SESSION 2022-23

SUBJECT

“………………………….”

PROJECT ON

“………….”

SUBMITTED UNDER SUPERVISION; SUBMITTED BY;

………………. ………………..

FACULTY OF LAW STUDENT OF SEMESTER

 JAGANNATH UNIVERSITY

DECLARATION

I declare that the project entitled “………….” is the outcome of my own work conducted under
the supervision of …………. at Jagannath University, Jaipur.

I further declare that to the best of my Knowledge the project does not contain any part of any
work, which has been submitted for the award of any degree either in this University or in
another University / Deemed University without proper citation

(Name of Student)
Dated: -

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CERTIFICATE OF THE SUPERVISOR

This is to certify that the research work entitled “……….” is the work done by (Name of
student) under my guidance and supervision for the Partial fulfillment of the requirement of
BA/BBA LLB degree at Jagannath University.

To the best of my Knowledge and belief the project:

1. embodies the work of the candidate himself;
2. has been duly completed; and
3. Is up to the standard both in respect of contents and language for being referred to the
examiner.

(Name of Faculty)
Faculty of Law
Supervisor

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ACKNOWLEDGEMENT

I would like to express profound gratitude to (Name of faculty), for his invaluable support,
encouragement, supervision and useful suggestions throughout this research work. His moral
support and continuous guidance enabled me to complete my work successfully. His intellectual
thrust and blessings motivated me to work rigorously on this study. In fact this study could not
have seen the light of the day if his contribution had not been available. It would be no
exaggeration to say that it is his unflinching faith and unquestioning support that has provided
the sustenance necessary to see it through to its present shape.

Among those who have sustained me over the years with their loyalty and friendship, I would
particularly mention my friends (name of friends) have always taken a special interest in my
work and unconditional support at each turn of the life.

I express my deep sincere gratitude towards my parents for their blessing, patience, and moral
support for this project.

(Name of Student)

TABLE OF CONTENTS

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DECLARATION.........................................................................................................................................2
CERTIFICATE OF THE SUPERVISOR....................................................................................................3
ACKNOWLEDGEMENT...........................................................................................................................4
TABLE OF CONTENTS............................................................................................................................5
1. TABLE OF CASES...................................................................................................................................6
2. INTRODUCTION...................................................................................................................................6
1.1 Section 41..........................................................................................................................................6
1.2 Section 42..........................................................................................................................................8
1.3 Section 43..........................................................................................................................................8
1.4 Practical aspects of sections 41 and 42, CrPC....................................................................................9
3. WIDER POWERS OF ARREST UNDER SECTION 151, CRPC..................................................................10
4. LARGE NUMBER OF PERSONS ARRESTED UNDER SECTIONS 107 TO 110, CRPC................................10
5. CONSTITUTIONAL PROTECTION.........................................................................................................10
6. MISUSE OF POWER OF ARREST..........................................................................................................11
7. BALANCING OF SOCIETAL INTERESTS AND PROTECTION OF RIGHTS OF THE ACCUSED....................11
8. GUIDELINES LAID DOWN BY THE SUPREME COURT..........................................................................12
9. NEED FOR PROVIDING STATUTORY SAFEGUARDS TO PREVENT ABUSE OF POWER OF ARREST........19
10. EMPIRICAL DATA COLLECTED ON THE RELEVANT ASPECTS OF THE LAW OF ARREST....................20
11. DATA FURNISHED BY VARIOUS STATES.........................................................................................21
10.1 UTTAR PRADESH............................................................................................................................21
10.2 HARYANA.......................................................................................................................................21
10.3 MAHARASHTRA.............................................................................................................................22
10.4 GUJARAT........................................................................................................................................23
10.5 BIHAR.............................................................................................................................................24
10.6 ORISSA..........................................................................................................................................24
10.7 KARNATAKA..................................................................................................................................24
12. CONCLUSION.................................................................................................................................25
13. BIBLOGRAPHY................................................................................................................................25
11.1 WEBSITES REFERRED.....................................................................................................................25
11.3 BOOKS REFERRED/ statutes/Articles/ research papers..................................................................25

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1. TABLE OF CASES

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2. INTRODUCTION

Chapter five of the Code of Criminal Procedure, 1973 deals with the arrest of persons. Section 41
is the main section providing for situations when Police may arrest without warrant. It reads as
follows:

