House Arrest and General Arrest
In justice and law, House Arrest is a measure by which a person is confined
by the authorities to their residence. Travel is usually restricted, if allowed
at all. House arrest is an alternative to being in a prison while awaiting trial
or after sentencing. While house arrest can be applied to criminal cases when
prison does not seem an appropriate measure, the term is often applied to the
use of house confinement as a measure of repression by authoritarian governments
against political dissidents.
In these cases, the person under house arrest often does not have access to any means of communication with people outside of the home; if electronic communication is allowed, conversations may be monitored. House Arrest, court - ordered confinement in one’s own home.
The sentence is viewed as an important alternative to standard incarceration at various stages of the criminal justice process. It is employed by criminal justice systems around the world and often entails very diverse requirements. There are several forms of house arrest, depending on the severity of the requirements of the court order.
Home detention is an alternative to imprisonment; its goals are both to reduce recidivism and to decrease the number of prisoners, thereby saving money for states and other jurisdictions. It is a corrective to mandatory sentencing laws that greatly increased the incarceration rates in the United States. It allows eligible offenders to retain or seek employment, maintain family relationships and responsibilities and attend rehabilitative programs that contribute towards addressing the causes of their offending.
The terms of house arrest can differ, but most programs allow employed offenders to continue to work, and confine them to their residence only during non-working hours. Offenders are commonly allowed to leave their home for specific purposes; examples can include visits to the probation officer or police station, religious services, education, attorney visits, court appearances, and medical appointments.
Many programs also allow the convict to leave their residence during regular, pre-approved times in order to carry out general household errands, such as food shopping and laundry. Offenders may have to respond to communications from a higher authority to verify that they are at home when required to be. Exceptions are often made to allow visitors to visit the offender.
The types of house arrest vary in severity according to the requirements of the court order. A curfew may restrict an offender to their house at certain times, usually during hours of darkness. Home confinement or detention requires an offender to remain at home at all times, apart from the above-mentioned exceptions. The most serious level of house arrest is home incarceration, under which an offender is restricted to their residence 24 hours a day, 7 days a week, except for court-approved treatment programs, court appearances, and medical appointments.
In some exceptional cases, it is possible for a person to be placed under house arrest without trial or legal representation, and subject to restrictions on their associates. In some countries this type of detention without trial has been criticized for breaching the offender's human right to a fair trial. In countries with authoritarian systems of government, the government may use such measures to stifle dissent.
Curfew generally refers to restricting an offender to his home during specified times, usually during the evening hours. Under home confinement or home detention, the offender is confined to the home for most hours, with stated exceptions for school, work, religious services, medical or drug treatment, or food shopping.
These exceptions are generally specified in advance and strictly enforced. Finally, home incarceration, perhaps the most severe form of house arrest, generally refers to cases in which the offender is required to remain in the home at all times, with rare exceptions such as medical treatment or court-ordered correctional therapy such as drug-abuse counselling.
The latter two forms of house arrest are often enforced through electronic surveillance via a device placed on the offender’s ankle, thus enabling his or her presence or absence from the home to be monitored very closely. Each of these forms of house arrest can be imposed at almost any stage of the criminal justice system and is used for various purposes.
As per the law, the criminal laws in India have no provision to place a person under house arrest. According to the Code of Criminal Procedure, only two kinds of custody are possible — police custody or judicial remand. When a person is arrested, the police are required by law to produce the person before a magistrate within 24 hours. The magistrate will then decide whether to place the person under police custody — if further investigation is required — or under judicial remand — usually in a jail until trial is completed.
In both cases, the person in custody can seek bail, as per the law.
Generally, a person who breaks the law is arrested. So, what is arrest? In general term, ‘arrest’ would mean that when a person is arrested they lose some of their freedom and liberty. They are put under restraint.
The Criminal Procedure Code of 1973, however that deals with the aspects of arrests has not defined the ‘Arrest’. When a person is arrested, then the arrested person is taken into custody of an authority empowered by the law for detaining the person. The person is then asked to answer the charges against him and he is detained so that no further crime is committed.
At times, there is restraint by the legal authority but sometimes the person on his own submits to the custody of the person making the 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.
In Indian law, Criminal Procedural Code 1973 (hereinafter referred to as Cr.P.C), chapter V (Section 41 to 60) talks about Arrest of a person but it does not define arrest anywhere.
Legal Basis
House Arrest refers to confining a person’s movements within his house or any other place of choice. Apart from restricting communication, the person is also under constant police surveillance. Constitutional courts in India have directed police to hold persons under house arrests. This makeshift arrangement, however, does not allow the person to seek bail since the ‘arrest’ is directed by a constitutional court.
The Apex court’s once gave an order which was based on Article 142 of the Indian Constitution which grants the court power to pass any orders necessary for doing complete justice in any cause or matter pending before it. While the orders must not be contrary to existing laws, nothing prevents the court from passing orders on issues where there are no laws. However, the apex court did not justify its decision in the Bhima - Koregaon case. The court usually doesn’t provide reasons for its interim orders.
The Delhi High Court was set to release Navlakha, one of the five arrested activists, before the apex court passed the house arrest order. Navalakha had earlier separately moved the high court challenging his arrest by the Pune police.
The Delhi HC wanted to release Navalakha but the apex court’s orders came in the way. In fact, the HC’s methods were right, hear the case and decide right away. What the top court has done is further violate the person’s liberty, said a senior advocate, unrelated to the Bhima-Koregaon case, on condition of anonymity.
The concept of ‘house arrest’ in India has until now been recognized only with regard to preventive detention laws. Section 5 of the National Security Act (a statute providing for preventive detention) contemplates detention of a person in such place as the government deems fit.
As Article 22 of the Constitution (which deals with arrest and remand) does not apply to preventive detention, the concept of ‘house arrest’ has not been identified hitherto by the Supreme Court or High Courts in criminal cases. The essence of remand in criminal law is for the magistrate to apply his mind and determine if custodial interrogation of the arrestee is necessary to unearth the truth in a given case. Could the concept of 'house arrest' fall within the ambit of 'custody'?
The Supreme Court recently answered this question in the affirmative.
Police officers are empowered to arrest a person without warrant in a cognizable case under Section 41 of the Code of Criminal Procedure (Cr.P.C). Thereafter, the mandate of Section 57 of the Cr.P.C, which requires production of the accused before the nearest magistrate within 24 hours of such arrest, has to be followed. The magistrate can then authorize his custody under Section 167 of the Cr.P.C.
Section 167 of the Cr.P.C contemplates detention of accused to custody, empowering a magistrate to authorise such detention of accused in such custody as he thinks fit for a period not exceeding 15 days in total. If the magistrate does not have jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
In offences under the Unlawful Activities Prevention Act, the term ‘15’ days under Section 167 of the Cr.P.C has been modified to ‘30’ days.
The said provision has been elucidated upon by the Supreme Court in:
In which cases it was held that if the investigation in a case is not completed within the prescribed period mentioned in Section 167(2) of the Cr.P.C, an indefeasible right of bail accrues in favor of the arrestee. The release on bail on account of default committed by the investigating agency to complete investigation is widely known as default or statutory bail.
In Central Bureau of Investigation v. Anupam J. Kulkarni, the Supreme Court has identified the phrase ‘such custody as he thinks fit’ under 167 of Cr.P.C to mean police custody and judicial custody. It was further held that the magistrate acting under Section 167 of the Cr.P.C was authorized to grant police custody only for the first 15 days and thereafter only judicial custody.
One major advantage of the use of home confinement at this stage is that people not yet found guilty are not subjected to incarceration with other, possibly more-serious, offenders. Alternatively, house arrest can be described as a form of punishment but one less punitive than confinement in jail or prison. Because of this premise, house arrest should be used only for offenders who would normally not be let out on bail or in cases where a very high bail is set but is reduced on the condition of house arrest.
