Arrest

What is Arrest?

As per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge.” Arrest, within the legal framework of India, is a pivotal aspect of law enforcement and criminal justice.

Arrest as defined in legislations.

Despite not being explicitly defined in procedural or substantive Acts, the process of arrest is governed by Section 46 of the CrPC (Section 43 BNSS), which outlines the method of effecting an arrest. According to Blacklaw, arrest is an ‘act by officer indicating his intention to detain or take person into custody and thereby subject that person to the actual control and will of the officer’. In addition to the Code, arrest can also be made under special statutes such as Section 43B of the Unlawful Activities and Prevention Act, Section 19 of the Prevention of Money Laundering Act, etc. The arrest is governed by the process provided within the special statutes. Arrest is also mentioned in the Narcotic Drugs and Psychotropic Substances Act, 1985 where it is stated that: According to Section 52 of the Act:

1. Every person arrested and article seized under a warrant shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.
2. Every person arrested and article seized under sub-section (2) of section 41, section 42, section 43, or section 44 shall be forwarded without unnecessary delay to the officer-in-charge of the nearest police station, or the officer empowered under section 53. Section 55 of the Act states that:
   1. An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.

Legal Provisions relating to Arrest.

Section 41 of the CrPC (S.35 of BNSS) deals with when a police may arrest a person without warrant. Section 41A (35 1(a)) gives the power to the police to arrest someone without a warrant from the magistrate if it fills the prerequisites mentioned in the same. The following is the model form of a S.41A CrPC notice.

As provided under Section 41(b)(ii) of CrPC, the purpose of arrest is to prevent the individual from further committing the alleged offense, facilitating investigation, and preventing the tampering of evidence.

Wrongful Arrest

The definition of wrongful arrest and the procedure for compensation on finding of an arrest to be wrongful is stated in S.358 of the CrPC and S.399 of the BNSS. It is stated here that anybody who assaults or uses criminal force against another person after that person gives serious, abrupt provocation faces punishment of either simple imprisonment for up to one month, a fine of up to two hundred rupees, or both.

Formal Arrest

A formal arrest is one that is made according to S. 46(1) of the CrPC (S.43 of the BNSS).

As per CrPC, the prerequisites of a formal arrest are held to be:

1) In making an arrest the police officer or other person 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:

1[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.

[(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.

Arrest Memo

The arrest memo, a document completed by police upon arrest, safeguards against illegal detentions. It details the arrest time, location, and reason.

The arrest memo, a document completed by police upon arrest, safeguards against illegal detentions. It details the arrest time, location, and reason.

Arrest as defined in case laws.

In Joginder Kumar v. State of UP, the court held that ‘no arrest can be made because it is lawful for the police officer to do so. The existence of the power of arrest is one thing; the justification for its existence is another. The police officer must be able to justify the arrest apart from his power to do so.’ Several landmark judgements have helped shape the guidelines for arrest.

D.K. Basu v. State of West Bengal (1997) AIR 1997 SC 610

Supreme Court of India has laid down 11 specific requirements and procedures that the police and other agencies have to follow for the arrest, detention and interrogation of any person. These are:

1. Police arresting and interrogating suspects should wear “accurate, visible and clear” identification and name tags, and details of interrogating police officers should be recorded in a register.

2. A memo of arrest must be prepared at the time of arrest. This should: Have the time and date of arrest. be attested by at least one witness who may either be a family member of the person arrested or a respectable person of the locality where the arrest was made. be counter-signed by the person arrested.

3. The person arrested, detained or being interrogated has a right to have a relative, friend or well-wisher informed as soon as practicable, of the arrest and the place of detention or custody. If the person to be informed has signed the arrest memo as a witness this is not required.

4. Where the friend or relative of the person arrested lives outside the district, the time and place of arrest and venue of custody must be notified by police within 8 to 12 hours after arrest. This should be done by a telegram through the District Legal Aid Authority and the concerned police station.

5. The person arrested should be told of the right to have someone informed of the arrest, as soon as the arrest or detention is made.