1.1 Section 411. When police may arrest without warrant.-

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any
person-

a) who has been concerned in any cognizable offence, or against whom a reasonable
complaint has been made or credible information has been received, or a reasonable
suspicion exists, of his having been so concerned; or
b) who has in his possession without lawful excuse, the burden of proving which excuse
shall lie on such person, any implement of house-breaking; or
c) who has been proclaimed as an offender either under this Code or by order of the State
Government; or
d) 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) who obstructs a police officer while in the execution of his duty, or who has escaped, or
attempts to escape, from lawful custody; or
f) who is reasonably suspected of being a deserter from any of the Armed Forces of the
Union; or
g) 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

1
Chapter five of the Code of Criminal Procedure, 1973

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relating to extradition, or otherwise, liable to be apprehended or detained in custody in

India; or
h) who, being a released convict, commits a breach of any rule made under sub-section (5)
of section 356; or
i) for whose arrest any requisition, whether written or oral, has been received from another
police officer, provided that the requisition specified 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.

(2). Any officer in charge of a police station may, in like manner, arrest or cause to be arrested
any person, belonging to one or more of the categories of persons specified in section 109 or
section 110.”

1.2 Section 422 specifies yet another situation where a police officer can arrest a person.
According to this section if a person commits an offence in the presence of a police officer or
where he has been accused of committing a non-cognizable offence and refuses, on demand
being made by a police officer to give his name and residence or gives false name or residence,
such person may be arrested but such arrest shall be only for the limited purpose of ascertaining
his name and residence. After such ascertaining, he shall be released on executing a bond with or
without sureties, to appear before a magistrate if so required. In case the name and residence of
such person cannot be ascertained within 24 hours from the date of arrest or if such person fails
to execute a bond as required, he shall be forwarded to the nearest magistrate having jurisdiction.

1.3 Section 43 speaks of a situation where an arrest can be made by a private person and
the procedure to be followed on such arrest. Section 44 deals with arrest by a magistrate. Section
45 protects the members of the Armed Forces from being arrested under sections 41 to 44.
Section 46 sets out the manner in which the arrest should be made and section 47 enables the
police officer to enter a place if he has reason to believe that the person to be arrested has entered
into that place or is within that place. Section 48 empowers the police officers to persue the
offenders into any place in India beyond their jurisdiction. Section 49 3 however provides that

2
Code of Criminal Procedure, 1973
3
Code of Criminal Procedure, 1973

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“the person arrested shall not be subjected to more restraint than is necessary to prevent his
escape”. Section 504 (which corresponds to clause (1) of Article 22 of the Constitution) creates
an obligation upon the police officer to communicate to the person arrested full particulars of the
offence for which he is arrested or other grounds for such arrest forthwith. It also provides that
where a person is arrested for a bailable offence without a warrant, the police officer shall inform
the person arrested that he is entitled to be released on bail and that he may arrange for sureties
on his behalf. Section 51 provides for search of arrested person while section 52 empowers the
police officer to seize offensive weapons from the arrested person. Sections 53 and 54 provide
for medical examination of the arrested person at the request of the police officer or at the
request of the arrested person, as the case may be. Section 55 prescribes the procedure to be
followed when a police officer deputes his subordinate to arrest a person without warrant.
Section 56 (which corresponds to clause (2) of Article 22) of the Constitution, provides that the
person arrested shall not be kept in the custody of a police officer for a longer period than is
reasonable and that in any event such period shall not exceed 24 hours exclusive of the time
necessary for the journey from the place of arrest to the magistrate’s court. Of course if the
magistrate permits the police officer to keep such person in his custody, he can do so beyond the
period of 24 hours. Section 585 casts an obligation upon the officers in charge of police station to
report to the specified authorities of arrests made without warrant within their jurisdiction and of
the fact whether such persons have been admitted to bail or not. Section 59 6 says that no person
arrested by a police officer shall be discharged except on his own bond or bail or under the
special order of the magistrate. Section 60, which is the last section in the chapter, empowers the
person having the lawful custody to pursue and retake the arrested person if he escapes or is
rescued from his custody.