House arrest at this stage is particularly useful for juveniles, who are commonly detained for long periods of time prior to adjudication for minor offenses only to be released following adjudication and sentencing.
House Arrest is also used as criminal sanction meted out by judges at sentencing. The purposes of house arrest at sentencing are to administer a reasonable punishment, protect public safety, reserve jail space for more-serious offenders, reduce the potential criminogenic effects of incarceration, and help rehabilitate the offender. The basic goal in this case is to provide a cost-effective alternative to incarceration. House arrest may cover the entire length of a sentence or only a part of it.
For instance, in some jurisdictions a sentence is broken down into three parts: an offender is incarcerated for a period of time, then allowed to participate in a work-release program, and then graduated to home confinement. In general, there is agreement among both criminal justice professionals and the general public that house arrest is a reasonable sanction for certain low-risk offenders who seem likely to profit from not being exposed to other criminals and from maintaining employment and family ties. Research suggests that offenders experience the sanction as a punishment, although one less punitive than incarceration.
House arrest is also used at the tail end of the criminal justice system, as a form of early release and community reintegration. Again, the goals are to reduce jail and prison crowding and to act as a mechanism to help the offender readjust to life outside prison, with all the attendant pressures and enticements to reoffend.
Eligibility
An important aspect of house arrest is deciding who should be eligible. In general, violent offenders are not considered eligible for house arrest, and it is inappropriate to use house arrest for offenders such as drug dealers convicted for selling drugs out of their homes. With the exception of habitual traffic offenders and people convicted of having driven under the influence of alcohol, extensive prior records generally preclude the use of house arrest, at least at the sentencing stage.
Other factors that are often taken into consideration are employability, history of substance abuse, and unstable living arrangements. The health status of the offender might also be taken into account; house arrest is sometimes used for people with terminal illnesses who pose minimal risks to the community and wish to die with dignity in their homes or with their families. House arrest is not a good option, however, if there are known offenders residing in or near the home or if the victim resides in the home. Careful screening and follow-up are necessary for the effective use of house arrest.
Cost-effectiveness
A major concern about house arrest is whether it is cost-effective. The cost-effectiveness of house arrest is dependent on a number of conditions, including where in the trial process it is being used, how it is implemented, what types of offenders are deemed eligible, and whether they recidivate. The cost-effectiveness of house-arrest programs is a controversial issue that is often researched.
At the front end of the system, for pretrial defendants, a limited use of house arrest is likely to be cost-effective as long as it is used for people who normally would not be released on their own recognizance or who cannot make bail. Likewise, at the sentencing stage, house arrest is likely to be cost-effective if used on lesser offenders who would normally be detained or on those who may have gotten probation but who need the extra formal controls to resist criminal temptations.
At the tail end of the criminal justice system, house arrest is almost certainly cost-effective, because the costs of housing offenders and building new prisons is immense in comparison with the costs of monitoring offenders’ home confinement or curfew. Furthermore, the fact that offenders often are allowed to work enables them to support families, pay restitution, and even help pay for the equipment used to monitor them. One must also consider rates of recidism and the safety of the public when determining cost-effectiveness.
The rights are as follows and have been discussed in the chapters that follow, of this project in detail.
They are as follows and there is a brief mention of the legal provisions for them.
Madhu Limaye Case is an example here.
The legal provisions for the same can be found in:
Section 50(1). 55,75 of CrPC and Art 22(2) of the Constitution of India
Nandini Sathpathy vs P.L.Dani: In this case it was mentioned that no one can forcibly extract statements from the accused, who has tevery right to keep silent if he so chooses. The legal provisions for the same can be found in: Art 20(2) of the Constitution of India
Case Law: Uday Mohanlal Acharya v. State of Maharashtra
The legal provisions for the same can be found in:
Sections 50(2), 436, 437, 438 of CrPC
Sections 42, 43, 56, 59, 169, 170, 436, 437 and Schedule I Column 5 of CrPC also confer the right to grant bail to the accused but by the police under certain rules.
Case Law: State of Punjab v Ajaib Singh
The legal provisions for the same can be found in:
Sections 56,71,76 of Cr.P.C
This right has been created with a view:
Case Law: Gunupati Keshavram v. Nafisul Hasan
The legal provisions for the same can be found in:
Section 57 of CrPC, Art 22(2) of the Constitution of India
Rights at trial
Keeping with the international system of law, our constitution upholds the fair trial system and the same is also seen in our procedural law. Fair trial is necessary to protect the accused individual’s basic rights from unlawful and arbitrary deprivation and it is also based on the principle of natural justice.
The house arrest judgment: A step ahead
On May 12, a Division Bench of Justices UU Lalit and KM Joseph dismissed Gautam Navlakha’s default bail plea in the Bhima Koregaon matter. It held that though house arrest could be ordered for the purpose of custodial interrogation or detention, Navlakha’s house arrest was not purported to be passed for this purpose. In light of these observations, it was held that that the period during which Navlakha was under house arrest could not be computed under Section 167(2) of the Cr.P.C.
While parting with the judgment, the Court observed that the concept of house arrest as custody under Section 167 of the CrPC had not engaged courts including the Supreme Court. However, considering the issue and noticing its ingredients, it would very much be part of custody under Section 167 of the CrPC. In this backdrop, it was held that it would be open to courts to order house arrest under Section 167 of the CrPC considering factors like age, health conditions, antecedents of the accused, the nature of crime, the need for other forms of custody and the ability to enforce the terms of house arrest.
The Court in its judgment said that house arrest can be employed by courts taking into account criteria like age, health condition and the antecedents of the accused, the nature of the crime etc.
It will be open to courts to order house arrest of accused persons under Section 167 of the Code of Criminal Procedure in appropriate cases, the Supreme Court ruled on Wednesday (Gautam Navlakha v. National Investigation Agency).
The Supreme Court observed that in appropriate cases, courts can order house arrest under Section 167 of Code of Criminal Procedure. The court said that, to order house arrest, courts can consider criteria like 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.
Gautam Navlakha’s house arrest
Gautam Navlakha was arrested on August 28, 2018 from his residence in New Delhi. Pursuant to his arrest, Navlakha moved a plea of Habeas Corpus before the Delhi High Court seeking his release contending that his arrest was illegal. At the same time, he was produced by the National Investigating Agency (NIA) before the Chief Metropolitan Magistrate (CMM) at Saket, Delhi who permitted the NIA to produce him before the Special Court in Maharashtra on August 30, as the cause of action had arisen in Maharashtra.
However, the Delhi High Court stayed this order of the CMM and directed that Navlakha would not be taken away and instead would be kept under house arrest until further orders. On the next day, a writ petition was filed in the Supreme Court alleging a high-handed approach by the Maharashtra Police concerning the arrest of co-accused including Navlakha. By way of an interim order, the Supreme Court extended the house arrest of Navlakha and others. On September 28, 2018 the Supreme Court dismissed the writ petition by a majority of 2:1.
However, the Delhi High Court thereafter allowed Mr. Navlakha’s plea and set aside the CMM’s order of transit remand observing that the constitutional mandates were not followed. Consequently, it was held that Navlakha’s house arrest had come to an end.
House Arrest and Gautam Navlakha
The Supreme Court turned down social activist Gautam Navalakha’s plea for grant of default bail in the alleged Elgar Parishad-Maoist link case even as it batted for embracing the international practice of putting accused under house arrest in deserving and suitable cases as means to decongest prisons.
Navalakha, who approached the apex court after the Bombay high court rejected his plea for bail in the case, had sought default bail on the ground that NIA had failed to file its chargesheet within the prescribed time limit of 90 days. He pleaded that the period for which he was under house arrest should be counted as part of judicial custody while deciding the custody period. NIA, however, contended that the period of 34 days of Navlakha’s house arrest between August 29 and October 1, 2018, cannot be included in the period of detention.