6. An entry must be made in the diary at the place of detention about the arrest, the name of the person informed and the name and particulars of the police officers in whose custody the person arrested is.

7. The person being arrested can request a physical examination at the time of arrest. Minor and major injuries if any should be recorded. The "Inspection Memo" should be signed by the person arrested as well as the arresting police officer. A copy of this memo must be given to the person arrested.

8. The person arrested must have a medical examination by a qualified doctor every 48 hours during detention. This should be done by a doctor who is on the panel, which must be constituted by the Director of Health Services of every State.

9. Copies of all documents including the arrest memo have to be sent to the Area Magistrate (laqa Magistrate) for his record.

10. The person arrested has a right to meet a lawyer during the interrogation, although not for the whole time.

11. There should be a police control room in every District and State headquarters where information regarding the arrest and the place of custody of the person arrested must be sent by the arresting officer.

This must be done within 12 hours of the arrest. The control room should prominently display the information on a notice board. These requirements were issued to the Director General of Police and the Home Secretary of every State.

They were obliged to circulate the requirements to every police station under their charge. Every police station in the country had to display these guidelines prominently. The judgment also encouraged that the requirements be broadcast through radio and television and pamphlets in local languages be distributed to spread awareness. These requirements are in addition to other rights and rules, such as:

• The right to be informed at the time of arrest of the offence for which the person is being arrested.

• The right to be presented before a magistrate within 24 hours of the arrest.

• The right not to be ill-treated or tortured during arrest or in custody.

• Confessions made in police custody cannot be used as evidence against the accused.

• A boy under 15 years of age and women cannot be called to the police station only for questioning.

Arnesh Kumar v. State of Bihar (2014) 8 SCC 273

his case laid down the guidelines to stop the menace of unnecessary arrests. his ruling emphasized that arrests should be an exception, particularly in cases where the potential punishment is less than seven years of imprisonment. The guidelines provided in this judgement urged the police to assess the necessity of arrest under Section 41 of the Criminal Procedure Code. Ensuring adherence to Supreme Court principles is incumbent upon investigating officers. The guidelines were the Procedure when a police officer decides that arrest has to be made in an offense which is cognizable and punishable with imprisonment up to 7 years.

Amandeep Singh Johar Vs Govt. of NCT of Delhi

This landmark case was passed by Hon'ble High Court of Delhi, it is directed that as far as working of Section 41A is concerned, the following procedure shall be strictly followed by the police in Assam:-

(i) Police officers should be mandatorily required to issue notices under Section 41A Cr.P.C (in the prescribed format) formally to be served in the manner and in accordance with the terms of the provisions contained in Chapter-VI of the Criminal Procedure Code. Model form of notice under 41A Cr.P.C and his acknowledgement is enclosed herewith as Annexure-A.

(ii) The concerned suspect or accused person will necessarily comply with the terms of the notice under section 41A Cr.P.C and make himself available at the requisite time and place.

(iii) If the accused is unable to present himself at the given time for any valid and justifiable reason.,the accused should in writing immediately, intimate the investigating officer and seek an alternative time within a reasonable period, which should ideally not exceed a period of firer working days, from the date on which he were required to attend, unless he is unable to show justifiable cause for such non- attendance.

(iv) Unless it is detrimental to the investigation, the police officer may permit such rescheduling, however, only for justifiable causes to be recorded in the Case Diary. Should the Investigating Officer believe that such extension is being sought to to cause delay to the Investigation or the suspect or accused person is being evasive by seeking time, (subject to intimation to the O/C Police Station/SDPO of the concerned Police Station), deny such request and mandatorily require the said person to attend.

(v) A suspect or accused on formally receiving a notice under section 41A Cr.P.C and appearing before the concerned officer for investigation or interrogation at the police station, may request the concerned 10 for an acknowledgement.

(vi) In the event the suspect or accused is directed to appear at a place other than the police station (sa envisaged under Section 41A (1) Cr.P.C), the suspect will be at liberty to get the acknowledgement receipt attested by an independent witness if available at the spot in addition to getting the same attested by the concerned investigating officer himself.