1.4 Practical aspects of sections 41 and 42, CrPC.

A reading of the above provisions and, in particular, of Sections 41 and 42 shows the width of
the power of arrest vested in police officers. Take for example, the ground in clause (b) of
Section 41. It empowers a police officer to arrest a person who is in possession of “any
implement of house breaking” and the burden is placed upon that person to satisfy that
possession of such implement is not without “lawful excuse”. What does an “implement of house
4
Code of Criminal Procedure, 1973
5
Code of Criminal Procedure, 1973
6
Code of Criminal Procedure, 1973

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breaking” mean? Any iron/steel rod or any implement used by way-side repairers of punctured
tyres can also be used for house breaking. Similarly, clause (d). Any person found in possession
of stolen property “and who may be reasonably suspected of having committed an offence with
reference to such thing.” What a wide discretion? Why, take clause (a) itself. The situations
covered by it are: (i) a person who is “concerned in any cognizable offence”, (ii), a person
against whom a reasonable complaint is made that he is “concerned in a cognizable offence”;
(iii) a person against whom “credible information” is received showing that he is “concerned in
any cognizable offence” and (iv) a person who is reasonably suspected of being “concerned in
any cognizable offence”. The generality of language and the consequent wide discretion vesting
in police officers is indeed enormous – and that has been the very source of abuse and misuse.
The qualifying words “reasonable”, “credible” and “reasonably” in the Section mean nothing in
practice. They have become redundant; in effect.

3. WIDER POWERS OF ARREST UNDER SECTION 151,

CRPC.

Added to these provisions are the preventive provisions in the Code of Criminal Procedure which
empower the police to arrest persons. Section 151 empowers a police officer to arrest any person,
without orders from a Magistrate and without warrant, “if it appears to such officer” that such
person is designing to commit a cognizable offence and that the commission of offence cannot
be prevented otherwise. We do not think it necessary to emphasise the width of the power. It
may be true that the satisfaction of the police officer contemplated by the expression “if it
appears to such officer” is not subjective but is objective but in India, police officers making a
wrongful arrest whether under section 41 or 151, are seldom proceeded against – much less
punished. There are too many risks involved in doing so.

4. LARGE NUMBER OF PERSONS ARRESTED UNDER

SECTIONS 107 TO 110, CRPC.

There is yet another category viz., sections 107 to 110 of the Code of Criminal Procedure. These
sections empower the Magistrate to call upon a person, in situations/circumstances stated therein,

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to execute a bond to keep peace or to be on good behaviour. These provisions do not empower a
police officer to arrest such persons. Yet, the fact remains (a fact borne out by the facts and
figures referred to hereinafter) that large number of persons are arrested under these provisions
as well. And we are speaking of vast discretion not in a civil service officer but in a member of
armed force though technically speaking, it is also a civil service.

5. CONSTITUTIONAL PROTECTION.

Clause (1) of Article 22 of the Constitution which is one of the fundamental rights in Part III,
declares that “no person who is arrested shall be detained in custody without having informed, as
soon as maybe, on the grounds for such arrest nor shall he be denied the right to consult and to
be defended by a legal practitioner of his choice.” Clause (2) of Article 22 says that every person
arrested and detained in custody shall be produced before the nearest magistrate within a period
of 24 hours of such arrest excluding of course the time necessary for the journey from the place
of arrest to the court of magistrate. The clause further declares that no such person shall be
detained in custody beyond the said period without the authority of a magistrate. Clause (3) of
Article 22 however provides that clauses (1) and (2) shall not apply to an enemy-alien or to a
person who has been arrested under any law providing for preventive detention.

6. MISUSE OF POWER OF ARREST.

Notwithstanding the safeguards contained in the Code of Criminal Procedure and the
Constitution referred to above, the fact remains that the power of arrest is wrongly and illegally
exercised in a large number of cases all over the country. Very often this power is utilized to
extort monies and other valuable property or at the instance of an enemy of the person arrested.
Even in case of civil disputes, this power is being resorted to on the basis of a false allegation
against a party to a civil dispute at the instance of his opponent. The vast discretion given by the
CrPC to arrest a person even in the case of a bailable offence (not only where the bailable
offence is cognizable but also where it is non-cognizable) and the further power to make
preventive arrests (e.g. under section 151 of the CrPC and the several city police enactments),