A bench of Justices UU Lalit and held that an accused under house arrest should be treated as being under custody for estimating the duration of detention. However, the Justices refused to treat Navlakha’s 34 days of house arrest as part of judicial custody on the ground that the orders of the Delhi High Court and Supreme Court pertaining to his house arrest were not passed under Section 167 of the Criminal Procedure Code.
But while turning down Navlakha’s plea, the bench made a strong pitch for following the practice followed in many countries of putting the accused under house arrest instead of sending them to jail in deserving and suitable cases. We observe that under Section 167 in appropriate cases, it will be open to courts to order house arrest. As to its employment, without being exhaustive, we may indicate criteria like age, health condition and antecedents of the accused, nature of the crime, need for other forms of custody and the ability to enforce the terms of house arrest.
The Court also stated by saying that we would also indicate under Section 309 that judicial custody being custody ordered, subject to following the criteria, the courts will be free to employ it in deserving and suitable cases, the bench said. In India, the concept of house arrest has its roots in laws providing for preventive detention like Section 5 of the National Security Act. But there is no mention of house arrest under Criminal Procedure Code. Referring to advantages of the practice of accused being put under house arrest, the court said it will lead to avoidance of overcrowding of prisons and also save cost of running them. There is tremendous amount of overcrowding in jails in India. Secondly, a very large sum (Rs 6818.1 crore) was the budget on prisons, the bench said.
He then approached the Supreme Court, which granted interim protection from arrest but relegated him to apply for anticipatory bail. Navlakha’s plea seeking anticipatory bail was rejected in the Sessions Court, the High Court and the Supreme Court as well. The Supreme Court permitted him to surrender on April 8, 2020 which was extended to April 14, 2020. Thereafter, Navlakha surrendered to the NIA on April 14, 2020.
On June 11, 2020, he filed a plea seeking default bail under Section 167(2) of the CrPC contending that an indefeasible right of bail had accrued in his favour as the time prescribed for completing investigation had lapsed. Navlakha in his plea included the period of 34 days of house arrest from August 28 – October 1, 11 days of custody with NIA from April 15 to April 25 and 48 days in judicial custody. As per the Supreme Court, the period of house arrest could not be considered to fall within the ambit of ‘custody’ as the Delhi High Court did not permit custodial interrogation during that time.
Our statute is quite careful towards anyone’s personal liberty and hence doesn’t permit the detention of any person without proper legal sanction. It is provided by the article 21 of our constitution that there will be no person who shall be deprived of his life or personal liberty except according to procedure. The scope for corruption and connected malpractices arises at several stages in the day-to-day working of the Police. It can start at the time of registering a case, for taking a call to arrest or not arrest or for extortion or collecting ‘hafta’ for interfering in civil disputes, for producing false evidence and so on.
The power of arrest is the most important source of corruption and extortion by the police officers. From the moment, a case is registered by the Police on a cognizable complaint, they get the power to arrest any person who may be ‘concerned in that offence’, either on the basis of the complaint itself or on credible information otherwise received.
The procedure laid down by Article 21 must be followed in a ‘right, just and fair’ and not in any arbitrary, fanciful or oppressive manner. It is expected that the arrest should not only be legal but justified also. Even the Constitution of India, recognizes the rights of arrested person under the Fundamental Rights. Hence, the accused has been provided with certain rights under the law.
Another type of arrest is Private Arrest in which a person is arrested by another person. But it is allowed only in case a person commits a non-bailable offence 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.
Section 41(1) Cr.P.C Says: Any police officer- may without an order from a magistrate and without a warrant arrest any person who has committed a cognizable offence, who is in possession of stolen property, or is a state offender, who obstructs a police officer in discharge of his duty, who attempts to escape from lawful custody, who is declared as a deserted from any of the Armed Forces of the Union, who is a released convict and breaches his contract of release etc.
Section 42 authorizes a police officer to arrest a person for an offence which is non-cognizable if the person to be arrested refuses to give his name and residence.
Section 43 gives the right to a private person like you and me to carry out an arrest of a person who in his presence commits a cognizable or a non-bailable offence or who is a proclaimed offender. Section 44 arrests by magistrate as per section 44(1) of Cr.P.C, the Magistrate has been given the power to arrest an individual who has committed an offence in his presence and also commit him to custody.
However, Cr.P.C exempts the members of Armed forces from being arrested for anything done by them in discharge of their official duties except after obtaining the consent of the government (section 45 Cr.P.C).
Section 46 of Cr.P.C explains how arrest is made with or without warrant.
Section 46(4) special protection as females, that forbids arrest of women after sunset and before sunrise, except in exceptional circumstances in which case the arrest can be done by a woman police officer after making a written report obtaining a prior permission from the concerned judicial magistrate of first class within whose local jurisdiction the offence is committed or the arrest is to be made.
Section 41(2) of Cr.P.C, 1973 states that subject to the condition in Section 42, a person cannot be arrested without a warrant and an order of the magistrate in case of non-cognizable offence and where a complaint is made. The procedures to be followed while arresting a person find its mention in Section 46 of the Code. But this Code is not fully sufficient to provide all the procedures, for this the guidelines given in different cases are followed.
In the United States, an arrest without a warrant still requires a probable cause, which must be promptly filed.
Section 42(1) says that when a person has committed a non-cognizable offence refuses to give his name or address or gives a false name and address on the demand of the officer, he may be arrested by such officer to ascertain his correct name or residence.
Section 42(2) says that the person so arrested may be released after ascertaining the true name or residence but only after executing a bond, with or without sureties, to appear before the magistrate if required. But if the person is not a resident of India then the bond should be secured by a security or securities resident of India.
Section 42(3) says that if true name or address of the person is not found within twenty-four hours or if he fails to execute the bond or required sureties then he has to be presented before the magistrate falling within the jurisdiction.
Section 43(1) states that a private person can arrest another person who commits a non-bailable offence or any proclaimed offender and without wasting any unnecessary time can be taken to a police officer and in the absence of the officer the accused has to be taken to the nearest police station.
Section 43(2) says that if the arrest of that person comes under Section 41, the police officer shall re-arrest him.
Section 43(3) provides that if there is sufficient reason to believe that he has committed a bailable offence and refuses to give his true name or address to the police officer, he shall be dealt with according to the provisions of Section 42. But he shall be released if there is no sufficient reason to believe that he has committed an offence.
Section 44(2) in addition to clause 1 also provides that the Magistrate can also arrest or direct to any person in his presence, within his local jurisdiction of whom who he is competent to arrest at that time and in the circumstances to arrest.
Section 45(1) states that no member of the armed forces can be arrested for anything have done while discharging the official duties except with the consent of the Central Government. It is subject to the conditions mentioned in Section 41-44 of the Code.
Section 45(2) lays out that the State Government may through a notification be able to direct that the sub-section (1) shall apply to any class or category of members of Armed forces who are charged with the maintenance of public order as may be specified thereupon, whenever they are serving. In other words, the State government just like the Central Government is empowered to use the power mentioned in sub-section (1).
Section 151 gives power to the police officials to arrest a person, without a warrant, on the suspicion that he may commit a cognizable offence. However, this comes with certain conditions: the anticipated offence should be cognizable and the officer should feel that the offence would be prevented only by an arrest of the suspect. Section 107 gives similar powers to the magistrate. However, Numerous petitions have been filed questioning the constitutional validity of these sections as it gives plenty of room for the misuse of powers under these sections.
It is the only place that gives the meaning of arrest. Section 46(1) provides that in an action of arrest the police officer or the person making the arrest shall actually touch or confine the body of the person arrested. In the case of women, her submission to the custody of an oral intimation of arrest shall be presumed and unless the police officer is female, she shall not be touched by the police officer at the time of time. But in exceptional situations, contrary to what is mentioned can be done.