(vii) A duly indexed booklet containing serially numbered notices in triplicate carbon copy format should be issued by the O/C of the Police Station to the Investigating Officer. The Notice should necessarily contain the following details:

(a) Serial Number

(b) Case Number

(c) Date and time of appearanc

(d) Consequences in the event of failure to comply

(e) Acknowledgement slip

(vii) The Investigating Officer shall follow the following procedure

(a) The original is served on the accused suspect

(b) A carbon copy (on white paper) is mained by the 10 in his or her case diary, which can be shared to to the concerned Magistrate as and when required,

(c) Used booklets are to be deposited by the 10 with the OC of the Police Station who shall win the The completion of the investigation and submission of the final report under section 173 of the CrPC

(d) The Police department shall frame appropriate rules for the preservation and destruction of such booklets.

Satender Kumar Antil v. Central Bureau of Investigation &Anr. (Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021) (2021) 10 SCC 773.

While stressing the need for procedural compliance, the Hon’ble Supreme Court has once again turned its focus to the directions given in its earlier judgment viz. Arnesh Kumar v. State of Bihar. Besides, the Hon’ble Supreme Court has now cited the procedure prescribed in Amandeep Singh Johar case with approval in its judgment. It has also directed the States to issue a Standing Order in this regard for compliance by the field officers: The pith and substance of the directions issued by the Hon’ble Apex Court is thus extracted below:

1. As Section 41 of the Code mandates the police officer to record his reasons in writing while making the arrest, he is duty-bound to record the reasons for arrest in writing. Similarly, the police officer shall record reasons when he/she chooses not to arrest. There is no requirement of the aforesaid procedure when the offense alleged is more than seven years, among other reasons.

2. The consequence of non-compliance with Section 41 shall certainly inure to the benefit of the person suspected of the offense. Resultantly, while considering the application for enlargement on bail, courts will have to satisfy themselves on the due compliance of this provision. Any non-compliance would entitle the accused to a grant of bail.

3. Strict compliance with Sections 41, 41A and 41B is made mandatory.

4. This Court has clearly interpreted Section 41(1)(b)(i) and (ii) inter alia holding that notwithstanding the existence of a reason to believe qua a police officer, the satisfaction for the need to arrest shall also be present. Thus, sub-clause (l)(b)(i) of Section 41 has to be read along with sub-clause (ii) and therefore both the elements of 'reason to believe' and ‘satisfaction qua an arrest’ are mandated and accordingly are to be recorded by the police officer.

5. We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41 A. We express our hope that the Investigating Agencies would keep in mind the law laid down in Arnesh Kumar (Supra), the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance.

6. Any dereliction on the part of police officers has to be brought to the notice of the higher authorities by the court followed by appropriate action.

Prabir Purkayastha v. State

The Supreme Court, in this latest landmark case, distinguished between the 'reasons for arrest' and 'grounds of arrest' and further held that there was a significant difference between the two It explained that 'reasons of arrest' are formal and could apply generally to any person arrested of an offence. Meanwhile,'grounds of arrest' are personal and specific to the person arrested.

Even in such circumstances, Section 167(1) of the Code, which provides for production of the arrestee before the Magistrate is applicable. Thus, in Directorate of Enforcement v. Deepak Mahajan, the Court held that “…mere production of an arrestee before a competent Magistrate by an authorised officer or an officer empowered to arrest on a reasonable belief that the arrestee "has been guilty of an offence punishable" under the provisions of the special Act is sufficient for the Magistrate to take that person into his custody on his being satisfied of the three preliminary conditions, namely (1) the arresting officer is legally competent to make the arrest; (2) that the particulars of the offence or the accusation for which the person is arrested or other grounds for such arrest do exist and are well-founded; and (3) that the provisions of the special Act in regard to the arrest are applicable.”

Arrest as Defined in Other Official Documents

State Guidelines for Arrest

The following states and union territories have issued standing orders for arrest to comply with the judgements discussed before such as DK Basu.