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clothe the police with extraordinary power which can easily be abused. Neither there is any in-
house mechanism in the police department to check such misuse or abuse nor does the complaint
of such misuse or abuse to higher police officers bear fruit except in some exceptional cases. We
must repeat that we are not dealing with the vast discretionary powers of a mere civil service
simpliciter, we are dealing with the vast discretionary powers of the members of a service which
is provided with firearms, which are becoming more and more sophisticated with each passing
day (which is technically called a civil service for the purposes of Service Jurisprudence) and
whose acts touch upon the liberty and freedom of the citizens of this country and not merely their
entitlements and properties. This is a civil service which is being increasingly militarized, no
doubt, to meet the emerging exigencies.

7. BALANCING OF SOCIETAL INTERESTS AND

PROTECTION OF RIGHTS OF THE ACCUSED.

We are not unaware that crime rate is going up in our country for various reasons which need not
be recounted here. Terrorism, drugs and organized crime have become so acute that special
measures have become necessary to fight them not only at the national level but also at the
international level. We also take note of the fact that quite a number of policemen risk their lives
in discharge of their duties and that they are specially targeted by the criminal and terrorist
gangs. We recognize that in certain situations e.g., like the one obtaining in Kashmir today, a
literal compliance with several legal and constitutional safeguards may not be practicable but we
must also take note of and provide for the generality of the situation all over the country and not
be deflected by certain specific, temporary situations. We must also take note of the fact that
very often it is the poor who suffer most at the hands of Police. Their poverty itself makes them
suspects. This was said, though from a different angle, by George Bernard Shaw. He said
“poverty is crime”. But nowadays, even middle classes and other well-to-do people, who do not
have access to political power-wielders, also are becoming targets of Police excesses. We
recognize that ensuring a balance between societal interest in peace and protection of the rights
of the accused is a difficult one but it has to be done. We also recognize the fundamental
significance of the Human Rights, which are implicit in Part III of our Constitution and of the

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necessity to preserve, protect and promote the Rule of Law which constitutes the bedrock of our
constitutional system.

8. GUIDELINES LAID DOWN BY THE SUPREME COURT.

The effort of the courts, and in particular of the Supreme Court over the last more than two
decades has been to circumscribe the vast discretionary power vested by law in Police by
imposing several safeguards and to regulate it by laying down numerous guidelines and by
subjecting the said power to several conditionalities. The effort throughout has been to prevent
its abuse while leaving it free to discharge the functions entrusted to the Police. While it is not
necessary to refer to all of them for the purpose of this working paper, it would be sufficient if
we refer to a few of them (which indeed reaffirm and recapitulate the directions and guidelines
contained in earlier decisions). In Joginder Kumar v. State of U.P. (AIR 1994 SC 1349), the
power of arrest and its exercise has been dealt with at length. It would be appropriate to refer to
certain perceptive observations in the judgment:

“The horizon of human rights is expanding. At the same time, the crime rate is also increasing.
Of late, this court has been receiving complaints about violation of human rights because of
indiscriminate arrests. How are we to strike a balance between the two?

A realistic approach should be made in this direction. The law of arrest is one of balancing
individual rights, liberties and privileges, on the one hand, and individual duties, obligations and
responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the
single individual and those of individuals collectively; of simply deciding what is wanted and
where to put the weight and the emphasis; of deciding which comes first – the criminal or
society, the law violator or the law abider; of meeting the challenge which Mr. Justice Cardozo
so forthrightly met when he wrestled with a similar task of balancing individual rights against
society’s rights and wisely held that the exclusion rule was bad law, that society came first, and
that the criminal should not go free because the constable blundered.

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The quality of a nation’s civilisation can be largely measured by the methods it uses in the
enforcement of criminal law.”

This court in Smt. Nandini Satpathy v. P.L. Dani7, quoting Lewis Mayers, stated:

“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.” The pendulum over the years has swung to the
right.