According to Section 46(2), the police are authorised to use reasonable amount or means of force to affect the arrest in cases where the person being arrested forcibly resists or attempts to evade arrest.
Recently what we saw in the Hyderabad Rape case (2019) can be a good example. The police officer using the power under this provision used an amount of force to prevent the accused from escaping. Whether the amount of force applied was reasonable or not is a question which will be inquired by the court.
Section 46(3) does not give the right to cause the death of the person who is not accused of an offence. The punishment in such cases is death or imprisonment for life.
Section 46(4) says that except in certain conditions a woman cannot be arrested after sunset and before sunrise and where such exceptional conditions exist, the woman police officer by making a written report can obtain the prior permission of the Judicial Magistrate with the local jurisdiction to make an arrest.
Additional powers for effecting arrest search of place
Section 47 of Cr.P.C provides for the search of place entered by place sought to be entered. It further provides that the person having the warrant has the duty to enter the premises of the person being arrested. If the person is not able to easily ingress the premises or is not allowed to enter, then they have the authority to break open the door. It is done to take the person by surprise.
But if there is any female occupying the premises then the person arrested has to give notice to that female to withdraw and shall afford every reasonable facility for withdrawing and they may break the apartment.
Any police officer or person making the arrest is authorised to break open the door in order to liberate him if he is detained in that process.
Section 51(1) says that in case of a search of female, it will happen only by a female maintaining some amount of decency.
Seizure of offensive weapons
The officer or the person arresting has the power to seize any offensive weapon which he possesses and deposit all weapons to the court or the officer before whom the person making the arrest is required by the Code to produce the person arrested (Section 52).
Section 52(2) says that when the examination is done of a female, it should only be done by a female or under the supervision of a female registered medical practitioner.
Section 53A discusses the method of medical examination of a person accused of rape.
Article 20 of the Constitution provides that no person who is an accused can be compelled to give evidence against him. This provision comes into play in relation to this section.
Secondly, in the case where the arrest is made under a warrant, the police officer under Section 75 Cr.P.C. is required to inform the person arrested about the substance of arrest and if required to show the order. If it is not done the arrest will become unlawful.
The Indian Constitution also supports this and had emphasised upon it in Article 22(1), a fundamental right. It prescribes certain rights that are present with the accused at the time of arrest (fundamental in nature). It says that no person who is arrested shall be detained in custody without being informed about the reason for arrest and consult a legal practitioner of his choice. In re Madhu Limaye case, the petitioner was not informed about the grounds of his arrest along with his companions. He challenged this under Article 32 as it was in violation of his fundamental right before the Supreme Court. The Supreme Court observed that there was a violation of an essential and vital right of the petitioner.
Thirdly, when an arrest is made without a warrant by a police officer, it is his duty to show before the magistrate without unnecessary delay (usually within 24 hours). It is also mentioned that the person arrested cannot be taken to any place other than the police station before presenting before the magistrate. This is provided in Article 22 with Section 56 and Section 76 of the Cr.P.C.
Apart from this, the police officer always has to bear the clear, visible and proper identification of his name which may facilitate his easy identification. As soon as the arrest is made a memo should be prepared which is to be attested by at least one witness and countersigned by the person arrested.
The arrested person also has the right to consult an advocate of his choice during interrogation under section 41D and Section 303 of Cr.P.C. Apart from these, there are many other rights and procedures mentioned in the further part of the article.
Conclusion
This decision widens the scope of ‘custody,’ essentially manifesting that custodial interrogation is now permissible even while under house arrest. Courts are now empowered to exercise a new option (which is practically not police nor judicial custody) in cases of remand.
The Supreme Court may further have to elucidate on
The reason for elucidation is to avoid its misuse. Routine orders of house arrests may not help the society in reducing crimes. At the same time, the police must not be permitted to take undue advantage of the situation.
Nevertheless, positively adopting the concept may be of significance. The Supreme Court recently ordered the release of certain class of prisoners on interim bail, to avoid congestion and overcrowding in prisons which could help prevent spreading of the corona virus. If house arrests are ordered in appropriate cases, it would definitely aid in decongesting prisons, which is a dire requirement at this stage.
Written By: Bhaswat Prakash, Student at Ajeenkya DY Patil University, Pune
In these cases, the person under house arrest often does not have access to any means of communication with people outside of the home; if electronic communication is allowed, conversations may be monitored. House Arrest, court - ordered confinement in one’s own home.
The sentence is viewed as an important alternative to standard incarceration at various stages of the criminal justice process. It is employed by criminal justice systems around the world and often entails very diverse requirements. There are several forms of house arrest, depending on the severity of the requirements of the court order.
Home detention is an alternative to imprisonment; its goals are both to reduce recidivism and to decrease the number of prisoners, thereby saving money for states and other jurisdictions. It is a corrective to mandatory sentencing laws that greatly increased the incarceration rates in the United States. It allows eligible offenders to retain or seek employment, maintain family relationships and responsibilities and attend rehabilitative programs that contribute towards addressing the causes of their offending.
The terms of house arrest can differ, but most programs allow employed offenders to continue to work, and confine them to their residence only during non-working hours. Offenders are commonly allowed to leave their home for specific purposes; examples can include visits to the probation officer or police station, religious services, education, attorney visits, court appearances, and medical appointments.
Many programs also allow the convict to leave their residence during regular, pre-approved times in order to carry out general household errands, such as food shopping and laundry. Offenders may have to respond to communications from a higher authority to verify that they are at home when required to be. Exceptions are often made to allow visitors to visit the offender.
The types of house arrest vary in severity according to the requirements of the court order. A curfew may restrict an offender to their house at certain times, usually during hours of darkness. Home confinement or detention requires an offender to remain at home at all times, apart from the above-mentioned exceptions. The most serious level of house arrest is home incarceration, under which an offender is restricted to their residence 24 hours a day, 7 days a week, except for court-approved treatment programs, court appearances, and medical appointments.
In some exceptional cases, it is possible for a person to be placed under house arrest without trial or legal representation, and subject to restrictions on their associates. In some countries this type of detention without trial has been criticized for breaching the offender's human right to a fair trial. In countries with authoritarian systems of government, the government may use such measures to stifle dissent.
Curfew generally refers to restricting an offender to his home during specified times, usually during the evening hours. Under home confinement or home detention, the offender is confined to the home for most hours, with stated exceptions for school, work, religious services, medical or drug treatment, or food shopping.
These exceptions are generally specified in advance and strictly enforced. Finally, home incarceration, perhaps the most severe form of house arrest, generally refers to cases in which the offender is required to remain in the home at all times, with rare exceptions such as medical treatment or court-ordered correctional therapy such as drug-abuse counselling.
The latter two forms of house arrest are often enforced through electronic surveillance via a device placed on the offender’s ankle, thus enabling his or her presence or absence from the home to be monitored very closely. Each of these forms of house arrest can be imposed at almost any stage of the criminal justice system and is used for various purposes.
As per the law, the criminal laws in India have no provision to place a person under house arrest. According to the Code of Criminal Procedure, only two kinds of custody are possible — police custody or judicial remand. When a person is arrested, the police are required by law to produce the person before a magistrate within 24 hours. The magistrate will then decide whether to place the person under police custody — if further investigation is required — or under judicial remand — usually in a jail until trial is completed.
In both cases, the person in custody can seek bail, as per the law.
What is arrest?
Definition and meaningGenerally, a person who breaks the law is arrested. So, what is arrest? In general term, ‘arrest’ would mean that when a person is arrested they lose some of their freedom and liberty. They are put under restraint.
The Criminal Procedure Code of 1973, however that deals with the aspects of arrests has not defined the ‘Arrest’. When a person is arrested, then the arrested person is taken into custody of an authority empowered by the law for detaining the person. The person is then asked to answer the charges against him and he is detained so that no further crime is committed.