Assam

Delhi

Meghalaya

Maharashtra

Karnataka

Kerala

Odisha

West Bengal

Telangana

Jharkhand

Andaman and Nicobar

National Police Commission Guidelines on Vexatious Arrest

S. 129 is Vexatious entry, search, arrest etc. by Police Officers which discusses what entails vexatious arrest and also mentions the penalty for the same. S.130 is regarding the various penalties for vexatious delays in forwarding a person arrested, including fines and imprisonment. These guidelines are to restrict powers given to the police force and protect citizens' fundamental rights.

Legal Provisions Relating to Arrest

Types of Arrest

Arrests in the Indian legal system can be broadly categorized as either with or without a warrant. This classification is based on the nature of the offence, categorized as either 'cognizable' or 'non-cognizable.'

Private Arrest

Section 43 of CrPC provides for ‘private arrest’, in which a person is arrested by another person. But it is allowed only in case a person commits a non-bailable offense in another person’s presence or is apprehended of committing a crime against a person or his property and when he is not given the correct address of his residence or it is unknown. But before arresting a person there should be sufficient apprehension and justifiable cause to arrest that particular person.

A.   Immediate Handover to Police

Upon making a private arrest, Section 43(1) mandates that the private person should promptly hand over the arrested individual to a police officer. If the arrest falls under the ambit of Section 41, which deals with arrests without a warrant, the police officer must re-arrest the individual according to Section 43(2).

B.Limitations on Detention

Section 43(3) provides a crucial safeguard, stating that if there is sufficient reason to believe that the arrested person has committed a non-cognizable offense and refuses to provide accurate information, the individual shall be dealt with in accordance with Section 42. Importantly, the arrested person must be released if there is no sufficient reason to believe that they have committed an offense.

House Arrest

Section 167(2) allows the Magistrate to ‘authorise the detention of the accused in such custody as such Magistrate thinks fit’. This includes House Arrest, which, while not defined in the CrPC, has been understood as a form of Custody which curtails the liberty of an individual, as held in Gautam Navlakha. A court may order for house arrest based on the facts of each case. Relevant considerations to be taken are include ‘age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody and the ability to enforce the terms of the house arrest’, per Gautam Navlakha judgement.

Arrest of a Woman

The arrest of women in the Indian legal system is subject to specific provisions that recognize the need for sensitivity and protection of their rights. These provisions, embedded in the Criminal Procedure Code and other legal frameworks, aim to ensure that the arrest process is conducted with due consideration for the dignity and safety of women.

A.   Female Officer Requirement

According to Section 46(1) of the Code, a crucial stipulation mandates that a female officer should be involved in the arrest of a female individual.[5] This provision acknowledges the unique vulnerabilities and privacy concerns associated with the arrest of women, emphasizing the importance of having a female law enforcement officer present during the arrest process.

B.  Time Restrictions

Section 6 of the Criminal Amendment Act of 2005 led to the addition of ‘Section 46(4)’(S.43(5) of the BNSS) to the Code, which prescribes specific time constraints, prohibiting the arrest of women after sunset and before sunrise, except in exceptional cases. Even in exceptional circumstances, female officers are required to make the arrest, and their actions must be authorized by a judicial magistrate.

Arrest with Warrant

Arrests with a warrant, a more prevalent scenario, empower the police to detain individuals who are unwilling to appear before the court upon receiving a summons. A warrant for arrest is required by the police to arrest in non-cognizable cases, as defined under Section 2(l) of the CrPC. These are offences which are not very grave in nature. Examples include defamation, cheating etc. A warrant may be bailable or non bailable. A bailable warrant permits the person arrested to provide surety to secure release from custody, as under Section 71 of CrPC. These contain directions from the Court over the amount of sureties. On the other hand, a non-bailable warrant does not contain directions for grant of bail, which becomes a matter of trial.

FORM No. 2 WARRRANT OF ARREST

Arrest without Warrant

Arrests without a warrant, a narrower domain, have the potential to infringe on an individual's constitutional rights and require careful consideration. This can be done for cognizable offences, which are defined under Section 2(c) of the CrPC as an offence where ‘a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant’. Offences such as murder, robbery etc fall under the category of cognizable offence.