Again in para 21, at page 1033, it has been observed: “We have earlier spoken of the conflicting
claims requiring reconciliation. Speaking pragmatically, there exists a rivalry between societal
interest in effecting crime detection and constitutional rights which accused individuals possess.
Emphasis may shift, depending on circumstances, in balancing these interests as has been
happening in America. Since Miranda ((1966) 334 US 436) there has been retreat from stress on
protection of the accused and gravitation towards society’s interest in convicting law-breakers.
Currently, the trend in the American jurisdiction according to legal journals is that ‘respect for
(constitutional) principles is eroded when they leap their proper bounds to interfere with the
legitimate interests of society in enforcement of its laws 8….. Our constitutional perspective has,
therefore, to be relative and cannot afford to be absolutist, especially when torture technology,
crime escalation and other social variables affect the application of principles in producing
humane justice.”

The National Police Commission in its Third Report referring to the quality of arrests by the
Police in India mentioned power of arrest as one of the chief sources of corruption in the police.
The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or
unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the
jails. The said Commission in its Third Report at page 31 observed thus:

“It is obvious that a major portion of the arrests were connected with very minor prosecutions
and cannot, therefore, be regarded as quite necessary from the point of view of crime prevention.
Continued detention in jail of the persons so arrested has also meant avoidable expenditure on

7
AIR 1978 SC 1025 at page 1032
8
Couch v. United States (1972) 409 US 322, 336

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their maintenance. In the above period it was estimated that 43.2 per cent of the expenditure in
the connected jails was over such prisoners only who in the ultimate analysis need not have been
arrested at all9.”….

The Royal Commission suggested restrictions on the power of arrest on the basis of the
‘necessity of principle’. The two main objectives of this principle are that police can exercise
powers only in those cases in which it was genuinely necessary to enable them to execute their
duty to prevent the Commission of offences, to investigate crime. The Royal Commission was of
the view that such restrictions would diminish the use of arrest and produce more uniform use of
powers. The Royal Commission Report on Criminal Procedure – Sir Cyril Philips10, said:

“…. We recommend that detention upon arrest for an offence should continue only on one or
more of the following criteria;

a) the person’s unwillingness to identify himself so that a summons may be served upon
him;
b) the need to prevent the continuation or repetition of that offence;
c) the need to protect the arrested person himself or other persons or property;
d) the need to secure or preserve evidence of or relating to that offence or to obtain such
evidence from the suspect by questioning him; and
e) the likelihood of the person failing to appear at court to answer any charge made against
him.”

The Royal Commission in the above-said Report at page 46 also suggested:

“To help to reduce the use of arrest we would also propose the introduction here of a scheme that
is used in Ontario enabling a police officer to issue what is called an ‘appearance notice’. That
procedure can be used to obtain attendance at the police station without resorting to arrest
provided a power to arrest exists, for example to be finger-printed or to participate in an
identification parade. It could also be extended to attendance for interview at a time convenient
both to the suspect and to the police officer investigating the case….”

9
The figures given in the Report of the National Police Commission are more than two decades old.
Today, if anything, the position is worse.
10
at page 45

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In India, Third Report of the National Police Commission at page 32 also suggested:

“…An arrest during the investigation of a cognizable case maybe considered justified in one or
other of the following circumstances:

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 processes 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.

It would be desirable to insist through departmental instructions that a police officer making an
arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his
conformity to the specified guidelines….”

It would equally be relevant to quote para 24, which reads as follows:

“The above guidelines are merely the incidents of personal liberty guaranteed under the
Constitution of India. 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. The recommendations of the Police Commission merely reflect the constitutional
concomitants of the fundamental right to personal liberty and freedom. A person is not liable to
arrest merely on the suspicion of complicity in an offence. There must be some reasonable

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justification in the opinion of the officer effecting the arrest that such arrest is necessary and
justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to
person to attend the Station House and not to leave Station without permission would do.”

The ultimate directions given, contained in paras 26 to 29, read as follows:

“These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be
recognized and scrupulously protected. For effective enforcement of these fundamental rights,
we issue the following requirements:

1. An arrested person being held in custody is entitled, if he so requests to have one

friend relative or other person who is known to him or likely to take an interest in his
welfare 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. These protections from power must be held to flow from Articles 21 and 22(1)
and enforced strictly.

It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy
himself that these requirements have been complied with.

The above requirements shall be followed in all cases of arrest till legal provisions are made in
this behalf. These requirements shall be in addition to the rights of the arrested persons found in
the various Police Manuals.