At times, there is restraint by the legal authority but sometimes the person on his own submits to the custody of the person making the 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.
In Indian law, Criminal Procedural Code 1973 (hereinafter referred to as Cr.P.C), chapter V (Section 41 to 60) talks about Arrest of a person but it does not define arrest anywhere.
Legal Basis
House Arrest refers to confining a person’s movements within his house or any other place of choice. Apart from restricting communication, the person is also under constant police surveillance. Constitutional courts in India have directed police to hold persons under house arrests. This makeshift arrangement, however, does not allow the person to seek bail since the ‘arrest’ is directed by a constitutional court.
The Apex court’s once gave an order which was based on Article 142 of the Indian Constitution which grants the court power to pass any orders necessary for doing complete justice in any cause or matter pending before it. While the orders must not be contrary to existing laws, nothing prevents the court from passing orders on issues where there are no laws. However, the apex court did not justify its decision in the Bhima - Koregaon case. The court usually doesn’t provide reasons for its interim orders.
The Delhi High Court was set to release Navlakha, one of the five arrested activists, before the apex court passed the house arrest order. Navalakha had earlier separately moved the high court challenging his arrest by the Pune police.
The Delhi HC wanted to release Navalakha but the apex court’s orders came in the way. In fact, the HC’s methods were right, hear the case and decide right away. What the top court has done is further violate the person’s liberty, said a senior advocate, unrelated to the Bhima-Koregaon case, on condition of anonymity.
The concept of ‘house arrest’ in India has until now been recognized only with regard to preventive detention laws. Section 5 of the National Security Act (a statute providing for preventive detention) contemplates detention of a person in such place as the government deems fit.
As Article 22 of the Constitution (which deals with arrest and remand) does not apply to preventive detention, the concept of ‘house arrest’ has not been identified hitherto by the Supreme Court or High Courts in criminal cases. The essence of remand in criminal law is for the magistrate to apply his mind and determine if custodial interrogation of the arrestee is necessary to unearth the truth in a given case. Could the concept of 'house arrest' fall within the ambit of 'custody'?
The Supreme Court recently answered this question in the affirmative.
Arrest, remand and default bail:
Previous interpretation of the term custodyPolice officers are empowered to arrest a person without warrant in a cognizable case under Section 41 of the Code of Criminal Procedure (Cr.P.C). Thereafter, the mandate of Section 57 of the Cr.P.C, which requires production of the accused before the nearest magistrate within 24 hours of such arrest, has to be followed. The magistrate can then authorize his custody under Section 167 of the Cr.P.C.
Section 167 of the Cr.P.C contemplates detention of accused to custody, empowering a magistrate to authorise such detention of accused in such custody as he thinks fit for a period not exceeding 15 days in total. If the magistrate does not have jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
A magistrate shall, however, not authorize detention to custody for a total period exceeding:
- Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
- Sixty days, where the investigation relates to any other offence.
In offences under the Unlawful Activities Prevention Act, the term ‘15’ days under Section 167 of the Cr.P.C has been modified to ‘30’ days.
The said provision has been elucidated upon by the Supreme Court in:
- Chaganti Satyanarayan v. State of Andhra Pradesh,
- Uday Mohanlal Acharya v. State of Maharashtra and
- Bikramjit Singh v. State of Punjab
In which cases it was held that if the investigation in a case is not completed within the prescribed period mentioned in Section 167(2) of the Cr.P.C, an indefeasible right of bail accrues in favor of the arrestee. The release on bail on account of default committed by the investigating agency to complete investigation is widely known as default or statutory bail.
In Central Bureau of Investigation v. Anupam J. Kulkarni, the Supreme Court has identified the phrase ‘such custody as he thinks fit’ under 167 of Cr.P.C to mean police custody and judicial custody. It was further held that the magistrate acting under Section 167 of the Cr.P.C was authorized to grant police custody only for the first 15 days and thereafter only judicial custody.
Basis Concept behind House Arrest
House Arrest can be useful as a form of pretrial confinement for defendants who appear to be inappropriate candidates for being released on their own recognizance or who are unable to post bond. The primary goals of pretrial house arrest are to guarantee that the defendant shows up at trial, to ensure public safety, to reduce jail overcrowding, and to reserve jail space for the most dangerous or untrustworthy defendants.One major advantage of the use of home confinement at this stage is that people not yet found guilty are not subjected to incarceration with other, possibly more-serious, offenders. Alternatively, house arrest can be described as a form of punishment but one less punitive than confinement in jail or prison. Because of this premise, house arrest should be used only for offenders who would normally not be let out on bail or in cases where a very high bail is set but is reduced on the condition of house arrest.
House arrest at this stage is particularly useful for juveniles, who are commonly detained for long periods of time prior to adjudication for minor offenses only to be released following adjudication and sentencing.
House Arrest is also used as criminal sanction meted out by judges at sentencing. The purposes of house arrest at sentencing are to administer a reasonable punishment, protect public safety, reserve jail space for more-serious offenders, reduce the potential criminogenic effects of incarceration, and help rehabilitate the offender. The basic goal in this case is to provide a cost-effective alternative to incarceration. House arrest may cover the entire length of a sentence or only a part of it.
For instance, in some jurisdictions a sentence is broken down into three parts: an offender is incarcerated for a period of time, then allowed to participate in a work-release program, and then graduated to home confinement. In general, there is agreement among both criminal justice professionals and the general public that house arrest is a reasonable sanction for certain low-risk offenders who seem likely to profit from not being exposed to other criminals and from maintaining employment and family ties. Research suggests that offenders experience the sanction as a punishment, although one less punitive than incarceration.
House arrest is also used at the tail end of the criminal justice system, as a form of early release and community reintegration. Again, the goals are to reduce jail and prison crowding and to act as a mechanism to help the offender readjust to life outside prison, with all the attendant pressures and enticements to reoffend.
Eligibility
An important aspect of house arrest is deciding who should be eligible. In general, violent offenders are not considered eligible for house arrest, and it is inappropriate to use house arrest for offenders such as drug dealers convicted for selling drugs out of their homes. With the exception of habitual traffic offenders and people convicted of having driven under the influence of alcohol, extensive prior records generally preclude the use of house arrest, at least at the sentencing stage.
Other factors that are often taken into consideration are employability, history of substance abuse, and unstable living arrangements. The health status of the offender might also be taken into account; house arrest is sometimes used for people with terminal illnesses who pose minimal risks to the community and wish to die with dignity in their homes or with their families. House arrest is not a good option, however, if there are known offenders residing in or near the home or if the victim resides in the home. Careful screening and follow-up are necessary for the effective use of house arrest.
Cost-effectiveness
A major concern about house arrest is whether it is cost-effective. The cost-effectiveness of house arrest is dependent on a number of conditions, including where in the trial process it is being used, how it is implemented, what types of offenders are deemed eligible, and whether they recidivate. The cost-effectiveness of house-arrest programs is a controversial issue that is often researched.
At the front end of the system, for pretrial defendants, a limited use of house arrest is likely to be cost-effective as long as it is used for people who normally would not be released on their own recognizance or who cannot make bail. Likewise, at the sentencing stage, house arrest is likely to be cost-effective if used on lesser offenders who would normally be detained or on those who may have gotten probation but who need the extra formal controls to resist criminal temptations.
At the tail end of the criminal justice system, house arrest is almost certainly cost-effective, because the costs of housing offenders and building new prisons is immense in comparison with the costs of monitoring offenders’ home confinement or curfew. Furthermore, the fact that offenders often are allowed to work enables them to support families, pay restitution, and even help pay for the equipment used to monitor them. One must also consider rates of recidism and the safety of the public when determining cost-effectiveness.