Formal Arrest

A formal arrest is made according to S. 46(1) of the CrPC (S.43 of the BNSS).

As per CrPC, the prerequisites of a formal arrest are held to be:

1) In making an arrest the police officer or other person making the same shall touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action:

1Provided 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.

(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.

Technical Arrest

A technical arrest is also known as a physical arrest wherein one needs to taken into custody either technically or physically.

International Experience

International Convention for the Protection of All Persons from Enforced Disappearance

This resolution passed by the UN in 2010 in order to prevent enforced disappearance of people and prevent arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment

This was adopted by the UN in 1988 to ensure the dignity and rights of those imprisoned or detained.

Police and Criminal Evidence Act, UK

In the  UK,  the  Police and  Criminal  Evidence  Act (PACE  Act 1984) and Criminal Justice Act 2003 specify the rights of the arrested person.  Moreover,  through various court decisions,  the scope and concept of safeguards are also established.  The key assurance is that the arrested person is Informed about  the  reason for arrest by  the arresting police officer.

Section  28(1)  of the  PACE  Act states that where a person is arrested,  the arrest is not lawful unless the person arrested is informed that he is under arrest as soon as it is practicable after his arrest. It is the right of the arrested person to know the grounds for being arrested and it is the legal duty of the police to inform the person that he is under arrest and grounds for his arrest.

Appearance of Arrest in Official Databases

Crime in India 2022 by National Crime Records Bureau

Per the report of 2022, A total of 32,28,322 persons were arrested under 35,61,379 cases of IPC crimes. A total of 43,67,588 persons were charge-sheeted, 10,55,181 persons were convicted, 9,81,194 persons were acquitted and 1,52,787 persons were discharged. On the other hand, A total of 21,61,911 persons were arrested under 22,63,567 cases of Special and Local Laws crimes. A total of 27,04,985 persons were charge-sheeted, 14,16,858 persons were convicted, 3,69,789 persons were acquitted and 57,187 persons were discharged. The State/UT reporting highest Charge-sheeting Rate under IPC Crimes are Kerala (96.0%), Puducherry (91.3%) and West Bengal (90.6%). Amongst the 19 metropolitan cities covered, cities reporting highest Charge-sheeting Rate under IPC Crimes are Kochi (95.9%), Patna (89.9%) and Kozhikode (89.4%).

National Crime Records Bureau Data

Crime and Criminal Tracking Network and Systems Portal

Crime and Criminal Tracking Network and Systems (CCTNS) was a project started in 2009 to provide for greater transparency in the policing system. Every state has a CCTNS portal wherein information relating to FIR status, missing persons, etc can be found. The data on arrested persons can be accessed online for certain States, as provided below. To conduct a search for an arrested person, the required information includes name of person, district where arrest was made, date range of arrest, police station etc. The CCTNS Portal of West Bengal mandatorily requires the name of the arrested person along with the name of their spouse. On the other hand, Gujrat merely requires the date range of arrest. Once such search is made, the data relating to the arrested person may be accessed.

To take the case of Kerala, this data includes -

1. Name of accused;
2. Name of accused’s father;
3. Chargesheeted offenses;
4. Address of accused;
5. Age and gender;
6. Name of police officer making the arrest;
7. Name of court before which the arrestee is produced;
8. Place of arrest;
9. Date and time of arrest;

On the other hand, the Chattisgarh portal does not provide the address of the arrested person and the father’s name. The sex and age is also not provided. Likewise, the Maharashtra portal does not provide the name of father, but provides for the gender, sex as well as the nationality of the arrested person. Thus, there is state based variation over the data provided relating to the arrested person.

Chattisgarh CCTNS

The portal for Chattisgarh can be accessed at https://search.cgpolice.gov.in/CCTNS_Arrested_Person_List/

Chattisgarh CCTNS

Chattisgarh CCTNS

Gujarat CCTNS

The portal for Gujarat can be accessed at https://gujhome.gujarat.gov.in/portal/. Illustratively, the database can be accessed in the following manner. A comprehensive guide has been provided at https://gujhome.gujarat.gov.in/portal/images/eGujCop/UserGuideline_En.pdf.