These requirements are not exhaustive. The Directors General of Police of all the States in India
shall issue necessary instructions requiring due observance of these requirements. In addition,
departmental instruction shall also be issued that a police officer making an arrest should also
record in the case diary, the reasons for making the arrest.”

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The next decision which may be usefully referred to is D.K. Basu v. State of West Bengal 11. It
would be sufficient if we quote paras 36 to 40 which contain the final directions issued in the
said decision. They read as follows:

“We, therefore, consider it appropriate to issue the following requirements to be followed in all
cases of arrest or detention, till legal provisions are made in that behalf, as preventive measures:

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 be either 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 center 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

11
AIR 1997 SC 610

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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 concerned State or Union Territory,
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 Ilaqa 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 police board.

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.

The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need
to be strictly followed. These would apply with equal force to the other governmental agencies
also to which a reference has been made earlier.

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.

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The requirements mentioned above shall be forwarded to the Director General of Police and the
Home Secretary of every State/Union Territory and it shall be their obligation to circulate the
same to every police station under their charge and get the same notified at every police station
at a conspicuous place. It would also be useful and serve larger interest to broadcast the
requirements on the All India Radio besides being shown on the National Network of
Doordarshan and by publishing and distributing pamphlets in the local language containing these
requirements for information of the general public. Creating awareness about the rights of the
arrestee would in our opinion be a step in the right direction to combat the evil of custodial crime
and bring in transparency and accountability. It is hoped that these requirements would help to
curb, if not totally eliminate, the use of questionable methods during interrogation and
investigation leading to custodial commission of crimes.”

9. NEED FOR PROVIDING STATUTORY SAFEGUARDS TO

PREVENT ABUSE OF POWER OF ARREST.

Notwithstanding the above decisions – we may legitimately presume that the directions and
guidelines contained were duly published by respective Directors General of Police of all the
States and were brought to the notice of all the police officers – the complaints of abuse of power
of arrest still continue unabated. Several instances of such exercise have come to the notice of
each of us and to the notice of all responsible persons of the society. The Law Commission,
therefore, thought that something more needs to be done to prevent the abuse and misuse of the
power of arrest while at the same time not hurting the societal interest in peace and law and
order. Indeed, both the decisions referred to above say expressly that the directions and
guidelines issued/laid down therein are to be followed “till legal provisions are made in that
behalf.” It is, therefore, necessary to make appropriate legal provisions not only incorporating the
said guidelines/directions but also making such changes in law as may be necessary to prevent
abuse/misuse of the said power while at the same time ensuring that interest of the society in
maintenance of peace and law and order is not jeopardized.

10. EMPIRICAL DATA COLLECTED ON THE RELEVANT

ASPECTS OF THE LAW OF ARREST.

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But before we could think of any specific measures in that behalf, we thought it necessary to
obtain empirical data on the relevant aspects of the law of arrest so that it can form the basis for
devising the measures to be recommended by us. Accordingly, the Law Commission wrote a
letter dated 20.7.1999, addressed to the Chairperson of the National Human Rights Commission
stating that the Law Commission proposes to examine exhaustively the law relating to arrest and
to suggest to the Government and the Parliament appropriate changes required in the
aforementioned provisions and that to enable the Law Commission to arrive at an appropriate
conclusion, it must have relevant empirical data from all over the country. Accordingly, we
requested the NHRC, “to constitute a committee of high police officials (retired or working) who
shall select four districts in the country as case study and find out the number of arrests made by
the police in that district in a given year without warrant, the number of arrests which were made
without registering the crime, the number of cases in which the person arrested was released
without filing a chargesheet and the length of his detention, the number of cases in which
chargesheets were filed and the number of cases in which the prosecution resulted in
conviction.” It was further stated in the said letter that “it would also be necessary to categorise
the offences in connection with which the persons were arrested, the period of the detention in
police and in judicial custody, the time taken for concluding the prosecution against them and if
a person is kept in detention, the number of occasions on which he was not produced before the
court on the dates of hearing. It would help us if any other relevant or incidental details or data
which the committee may think relevant is also made available to us.” We stated that we would
welcome any suggestions, ideas and recommendations which such body may record on the
subject keeping in view the recommendations contained in the Police Commission Reports.

11. DATA FURNISHED BY VARIOUS STATES.

A brief reference to the data furnished by the various States would now be in order.