Rights of an arrested person in India
The accused in India are afforded certain rights, the most basic of which are found in the Indian Constitution. Article 21 of Indian Constitution provides few rays of hope to the lives of arrested, under trials and convicts. The treatment of such people has to be humane and in the manner prescribed by law. Hence, the accused has been provided with certain rights under the law.The rights are as follows and have been discussed in the chapters that follow, of this project in detail.
They are as follows and there is a brief mention of the legal provisions for them.
Grounds of Arrest: Right to be informed
This right has been given the status of a Fundamental right in the Indian Constitution. Article 22(2) of the Indian Constitution says that no person who is arrested shall be detained in custody without being informed as soon as may not be, of the grounds of such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice. This right is very important for the person arrested as he may be innocent. If he gets to know of the grounds of arrest then it enables him to apply for bail or in appropriate circumstances for a writ of habeas corpus, or to make fast and suitable s arrangement for his defence. Also, it gives the arrestee the right that any one person close to him is informed about his arrest immediately.Madhu Limaye Case is an example here.
The legal provisions for the same can be found in:
Section 50(1). 55,75 of CrPC and Art 22(2) of the Constitution of India
Right to Silence
Just because the accused /arrested person chose to be silent under interrogation doesn’t mean that he is guilty. There is much speculation if this right is to be exercised in modern times as mentioned in Justice Malimath Committee’s report.Nandini Sathpathy vs P.L.Dani: In this case it was mentioned that no one can forcibly extract statements from the accused, who has tevery right to keep silent if he so chooses. The legal provisions for the same can be found in: Art 20(2) of the Constitution of India
Right to be released on Bail
Article 21 of the Indian Constitution says that every individual shall have a right to liberty as per procedures established by law. However, an accused cannot be given all these liberties till he is proven innocent. But he needs to be informed that he has a right to apply for bail in bailabe offences and even in non-bailable offences, bail is granted by the Court after taking into factors such as nature or seriousness of the offence, the character of the evidence etc.Case Law: Uday Mohanlal Acharya v. State of Maharashtra
The legal provisions for the same can be found in:
Sections 50(2), 436, 437, 438 of CrPC
Sections 42, 43, 56, 59, 169, 170, 436, 437 and Schedule I Column 5 of CrPC also confer the right to grant bail to the accused but by the police under certain rules.
Right to be taken before Magistrate without delay
Whether the arrest was made with or without warrant. The person making such an arrest is duty bound to present the accused before the magistrate within 24 hours excluding the time taken for traveling from the place of arrest to the Magistrates’ court.Case Law: State of Punjab v Ajaib Singh
The legal provisions for the same can be found in:
Sections 56,71,76 of Cr.P.C
Rights regarding detention
If the arrested person is not produced before a magistrate within 24 hours of the arrest, by the police officer then he shall be held guilty of wrongful detention.This right has been created with a view:
- That the arrestee is not compelled to give confessions, or as a means of compelling people to give information
- So, the police stations don’t act like prisons for which they are unsuitable.
Case Law: Gunupati Keshavram v. Nafisul Hasan
The legal provisions for the same can be found in:
Section 57 of CrPC, Art 22(2) of the Constitution of India
Rights at trial
Keeping with the international system of law, our constitution upholds the fair trial system and the same is also seen in our procedural law. Fair trial is necessary to protect the accused individual’s basic rights from unlawful and arbitrary deprivation and it is also based on the principle of natural justice.
The house arrest judgment: A step ahead
On May 12, a Division Bench of Justices UU Lalit and KM Joseph dismissed Gautam Navlakha’s default bail plea in the Bhima Koregaon matter. It held that though house arrest could be ordered for the purpose of custodial interrogation or detention, Navlakha’s house arrest was not purported to be passed for this purpose. In light of these observations, it was held that that the period during which Navlakha was under house arrest could not be computed under Section 167(2) of the Cr.P.C.
While parting with the judgment, the Court observed that the concept of house arrest as custody under Section 167 of the CrPC had not engaged courts including the Supreme Court. However, considering the issue and noticing its ingredients, it would very much be part of custody under Section 167 of the CrPC. In this backdrop, it was held that it would be open to courts to order house arrest under Section 167 of the CrPC considering factors like age, health conditions, antecedents of the accused, the nature of crime, the need for other forms of custody and the ability to enforce the terms of house arrest.
The Court in its judgment said that house arrest can be employed by courts taking into account criteria like age, health condition and the antecedents of the accused, the nature of the crime etc.
It will be open to courts to order house arrest of accused persons under Section 167 of the Code of Criminal Procedure in appropriate cases, the Supreme Court ruled on Wednesday (Gautam Navlakha v. National Investigation Agency).
The Supreme Court observed that in appropriate cases, courts can order house arrest under Section 167 of Code of Criminal Procedure. The court said that, to order house arrest, courts can consider criteria like 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.
Gautam Navlakha’s house arrest
Gautam Navlakha was arrested on August 28, 2018 from his residence in New Delhi. Pursuant to his arrest, Navlakha moved a plea of Habeas Corpus before the Delhi High Court seeking his release contending that his arrest was illegal. At the same time, he was produced by the National Investigating Agency (NIA) before the Chief Metropolitan Magistrate (CMM) at Saket, Delhi who permitted the NIA to produce him before the Special Court in Maharashtra on August 30, as the cause of action had arisen in Maharashtra.
However, the Delhi High Court stayed this order of the CMM and directed that Navlakha would not be taken away and instead would be kept under house arrest until further orders. On the next day, a writ petition was filed in the Supreme Court alleging a high-handed approach by the Maharashtra Police concerning the arrest of co-accused including Navlakha. By way of an interim order, the Supreme Court extended the house arrest of Navlakha and others. On September 28, 2018 the Supreme Court dismissed the writ petition by a majority of 2:1.
However, the Delhi High Court thereafter allowed Mr. Navlakha’s plea and set aside the CMM’s order of transit remand observing that the constitutional mandates were not followed. Consequently, it was held that Navlakha’s house arrest had come to an end.
House Arrest and Gautam Navlakha
The Supreme Court turned down social activist Gautam Navalakha’s plea for grant of default bail in the alleged Elgar Parishad-Maoist link case even as it batted for embracing the international practice of putting accused under house arrest in deserving and suitable cases as means to decongest prisons.
Navalakha, who approached the apex court after the Bombay high court rejected his plea for bail in the case, had sought default bail on the ground that NIA had failed to file its chargesheet within the prescribed time limit of 90 days. He pleaded that the period for which he was under house arrest should be counted as part of judicial custody while deciding the custody period. NIA, however, contended that the period of 34 days of Navlakha’s house arrest between August 29 and October 1, 2018, cannot be included in the period of detention.
A bench of Justices UU Lalit and held that an accused under house arrest should be treated as being under custody for estimating the duration of detention. However, the Justices refused to treat Navlakha’s 34 days of house arrest as part of judicial custody on the ground that the orders of the Delhi High Court and Supreme Court pertaining to his house arrest were not passed under Section 167 of the Criminal Procedure Code.
But while turning down Navlakha’s plea, the bench made a strong pitch for following the practice followed in many countries of putting the accused under house arrest instead of sending them to jail in deserving and suitable cases. We observe that under Section 167 in appropriate cases, it will be open to courts to order house arrest. As to its employment, without being exhaustive, we may indicate criteria like age, health condition and antecedents of the accused, nature of the crime, need for other forms of custody and the ability to enforce the terms of house arrest.
The Court also stated by saying that we would also indicate under Section 309 that judicial custody being custody ordered, subject to following the criteria, the courts will be free to employ it in deserving and suitable cases, the bench said. In India, the concept of house arrest has its roots in laws providing for preventive detention like Section 5 of the National Security Act. But there is no mention of house arrest under Criminal Procedure Code. Referring to advantages of the practice of accused being put under house arrest, the court said it will lead to avoidance of overcrowding of prisons and also save cost of running them. There is tremendous amount of overcrowding in jails in India. Secondly, a very large sum (Rs 6818.1 crore) was the budget on prisons, the bench said.
