Need for Guidelines

Arrest involves the restriction of liberty of a person’s arrested and, therefore, infringes the basic human right to liberty. Nevertheless, the Constitution of India as well as International human rights law recognize the power of the State to arrest any person as a part of its primary role of maintaining law and order. The Constitution requires a just, fair, and reasonable procedure established by law under which alone such deprivation of liberty is permissible. Although Article 22(1) of the Constitution provides that every person placed under arrest shall be informed as soon as may be the ground of arrest and shall not be denied the right to consult and be defended by a lawyer of his choice and Sec.50 (Now Sec 47 of BNSS i.e. Person arrested to be informed of grounds of arrest and of right to bail) of the Code of Criminal Procedure, 1973 requires a police officer arresting any person to “forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest”. In actual practice, these requirements are observed more in the breach. Likewise, the requirement of production of the arrested person before the court promptly, which is mandated both under the Constitution (Article 22 (2) and the Cr. P.C. (Section 57, Now Sec. 58 of BNSS, i.e., Person arrested not to be detained more than twenty-four hours) is also not adhered to strictly. A large number of complaints about Human Rights violations are in the area of abuse of police powers, particularly those of arrest and detention. It has therefore become necessary to narrow the gap between law and practice, to prescribe guidelines regarding arrest, even while at the same time not unduly curtailing the power of the police to effectively maintain and enforce law and order and proper investigation.

Pre-Arrest

• The power to arrest without a warrant should be exercised only after a reasonable satisfaction is reached, after some investigation, as t the genuineness and bona fides of a complaint and a reasonable belief as to both the person’s complicity as well as the need to effect arrest. (Jogider Kumar’s Case (1994) 4 SCC 260)
• Arrest cannot be justified merely on the existence of power, as a matter of law, to arrest without a warrant in a cognizable case.
• After Joginder Kaumar’s pronouncement of the Supreme Court, the question. 54 whether the power of arrest has been exercised reasonably or not is a justifiable one.
• An arrest in cognizable cases may be considered justified in one of the following circumstances.
• The case involves a grave offence like murder, dacoit, robbery, rape, etc., and it is necessary to arrest the suspect to prevent him from escaping or evading the process of law.
• The suspect is given to violent behavior and is likely to commit further offences.
• The suspect is required to be prevented from destroying evidence or interfering with witnesses or warning other subjects who have not yet been arrested.
• The suspect is a habitual offender who, unless arrested, is likely to commit similar or further offences. [3^rd Report of National Police Commission].
• Except in heinous offences, as mentioned above, an arrest must be avoided if a police officer issues a notice to the person to attend the police station and not leave the station without permission. (see Joginder Kumar’s Case (1994) SCC 260)
• The power to arrest must be avoided where the offenses are bailable unless there is a strong apprehension of the subject absconding.
• Police officers carrying out an arrest or interrogation should bear clear identification and name tags with designations. The particulars of police personnel carrying out the arrest or interrogation should be recorded contemporaneously, in a register kept at the police station.