10.1 UTTAR PRADESH

According to the letter of Shri Hakim Singh, Headquarters, DGP (UP) dated 7.9.1999, the
relevant particulars for the State of UP for the year 1998 are to the following effect:

1. Total number of persons arrested (No. of persons 1,73,634 arrested under substantive
offences)

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2. Total number of persons who surrendered in 1,25,268 various courts (substantive

offences)
3. Total number of persons arrested under 4,79,404 preventive provisions of law
4. Out of it, total number of persons charge- 7,48,440 sheeted (substantive preventive)
5. Total number of persons dropped/released without 29,124 filing chargesheet
(substantive offences only)
6. How many persons ended in conviction – (Information not available).
7. Percentage of arrests made in relation to bailable 45.13% offences

From the above figures it appears that while the total number of persons arrested/surrendered is
around three lakhs, the number of persons arrested under “preventive provisions of law” is as
high as 4,79,404. Obviously, the preventive provisions mean the provisions like sections 151,
109 and 110 CrPC and similar other provisions in local police enactments, if any. Another
disturbing feature is the percentage of arrests made in relation to bailable offences. It is as high
as 45.13%.

10.2 HARYANA
In this State, Panchkula district was selected for study and data has been furnished in respect of
that district alone for the year 1998. According to the data furnished, the total number of arrests
during that year was 2,048. Out of this total number, 248 persons were arrested in connection
with crimes against persons, 232 for crimes against property, 160 for crimes against women, 218
in connection with accident cases, 89 for economic offences like cheating and fraud, 223 in
connection with other offences under IPC, 672 under the State Excise Act, 119 for electricity
theft and four persons under the Arms Act.

The letter dated 3.4.2000 furnishes slightly different figures but that does not appear to be very
material. The number of arrests in bailable cases, according to this letter, is as high as 94%.

It is evident that a substantial number of persons were arrested for excise offences. The
particulars of preventive arrests, if any, are not furnished nor the percentage of arrests in bailable
cases.

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10.3 MAHARASHTRA
In this State, particulars have been furnished in respect of two districts, namely, Pune rural
district and Thane rural district. The particulars with respect to Pune rural district are the
following:

1. Total no. of persons arrested (no. of persons arrested under substantive offences) –
8943.
2. Total no. of persons arrested under preventive provisions of law – 4933.
3. Out of it, total no. of persons chargesheeted – 8836.
4. Total no. of persons dropped/released without filing chargesheet – 93. It does not
include persons arrested under preventive provisions of law.
5. Total no. of persons ended in conviction – 73.
6. Percentage of arrests made in relation to bailable offences – 72.90%.

The particulars with respect to Thane rural district are to the following effect:

1. Total no. of persons arrested 10,376

2. Total no. of persons arrested under preventive 7,566 provisions of law
3. Out of it, total no. Of persons chargesheeted 10,345
4. (A) Total no. of persons dropped/released 31 without filing chargesheets
(B) Total no. of persons dropped/released without -- filing chargesheets, who arrested
under preventive provisions
5. How many persons ended in conviction 394
6. Percentage of arrests made in relation to 67.73% bailable offences (7028)

It may be noticed that in case of both the said districts, the number of preventive arrests are
unusually high. It is more than one-half of the number of arrests for substantial offence in the
case of Pune rural and two-thirds in the case of Thane rural. Then again the arrests made in
relation to bailable offences are something ununderstandable. It is 72.90 and 67.73 per cent,
respectively. (We are not referring to the number of convictions because we presume that the
reference to number of convictions in that year may not be relatable to the total number of
chargesheets filed during that year).

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10.4 GUJARAT
In this State, a committee of eight officials headed by Addl. DGP, CID (Crime), was constituted
to gather and supply the relevant information. Though the letter of the IGP, Gujarat dated
14.10.1999 states that Ahmedabad rural district, a crime prone district was selected for study, the
particulars furnished through a subsequent letter dated 24.2.2000 are with respect to the entire
State of Gujarat. The total number of accused arrested during the year (1998?) is 1,13,489 out of
which the persons arrested for causing hurt is 29,226, for rioting 12,823, for theft 8,364 and for
house breaking by day and night (put together) 3,147. 42,150 persons were arrested under what
is called the miscellaneous offences. The total number of persons arrested by way of preventive
action “i.e. under sections 107, 109, 110 of CrPC and sections 56, 57, 122 & 124 of Bombay
Police Act and under section 93 of the Prohibition Act” is a total of 1,89,722. In other words, the
preventive arrests are far higher in number than the arrests made for committing substantive
offences.