Interim protection from arrest
On October 5, 2018, Navlakha moved the Bombay High Court for quashing of the First Information Report (FIR). The High Court protected Navlakha from arrest during pendency of the petition. In the meantime, a charge-sheet was filed. The Bombay High Court thereafter dismissed the petition but granted interim protection from arrest to Navlakha for three weeks.He then approached the Supreme Court, which granted interim protection from arrest but relegated him to apply for anticipatory bail. Navlakha’s plea seeking anticipatory bail was rejected in the Sessions Court, the High Court and the Supreme Court as well. The Supreme Court permitted him to surrender on April 8, 2020 which was extended to April 14, 2020. Thereafter, Navlakha surrendered to the NIA on April 14, 2020.
Plea of default bail
Navlakha was produced by the NIA before the Sessions Judge, New Delhi on April 15, 2020, and was initially remanded to 7 days police custody, which was later extended by further 7 days. However, prior to its expiry, Navlakha was remanded to judicial custody on April 25, 2020.On June 11, 2020, he filed a plea seeking default bail under Section 167(2) of the CrPC contending that an indefeasible right of bail had accrued in his favour as the time prescribed for completing investigation had lapsed. Navlakha in his plea included the period of 34 days of house arrest from August 28 – October 1, 11 days of custody with NIA from April 15 to April 25 and 48 days in judicial custody. As per the Supreme Court, the period of house arrest could not be considered to fall within the ambit of ‘custody’ as the Delhi High Court did not permit custodial interrogation during that time.
View of Arrest under Indian Constitution
Every person has to be treated as a human being first, irrespective of the fact that such person is a criminal. Even so the accused is considered innocent till proven guilty by a court of law. It is a characteristic of our democratic society that even the rights of the accused are deemed to be sacrosanct, even though he is charged with an offence.Our statute is quite careful towards anyone’s personal liberty and hence doesn’t permit the detention of any person without proper legal sanction. It is provided by the article 21 of our constitution that there will be no person who shall be deprived of his life or personal liberty except according to procedure. The scope for corruption and connected malpractices arises at several stages in the day-to-day working of the Police. It can start at the time of registering a case, for taking a call to arrest or not arrest or for extortion or collecting ‘hafta’ for interfering in civil disputes, for producing false evidence and so on.
The power of arrest is the most important source of corruption and extortion by the police officers. From the moment, a case is registered by the Police on a cognizable complaint, they get the power to arrest any person who may be ‘concerned in that offence’, either on the basis of the complaint itself or on credible information otherwise received.
The procedure laid down by Article 21 must be followed in a ‘right, just and fair’ and not in any arbitrary, fanciful or oppressive manner. It is expected that the arrest should not only be legal but justified also. Even the Constitution of India, recognizes the rights of arrested person under the Fundamental Rights. Hence, the accused has been provided with certain rights under the law.
Types of arrest
The term Arrest has been defined neither in the Cr.P.C (The Code of Criminal Procedure, 1973) nor IPC (Indian Penal Code,1860). The definition has not been provided even in any enactments dealing with Criminal Offences. The only indication of what does an arrest constitute can be made out of Section 46 of Cr.P.C which deals with ‘How an arrest is made’.If broadly characterized arrest is of two types:
- Arrest made in pursuance with a warrant issued by the magistrate.
- Arrest made without any warrant but within the established legal provisions.
Another type of arrest is Private Arrest in which a person is arrested by another person. But it is allowed only in case a person commits a non-bailable offence 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.
Who can arrest?
The arrest can be made by police, magistrate and even a private person.Section 41(1) Cr.P.C Says: Any police officer- may without an order from a magistrate and without a warrant arrest any person who has committed a cognizable offence, who is in possession of stolen property, or is a state offender, who obstructs a police officer in discharge of his duty, who attempts to escape from lawful custody, who is declared as a deserted from any of the Armed Forces of the Union, who is a released convict and breaches his contract of release etc.
Section 42 authorizes a police officer to arrest a person for an offence which is non-cognizable if the person to be arrested refuses to give his name and residence.
Section 43 gives the right to a private person like you and me to carry out an arrest of a person who in his presence commits a cognizable or a non-bailable offence or who is a proclaimed offender. Section 44 arrests by magistrate as per section 44(1) of Cr.P.C, the Magistrate has been given the power to arrest an individual who has committed an offence in his presence and also commit him to custody.
However, Cr.P.C exempts the members of Armed forces from being arrested for anything done by them in discharge of their official duties except after obtaining the consent of the government (section 45 Cr.P.C).
Section 46 of Cr.P.C explains how arrest is made with or without warrant.
Section 46(4) special protection as females, that forbids arrest of women after sunset and before sunrise, except in exceptional circumstances in which case the arrest can be done by a woman police officer after making a written report obtaining a prior permission from the concerned judicial magistrate of first class within whose local jurisdiction the offence is committed or the arrest is to be made.
Arrest by warrant
If a person commits an offence which is non-arrestable then a warrant is necessary to be issued. The police cannot make such kind of arrest without a warrant. The warrant is issued by a Judge or a Magistrate on behalf of the state. An arrest warrant authorizes the arrest or detention of the person or capture or seizure of an individual’s property. Section 41(1) of Cr.P.C, 1973 explains when a person can be arrested without any warrant.Section 41(2) of Cr.P.C, 1973 states that subject to the condition in Section 42, a person cannot be arrested without a warrant and an order of the magistrate in case of non-cognizable offence and where a complaint is made. The procedures to be followed while arresting a person find its mention in Section 46 of the Code. But this Code is not fully sufficient to provide all the procedures, for this the guidelines given in different cases are followed.
Arrest without warrant
An arrest without a warrant means when a police officer is entitled to arrest a person without any warrant. It can happen only in cases where a person is a suspect of an arrestable offence. There are several grounds provided in Section 41(1) of Cr.P.C under which an arrest can be made without a warrant. It is usually done in case of a cognizable offence, when a reasonable complaint is made or when a piece of credible information has been received.In the United States, an arrest without a warrant still requires a probable cause, which must be promptly filed.
Arrest on refusal to give name and residence
Section 42 of CrP.C. states the course of action in case of arrest on refusal to give name and residence.Section 42(1) says that when a person has committed a non-cognizable offence refuses to give his name or address or gives a false name and address on the demand of the officer, he may be arrested by such officer to ascertain his correct name or residence.
Section 42(2) says that the person so arrested may be released after ascertaining the true name or residence but only after executing a bond, with or without sureties, to appear before the magistrate if required. But if the person is not a resident of India then the bond should be secured by a security or securities resident of India.
Section 42(3) says that if true name or address of the person is not found within twenty-four hours or if he fails to execute the bond or required sureties then he has to be presented before the magistrate falling within the jurisdiction.
Procedure of arrest by a private person
The procedure of arrest by a private person is expressly provided in Section 43 of the Criminal Procedural Code.Section 43(1) states that a private person can arrest another person who commits a non-bailable offence or any proclaimed offender and without wasting any unnecessary time can be taken to a police officer and in the absence of the officer the accused has to be taken to the nearest police station.
Section 43(2) says that if the arrest of that person comes under Section 41, the police officer shall re-arrest him.
Section 43(3) provides that if there is sufficient reason to believe that he has committed a bailable offence and refuses to give his true name or address to the police officer, he shall be dealt with according to the provisions of Section 42. But he shall be released if there is no sufficient reason to believe that he has committed an offence.
Arrest by magistrate
Magistrate here includes both an executive or judicial Magistrate. According to Section 44(1) of Cr.P.C when an offence is committed in the presence of a magistrate within his local jurisdiction, he has the power to arrest that person himself or order any person for arrest and subject to the conditions relating to bail, commit the accused to custody.Section 44(2) in addition to clause 1 also provides that the Magistrate can also arrest or direct to any person in his presence, within his local jurisdiction of whom who he is competent to arrest at that time and in the circumstances to arrest.