Step 1 - Open the Link

Step 2 - Register

Step 3 - Search for the Arrested Person

Kerala CCTNS

The portal is accessible at https://keralapolice.gov.in/page/crime-and-criminal-tracking-network-systems-cctns.

Kerala CCTNS

Kerala CCTNS Data

Maharashtra CCTNS

Portal can be accessed at https://citizen.mahapolice.gov.in/Citizen/MH/index.aspx

Maharashtra CCTNS

Maharashtra CCTNS Data

Madhya Pradesh CCTNS

Portal can be accessed at https://citizen.mppolice.gov.in/Custom_Arrested_Person.aspx

Madhya Pradesh CCTNS

Odisha CCTNS

Can be accessed at https://citizenportal-op.gov.in/citizen/ViewArrestedPersons.aspx?REPORT_NAME=SnHSdUdXR0M%3d

Odisha CCTNS

Tamil Nadu CCTNS

Portal is available at https://eservices.tnpolice.gov.in/CCTNSNICSDC/CitizenArrestedPersonHome?2.

Tamil Nadu CCTNS

West Bengal

Portal can be accessed at https://policesohaiyota.wbpolice.gov.in/login.aspx

West Bengal CCTNS

Research that engages with Arrest

Arrest Discretion Behaviour of the Police in India: A Socio-Legal Study

The 2009 criminal law amendment sought to reduce the number of arrests made, however, the data shows negligible reduction in the 5 years post 2009. This study highlights various factors influencing arrests, and categorizes them as organizational, situational, subcultural, environmental and individual. An interplay of legal and extra legal factors such as, for instance, the personal character of the officer, a belief that the criminal system is ineffectual and arrest is the only punishment, etc ‘create a complex maze in which the arrest decision behavior is processed and ultimately taken’.

Status of Policing in India Report 2023: Surveillance & the Question of Privacy

The question of surveillance and privacy has been dealt with by highlighting surveillance practices adopted by the State such as CCTV monitoring, internet tracking etc. The findings with respect to CCTV shows that there is arguably no significant reduction in commission of cognizable offenses resulting from installation of cameras, although the cameras prove useful for detection of offenders post the offense has been committed. It further highlights that of all the cybercrime cases reported, most of them are under Section 65D of the IT Act, relating to impersonation. The data over arrest shows high variation between chargesheeting and conviction rate of different states. For instance, per the NCBR data of 2021, of the 6887 persons arrested in UP, 45.5% were chargesheeted and 83.2% were convicted. In contrast, 1395 people were arrested in Gujrat, of which 58.4 % were chargesheeted, however no one was convicted.

Status of Policing in India Report 2021: Policing in Conflict Affected Region

The study highlights police violence in states affected by conflict such as naxalism. A survey conducted in these states indicate that personnel and common people showed considerable support for the violent behavior of the police when against ‘protagonists of political violence’, ie, the naxalites and insurgents. On the other hand, there was a divide over personnel and common people over preventive detentions and other precautionary measures, with the personnel showing greater inclination towards the same. However, concerning the arrest of naxalite sympathizers and use of drone cameras for surveillance, there was again a shared agreement. Moreover, common people hold the perception that certain groups such as the poor and STs are more likely to be targeted by the police for naxalism charges. People in regions of Left Wing Extremism repose ‘higher trust in police than in insurgent regions’.

Counter Mapping Pandemic Policing: A Study of Sanctioned Violence in Madhya Pradesh

This report attempts to profile the arrests made during the pandemic and establish the existence of a ‘structural attitudes’ of policing which leads to marginalization. While no ‘direct evidence of discrimination’ is provided, the report raises the concern that criminalisation has deep effects over the economic status and well being of the families. This requires stringent constitutional safeguards and legislative reforms to curb the excessive power available to the state machinery. The report concludes by presenting recommendations such as decentering focus on prisons, moving towards decarceration and decriminalization, disaggregating data for arrested persons, and changing the culture of policing for low level offenses.