Arrest

• As a rule use of force should be avoided while effecting an arrest. However, in case of forcible resistance to arrest, minimum force to overcome such resistance may be used. However, care must be taken to ensure that injuries to the person being arrested, visible or otherwise, is avoided.
• The dignity of the person being arrested should be protected. Public display or parading of the person arrested should not be permitted at any cost.
• Searches of the person arrested must be done with due respect to the dignity of the person, without force or aggression, and with care for the person’s right to privacy. Searches of women should only be made by other women with strict regard to decency. (S 51 (2) Cr. P.C. Now Sec. 49 (2) BNSS)
• The use of handcuffs or leg chains should be avoided and if at all, it should be resorted to strictly by the law repeatedly explained and mandated in judgment of the Supreme Court in Prem Shanker Shukla V Delhi Administration [ (1980) 3 SCC 526] and Citizen for Democracy V State of Assam [(1995) 3 SCC743].
• As far as is practicable, women police officers should be associated where the persons being arrested are women. The arrest of women between sunset and sunrise should be avoided.
• Where juveniles are sought to be arrested, no force or beatings should be administered under any circumstances. Police Officers may, for this purpose, associate with respectable citizens so that the children or juveniles are not terrorized and minimal coercion is used.
• Where the arrest is without a warrant, the person arrested has to be immediately informed of the grounds of arrest in a language which he or she understands. Again, for this purpose, the police. If necessary may take the help of respectable citizens. These grounds must have already been recorded in writing in police records. The person arrested should be shown the written reasons as well and also given a copy on demand (S. 50(1) Cr.P.C., Now Sec 47 (1) of BNSS)
• The arrested person can, on a request made by him or her, demand that a friend, relative or other person known to him be informed of the fact of his arrest and the place of his detention. The police should record in a register the name of the person so informed. Joginder Kumar’s Case (Supra)
• If a person is arrested for a bailable offence, the police officer should inform him of his entitlement to be released on bail so that he may arrange for sureties. (S50(2) Cr.P.C Now Sec.47(2) BNSS)
• Apart from informing the person arrested of the above rights, the police should also inform him of his right to consult and be defended by a lawyer of his choice. He should also be informed that he is entitled to free legal aid at state expense [ D.K. Basu’s Case (1997) 1 SCC]
• When the person arrested is brought to the police station, he should, if he makes a request in this regard, be given prompt medical assistance. He must be informed of this right. Where the police officer finds that the arrested person is in a condition where he is unable to make such a request but is in need of medical help, he should promptly arrange for the same. This must also be recorded contemporaneously in the register. The female requesting medical help should be examined only by a female registered medical practitioner. (S53 Cr. P.C. Now Sec. 51 of BNSS).
• Information regarding the arrest and the place of detention should be communicated by the police officer effecting he arrest without any delay to the Police Officer effecting the arrest without any delay to the Police Control Room and District / State Headquarters. There must be a monitoring mechanism working around the clock.
• As soon as the person is arrested, police officer affecting the arrest shall make a mention of the existence or non-existence of any injuries, are found on the person of the arrestee, full description and other particulars as to how the injuries were caused should be mentioned in the register, which entry shall also be signed by the police officer and the arrestee. At the time of release of the arrestee, a certificate to the above effect under the signature of the police officer shall be issued to the arrestee.
• If the arrestee has been remanded to police custody under the orders of the court, the arrestee should be subjected to medical examination by a trained Medical Officer, every 48 hours during his detention appointed by the Director, Health Services of the concerned State or Union Territory. At the time of his release from the police custody, the arrestee shall be got medically examined, and a certificate shall be issued to him stating therein the factual position custody, the arrestee shall be got medically examined and a certificate shall be issued to him stating therein the factual position of the existence or non-existence of any injuries on his person.

Post Arrest

• The person under arrest must be produced before the appropriate court within 24 hours of the arrest (Ss 56 and 57 Cr.P.C., now Ss 57 and 58 of BNSS)
• The person arrested should be permitted to meet their lawyer at any time during the interrogation.
• The interrogation should be conducted in a clearly identifiable place, which has been notified for this purpose by the Government. The place must be accessible, and the relatives or friends of the person arrested must be informed of the place where the interrogation is taking place.
• The methods of interrogation must be consistent with the recognized rights to life, dignity, and liberty, and the right against torture and degrading treatment.

Enforcement of Guidelines

1. The guidelines must be translated into as many languages as possible and distributed to every police station. It must also be incorporated in the handbook, given to every policeman.
2. Guidelines must receive maximum publicity in the print or other electronic media. It should also be prominently displayed on the notice board, in more than one language, in every police station.
3. The police must establish a complaint redressal mechanism that promptly investigates complaints of guideline violations and takes corrective action.
4. The notice board, which displays guidelines, must also indicate the location of the complaints redressal mechanism and how that body can be approached.
5. NOGs and public institutions, including courts, hospitals, and universities, must be involved in disseminating these guidelines to ensure the widest possible reach.
6. The functioning of the complaint redressal mechanism must be transparent, and its reports must be accessible.
7. Prompt action must be taken against errant police officers for violating the guidelines. This should not be limited to departmental enquiries but also set in motion the criminal justice mechanism.
8. Sensitization and training of police officer is essential for effective implementation of the guidelines.