An exception of the Armed forces
The members of the Armed Forces are protected from arrest as provided in Section 45 of Cr.P.C.Section 45(1) states that no member of the armed forces can be arrested for anything have done while discharging the official duties except with the consent of the Central Government. It is subject to the conditions mentioned in Section 41-44 of the Code.
Section 45(2) lays out that the State Government may through a notification be able to direct that the sub-section (1) shall apply to any class or category of members of Armed forces who are charged with the maintenance of public order as may be specified thereupon, whenever they are serving. In other words, the State government just like the Central Government is empowered to use the power mentioned in sub-section (1).
Constitutionality of Section 107 and 151 of Cr.P.C
For the purpose of arresting without a warrant, a police officer may pursue such an individual into any place in India as stated under Section 48. Section 49 of the Code says that the arrested person shall not be subject to any unnecessary restraint or physical inconvenience unless it is required to do so to prevent his escape.Section 151 gives power to the police officials to arrest a person, without a warrant, on the suspicion that he may commit a cognizable offence. However, this comes with certain conditions: the anticipated offence should be cognizable and the officer should feel that the offence would be prevented only by an arrest of the suspect. Section 107 gives similar powers to the magistrate. However, Numerous petitions have been filed questioning the constitutional validity of these sections as it gives plenty of room for the misuse of powers under these sections.
Procedure of arrest
There is no complete code which provides the procedure as a whole. Still, Section 46 explains how arrest is made.It is the only place that gives the meaning of arrest. Section 46(1) provides that in an action of arrest the police officer or the person making the arrest shall actually touch or confine the body of the person arrested. In the case of women, her submission to the custody of an oral intimation of arrest shall be presumed and unless the police officer is female, she shall not be touched by the police officer at the time of time. But in exceptional situations, contrary to what is mentioned can be done.
According to Section 46(2), the police are authorised to use reasonable amount or means of force to affect the arrest in cases where the person being arrested forcibly resists or attempts to evade arrest.
Recently what we saw in the Hyderabad Rape case (2019) can be a good example. The police officer using the power under this provision used an amount of force to prevent the accused from escaping. Whether the amount of force applied was reasonable or not is a question which will be inquired by the court.
Section 46(3) does not give the right to cause the death of the person who is not accused of an offence. The punishment in such cases is death or imprisonment for life.
Section 46(4) says that except in certain conditions a woman cannot be arrested after sunset and before sunrise and where such exceptional conditions exist, the woman police officer by making a written report can obtain the prior permission of the Judicial Magistrate with the local jurisdiction to make an arrest.
Additional powers for effecting arrest search of place
Section 47 of Cr.P.C provides for the search of place entered by place sought to be entered. It further provides that the person having the warrant has the duty to enter the premises of the person being arrested. If the person is not able to easily ingress the premises or is not allowed to enter, then they have the authority to break open the door. It is done to take the person by surprise.
But if there is any female occupying the premises then the person arrested has to give notice to that female to withdraw and shall afford every reasonable facility for withdrawing and they may break the apartment.
Any police officer or person making the arrest is authorised to break open the door in order to liberate him if he is detained in that process.
Pursuit of offenders
Pursuit is the action of pursuing someone or something. In this case, it basically talks about the offenders. Section 48 authorizes the police officers to pursue offenders in any place in India whom he is authorised to do so without a warrant.Deputing subordinate to arrest
When any police officer who is in charge of a police station or any police officer making an investigation under Chapter XII requires any subordinate to him arrest without warrant any person who is lawfully arrested has to give in writing the reason specifying for which he is arrested. The subordinate before making such arrest is required to notify the person being arrested the substance of the order and if requires show him the order. This is given in Section 55 of Cr.P.C.Power, on escape, to pursue and retake
Section 60 of Cr.P.C.– If there is a person who is in the lawful custody of the police tries to escape or is rescued, may be immediately pursued and arrested in any place in India.Search of an arrested person
Section 51(1) provides that the person arrested can be searched for articles on the body and the receipt of all those articles is to be provided to that person.Section 51(1) says that in case of a search of female, it will happen only by a female maintaining some amount of decency.
Seizure of offensive weapons
The officer or the person arresting has the power to seize any offensive weapon which he possesses and deposit all weapons to the court or the officer before whom the person making the arrest is required by the Code to produce the person arrested (Section 52).
Medical examination of accused
Section 52(1) provides that when a person who is arrested for a charge of the offence of such a nature that there are reasonable grounds for believing that such examination will produce evidence related to the commission of the offence. It is lawful for a registered medical practitioner under the request of the police officer, not below the rank of sub-inspector to carry about an examination with the use of reasonable force. But this force cannot be too much.Section 52(2) says that when the examination is done of a female, it should only be done by a female or under the supervision of a female registered medical practitioner.
Section 53A discusses the method of medical examination of a person accused of rape.
Article 20 of the Constitution provides that no person who is an accused can be compelled to give evidence against him. This provision comes into play in relation to this section.
Post arrest procedures
Firstly, according to Section 50(1) of Cr.P.C., it is the duty of the police officer or any person arrested without warrant to inform the person arrested about the grounds of the offence for the arrest.Secondly, in the case where the arrest is made under a warrant, the police officer under Section 75 Cr.P.C. is required to inform the person arrested about the substance of arrest and if required to show the order. If it is not done the arrest will become unlawful.
The Indian Constitution also supports this and had emphasised upon it in Article 22(1), a fundamental right. It prescribes certain rights that are present with the accused at the time of arrest (fundamental in nature). It says that no person who is arrested shall be detained in custody without being informed about the reason for arrest and consult a legal practitioner of his choice. In re Madhu Limaye case, the petitioner was not informed about the grounds of his arrest along with his companions. He challenged this under Article 32 as it was in violation of his fundamental right before the Supreme Court. The Supreme Court observed that there was a violation of an essential and vital right of the petitioner.
Thirdly, when an arrest is made without a warrant by a police officer, it is his duty to show before the magistrate without unnecessary delay (usually within 24 hours). It is also mentioned that the person arrested cannot be taken to any place other than the police station before presenting before the magistrate. This is provided in Article 22 with Section 56 and Section 76 of the Cr.P.C.
Apart from this, the police officer always has to bear the clear, visible and proper identification of his name which may facilitate his easy identification. As soon as the arrest is made a memo should be prepared which is to be attested by at least one witness and countersigned by the person arrested.
The arrested person also has the right to consult an advocate of his choice during interrogation under section 41D and Section 303 of Cr.P.C. Apart from these, there are many other rights and procedures mentioned in the further part of the article.
Conclusion
This decision widens the scope of ‘custody,’ essentially manifesting that custodial interrogation is now permissible even while under house arrest. Courts are now empowered to exercise a new option (which is practically not police nor judicial custody) in cases of remand.
The Supreme Court may further have to elucidate on
- The contemplated parameters for granting house arrest under Section 167 of the Cr.P.C. for lower courts to acclimatize to this concept;
- Whether the police would be entitled to enter such person’s house at any time for the purpose of custodial interrogation;
- After interrogating the person, whether the person would have to be physically produced before the court for extending his custody; etc.
The reason for elucidation is to avoid its misuse. Routine orders of house arrests may not help the society in reducing crimes. At the same time, the police must not be permitted to take undue advantage of the situation.
Nevertheless, positively adopting the concept may be of significance. The Supreme Court recently ordered the release of certain class of prisoners on interim bail, to avoid congestion and overcrowding in prisons which could help prevent spreading of the corona virus. If house arrests are ordered in appropriate cases, it would definitely aid in decongesting prisons, which is a dire requirement at this stage.
Written By: Bhaswat Prakash, Student at Ajeenkya DY Patil University, Pune
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