Challenges and Way Ahead

Several constitutional provisions and legal requirements safeguard the rights of the arrested individuals. Article 22 of the Indian Constitution emphasizes the right to be informed about the reason for arrest, consult a legal practitioner, and not be detained without being informed of the grounds for arrest. The following aspects illuminate the significance and nuances of the right to legal representation:

Right to Legal Representation

The Supreme Court has affirmed the right of an accused to consult a legal practitioner under Article 21 of the Constitution. This includes the right to effective legal representation, ensuring compliance with mandatory procedural requirements.

Procedural Mandates

Article 22(1) and constitutional principles were reinforced in the seminal case of DK Basu v. Union of India. The Supreme Court emphasized not only the right of the arrested person to be informed of the grounds of arrest but also their right to consult a legal practitioner. This procedural requirement ensures that individuals are not only aware of the charges against them but are also equipped with the means to navigate the legal complexities of their situation.

Magisterial Inquiry and Legal Aid

In the case of Gautam Navlakha v. State (NCT of Delhi), the Delhi High Court emphasized the necessity of a magisterial inquiry into whether the arrested person was informed about the grounds of arrest and whether they desired legal representation. The court rejected the mere cosmetic presence of a legal aid lawyer and stressed the importance of effective representation.

Related Terms

Confinement

Generally, custody is a larger set of which arrest is a small subset, and there can be custody without arrest but not arrest without custody. Thus, for example, in Niranjan Singh, Justice Krishna Iyer observed that ‘an accused can be in custody not merely when the police arrests him’.This is because a person can be in custody by submitting to the Court as well.

Arrest in Civil Law

A decree is passed by the court under the Code of Civil Procedure (hereinafter referred to as CPC) to decide the rights and liabilities of the persons in a matter of controversy. The person in whose favour a decree is passed is called decree-holder and against whom the decree is passed is judgement debtor. There are various ways under civil law by which a decree can be passed. One such way is “arrest and detention”.

This is covered in S.51 of the CPC which states that such a decree can be enforced while the mode of execution of a decree for arrest and detention is listed under Order XXI.

Custody in Remand and Pre- Remand

Police custody of an accused person if the investigation is not completed within 24 hours is called Remand. In remand to police custody the accused is in the physical custody of the police and is normally lodged in the lock up of the police station or lock up of any other investigating agency.In judicial custody the accused remains under the custody of the magistrate and is normally incarcerated in jail.

“Custody in pre-remand" is essentially jailed while waiting for their first court hearing. The court will then decide if there are enough reasons to keep them detained (remanded) until trial, or if they can be released on bail.

Custody

While the terms 'arrest' and 'custody' are often used interchangeably, a crucial legal distinction exists. An arrested person holds the right to seek bail, unlike someone under custody, who may not necessarily have such right. This distinction applies to specific contexts, for instance Sections 107 and 108 of the Customs Act. Therein, summons in respect of an enquiry may amount to custody but not to arrest, and such custody could subsequently materialize into arrest.

While the terms 'arrest' and 'custody' are often used interchangeably, a crucial legal distinction exists. An arrested person holds the right to seek bail, unlike someone under custody, who may not necessarily have such right. This distinction applies to specific contexts, for instance Sections 107 and 108 of the Customs Act. Therein, summons in respect of an enquiry may amount to custody but not to arrest, and such custody could subsequently materialize into arrest.

While the terms 'arrest' and 'custody' are often used interchangeably, a crucial legal distinction exists. An arrested person holds the right to seek bail, unlike someone under custody, who may not necessarily have such right. This distinction applies to specific contexts, for instance Sections 107 and 108 of the Customs Act. Therein, summons in respect of an enquiry may amount to custody but not to arrest, and such custody could subsequently materialize into arrest.

Apprehend

As per the Juvenile Justice Act, 2015, any minor who has committed a crime will be apprehended rather than detained or imprisoned.