We must however refer to the letter of the Addl. DGP (CID) Crimes, GS Ahmedabad, Shri G.C.
Raizar, dated 8.10.1999 in as much as it contains certain useful information and suggestions.
Para 1 of the letter says that the power to arrest without warrant in cognizable offences falling
under parts 1 to 5 of the IPC should continue to be available to police officers. Para 2 says that
while the power of arrest is wide ranging, they have to be exercised in such a manner as to avoid
unnecessary harassment to the people. After the judgment of the Supreme Court in D.K. Basu, it
is said, the abuse of the said power has drastically come down. Paras 3 & 4 state that the police
should have the power to arrest without warrant where the offence is committed in their presence
and also where a large quantity of stolen property, contraband goods or illicit weapons etc. are
found in the custody of a person. Para 5 says that the power of arrest without warrant should be
available to police only in important cases. Paras 6, 7 & 8 may be extracted in full having regard
to their relevance.

10.5 BIHAR
The particulars furnished by the DGP Bihar appears to pertain to the district of Muzaffarpur. The
total number of arrests during the year 1998 in the said district for substantive offences was
3,322. The arrests under preventive provisions of law is stated to be 560. The percentage of

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arrests made in relation to bailable offence is stated to be 34.66%. By a subsequent letter dated
30.5.2000, the DGP, Human Rights, Bihar has furnished the particulars with respect to the entire
State (?). According to this letter, the total number of arrests is 2,38,613. The particulars of
preventive arrests however have not been furnished. It is stated that the percentage of arrests
made in relation to bailable offence is 13.90%.

10.6 ORISSA
In this State, the district of Khurda was selected for the purpose of study. According to the
particulars furnished under the letter dated 15.1.2000, the total number of arrests for substantive
offences in the said district for the year 1997 was 4,616. 73 persons were arrested under
preventive provisions of law. The number of persons against whom chargesheets have been filed
is stated to be 2,299. By a letter dated 1.5.2000, the DIG of Prisons, Orissa has furnished the
following particulars with respect to prisoners in the State of Orissa. The total number of
prisoners as on 31.3.2000 is 10,765. The total number of undertrial prisoners as on the said date
is 7,823. It is also stated that pursuant to the directions of the Supreme Court with respect to
release of undertrial prisoners, 44,480 prisoners have been released on bail up to 30.11.1999.

In spite of release of a large number of accused (undertrial prisoners) pursuant to the orders of
the Supreme Court, the number of undertrial prisoners is as high as 3/4th of the total number of
prisoners. One can only imagine the position before the orders of the Supreme Court.

10.7 KARNATAKA
Belgaum district was selected for the purpose of study as it is stated to be a crime-prone district.
The particulars furnished relate to the year 1998. The number of arrests made during the said
year without warrant is 10,368. The number of preventive arrests is 2,262. The percentage of
arrests made in relation to bailable offences is as high as 84.8%. Towards the end of his letter,
the DGP states that police is adhering to the provisions of law strictly and that the enhanced
awareness of their rights among the people, the presence of social and service organisations and
the spread of literacy has led the police to obey the laws.

12. CONCLUSION

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13. BIBLOGRAPHY
11.1 WEBSITES REFERRED
1. [Link]
2. [Link]
3. [Link]/.../120.%20PvdH%20C%20and%20Bockenholt%20Encyclop...
4. [Link]/~dani/PFCwiki/uploads/Main/[Link]
5. [Link]/NOUN_OCL/.../CSS%20455%20Forensic%[Link]
6. [Link]/NOUN_OCL/pdf/pdf2/CSS%[Link]
7. [Link]/_fileupload/consultation%20papers/[Link]
8. [Link]
Criminology_powerpoint_ppt_presentation

11.3 BOOKS REFERRED/ statutes/Articles/ research papers

1. Code of Criminal Procedure
2. Indian Penal Code

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