twenty-four hours is guilty of wrongful detention of the person whom he has arrested. The Court also held that once the arrested person is produced before the Magistrate within twenty-four hours and the Magistrate, after applying his mind remands him to detention, then the detention of the arrested person after the order of remand by the Magistrate is no longer detention by the police officer himself and that he is merely carrying our the orders of the Magistrate. In Khatri (II) v. State of Bihar[56] the Supreme Court clearly laid down that the provision in Article 22(2) inhibiting detention without remand is very healthy as it enables the Magistrates to keep check over the police investigation and that it is necessary that the Magistrates enforce this provision. Wherever it is found disobeyed, the Judiciary should come down heavily on the police. Thus, after having examined the different provisions that guarantee different rights to the accused, it emerges that these rights cannot be abrogated by the police officers and that if they do happen to violate any of these rights, they are not only committing a crime under the Indian Penal Code but are also violating fundamental rights guaranteed by the Indian Constitution. Hence, there is no place for laxity on the part of the police force in ensuring that the arrested persons avail of their rights.

Conclusion
This paper has examined three provisions of the Cr.P.C. and the related case law in detail. Having done so, it may appear that the law of the land is very clear the rights of the accused, especially the arrested person, must be protected. The final question that must be asked at this point is, is this a reality? It is generally believed that in spite of the various safeguards in the Cr.P.C. as well as the Constitution, the power of arrest given to the police is being misused till this day.[57] It is also believed that the police often use their position of power to threaten the arrested persons and take advantage of their office to extort money. There have also been innumerable reports on custodial violence that lead many to believe that deprivation of basic rights of the arrested persons has become commonplace nowadays. While it can be said that the police must do all they can to curb law breakers and that, these incidences must be understood in the context of the times and stress under which the police work, it cannot be argued that arrested persons are not entitled to the minimal of rights simply because they

have allegedly broken the law and are therefore arrested. Arrest or not, an accused person is still a human being entitled to fundamental rights. The Law Commission of India, in its 177th Report, has acknowledged the fact that the law of arrest in itself is a balancing act between the rights of the individual and the rights of the society. According to the same Report, after the D. K. Basu judgement, the abuse of power by the police has decreased drastically. However, after a study conducted by the National Human Rights Commission, the Law Commission found that the number of arrests for petty offences is more than those for serious offences. Also, in a revolutionary move, the Commission recommended that no arrests should be made for what are now classified as bailable offences. Instead, only a summons ought to be issued for appearance of the accused in Court. Further the Commission also suggested that arrests be made only where it is necessary in order to infuse confidence among the terror stricken victims. The Commission also approved of the recommendations made by the National Police Commission, as mentioned earlier. Another proposal was that no person should be arrested for the mere purpose of questioning as such arrest would amount to unlawful detention. Thus, it appears that the Commission would rather that arrests should be avoided as far as possible. The Mallimath Committee in its Report on the reforms in the Criminal Justice System has stated that the accused has the right to know the rights given to him under law and how to enforce such rights.[58] There have also been criticisms that the police fail to inform the persons arrested of the charge against them and hence, let the arrested persons flounder in custody, in complete ignorance of their alleged crimes. This has been attributed to the Colonial nature of our Criminal Justice System where the duty of arrest was thrust upon the Indian officers while the Britishers drew up the charge against the accused.[59] Thus, it is entirely possible that the English origins of the Indian Criminal Justice system may have resulted unwittingly in the rights of the arrested persons falling through the cracks. Having examined these provisions and also the recommendations of various committees, it seems to the researcher that in the final analysis, it is the duty of the police to protect the rights of society. It must be remembered that this society includes all people, including the arrested. Thus, it is still the polices duty to protect the rights of the arrested. Hence, in light of the discussed provisions, a police officer must make sure that handcuffs are not used unnecessarily, that the accused is not harassed needlessly, that the arrested person is made aware of the grounds of his arrest, informed whether he is entitled to bail and of course, produced before a Magistrate within twenty-four hours of his arrest. While these are not the sum total of the rights available to the arrested accused, these are the stepping-stones and the basic rights he is entitled to. If a police officer does not ensure that these rights are meticulously upheld and protect the interests of the accused, who else can fill his shoes?

Bibliography
Articles: Internet:

1. Anonymous, Recommendations of the Mallimath Committee on reforms of Criminal Justice 2. Rajeev Journals: 1. G. Raghuraman, Law Relating to Arrests: Reforms in the Offing, (2001) 1 Comp L J (Journal) 12. Books: 1. Batuk Lal, The Code of Criminal Procedure, Orient Publishing Co., New Delhi, 1999. 2. D. D. Basu, Criminal Procedure Code, 1973, Ashoka Law House, New Delhi, 2001. 3. Justice K. D. Shahi, Princeps Commentary on the Code of Criminal Procedure, 1973, Delhi Law House, Delhi, 2000. 4. M. R. Mallick, B. B. Mitra on the Code of Criminal Procedure, 1973, Kamal Law House, Calcutta, 1987. 5. P. Ramanatha Aiyar, Code of Criminal Procedure, Modern Publishers (India), Lucknow, 1999. 6. R. V. Kelkar, Criminal Procedure, Eastern Book Co., Lucknow, 1998. 7. Ratanlal and Dhirajlal, The Code of Criminal Procedure, Wadhwa and Co., New Delhi, 1998. 8. S. C. Sarkar, The Law of Criminal Procedure, S. C. Sarkar & Sons (P) Ltd., Calcutta, 1975. 9. Shoorvir Tyagi, The Code of Criminal Procedure, 1973, Central Law Agency, Allahabad, 1994. Miscellaneous: 1. L. B. Curzon, Dictionary of Law, Pitman Publishing, London, 1997. 2. P. Ramanatha Aiyar, The Law Lexicon, Wadhwa and Co., Nagpur, 1987. 3. The Constitution of India, 1950. 4. 177th Law Commission Report, Consultation Paper on the Law relating to Arrest, at (visited on 16th July, 2003)<http://lawcommissionofindia.nic.in/reports/177rptp2.pdf>. [1] Nandini Satpathy v. P. L. Dani AIR 1978 SC 1025. [2] P. Ramanatha Aiyar, The Law Lexcicon, Wadhwa and Co., Nagpur, 1987, p. 85. [3] R. V. Kelkar, Criminal Procedure, Eastern Book Co., Lucknow, 1998, p. 53. [4] L. B. Curzon, Dictionary of Law, Pitman Publishing, London, 1997, p. 24. [5] Joginder Kumar v. State of Utter Pradesh AIR 1994 SC 1349. [6] G. Raghuraman, Law Relating to Arrests: Reforms in the Offing, (2001) 1 Comp L J (Journal) 12. [7] AIR 1997 SC 610. [8] For the sake of convenience, the Criminal Procedure Code shall be referred to as the Cr.P.C. hereafter. System, Dhavan, The Law at of (visited Arrest, at on (visited on 16th July 16th July, 2003)<http://www.pucl.org/Topics/Law/2003/malimath-recommendations.htm>. 2003)<http://www.hinduonnet.com/thehindu/2001/02/23/stories/05232523.htm>.

[9] D. D. Basu, Criminal Procedure Code, 1973, Ashoka Law House, New Delhi, 2001, p. 131. [10] Ram Narain Gupta v. Ravi Datt 1966 AWR 776 c.f. Batuk Lal, The Code of Criminal

Procedure, Orient Publishing Co., New Delhi, 1999, p. 141. [11] S. C. Sarkar, The Law of Criminal Procedure, S. C. Sarkar & Sons (P) Ltd., Calcutta, 1975,
p. 53. [12] Justice K. D. Shahi, Princeps Commentary on the Code of Criminal Procedure, 1973, Delhi Law House, Delhi, 2000, p. 199. [13] (1978) 4 SCC 494. [14] (1980) 3 SCC 526. [15] 1987 CriLJ 339. [16] (1990) 3 SCC 119. [17] (1995) 3 SCC 743. [18] M. R. Mallick, B. B. Mitra on the Code of Criminal Procedure, 1973, Kamal Law House, Calcutta, 1987, p. 198. [19] Supra., note 12. [20] Supra., note 3, p. 59. [21] Supra., note 11. [22] AIR 1969 SC 1014. [23] P. Ramanatha Aiyar, Code of Criminal Procedure, Modern Publishers (India), Lucknow, 1999, p. 262. [24] Id. [25] [1947] 1 All ER 567. [26] 1996 CriLJ 1536. [27] 1975 CriLJ 1249. [28] 1987 CriLJ 1750. [29] 1996 CriLJ 603. [30] (1972) 2 SCC 656. [31] 1995 CriLJ 2335. [32] This has been upheld in Natverlal v. State of Gujarat 1983 CriLJ 1124 where the Gujarat High Court held that compliance with Section 50(1) need not be in writing. [33] 1976 CriLJ 1303. See also Gauri Shankar v. State of Bihar AIR 1972 SC 711. Here the Supreme Court held that if the facts and circumstances of the case indicate that the arrested person had knowledge that he was kept in custody in relation with certain criminal charges, then he cannot claim that he was detained without information on the grounds of his detention. [34] Supra., note 3, p. 60.

[35] 1989 CriLJ 383. [36] The only difference that needs to be noted in this case is that Article 22(2) applies to arrests made with as well as without a warrant. [37] In re Madhu Limaye AIR 1969 SC 1014 (1018). [38] Batuk Lal, The Code of Criminal Procedure, Orient Publishing Co., New Delhi, 1999, p. 150. [39] AIR 1964 Mani 39. [40] Ratanlal and Dhirajlal, The Code of Criminal Procedure, Wadhwa and Co., New Delhi, 1998, p. 65. [41] Supra., note 18, p. 210. [42] Shoorvir Tyagi, The Code of Criminal Procedure, 1973, Central Law Agency, Allahabad, 1994, p. 56. [43] 28 CWN 850. The same has been held in Bir Bhadra Pratap v. D. M. Azamgarh AIR 1959 All 384. Here the Court found that the purpose of this provision was to ensure that the arrest and detention of the accused is prima facie, justified. [44] Supra., note 3, p. 61. [45] AIR 1953 SC 10. [46] 1996 CriLJ 2420. [47] 1996 CriLJ 2600. [48] Supra., note 18, p. 211. [49] AIR 1954 Hyd 89. [50] (1999) 3 SCC 715. [51] AIR 1955 All 138. [52] 1975 CriLJ 83. [53] Supra., note 23, p. 284. [54] Supra., note 9, p. 143. [55] AIR 1961 Bom 42. [56] (1981) 1 SCC 627. [57] 177th Law Commission Report, Consultation Paper on the Law relating to Arrest, at (visited on 16th July, 2003)<http://lawcommissionofindia.nic.in/reports/177rptp2.pdf>. [58] Anonymous, Recommendations of the Mallimath Committee on reforms of Criminal Justice [59] Rajeev System, Dhavan, The at Law of (visited Arrest, at on (visited on 16th July, 16th July, 2003)<http://www.pucl.org/Topics/Law/2003/malimath-recommendations.htm>. 2003)<http://www.hinduonnet.com/thehindu/2001/02/23/stories/05232523.htm>.