DR.

RAM MANOHAR LOHIYA,

NATIONAL LAW UNIVERSITY, LUCKNOW

2015-2016

CRIMINAL PROCEDURE CODE

[PROJECT WORK]

ON

ENHANCED FUNDAMENTAL RIGHTS AGREED BY INDIAN CONSTITUTION

TO THE CRIMINALLY ACCUSSED PERSON: ARE SAFEGUARDS BEING
REDUCED?

SUBMITTED FOR THE PROJECT WORK UNDERTAKEN IN THE PARTIAL

FULFILLMENT OF B.A. LL.B. (HONS.) 5 YEARS INTEGRATED COURSE OF DR.
RAM MANOHAR LOHIYA NLU, LUCKNOW

SUBMITTED TO: SUBMITTED BY:

MR. PREM KUMAR GAUTAM TANU SHRIVASTAVA

ASST. PROF., LAW ROLL NO.-144; SECTION-B

DR. RMLNLU, LUCKNOW BA.LLB. (H); SEMESTER- V

1
ACKNOWLEDGEMENT

The present project on the said subject is able to get its final shape with the support and help
of people from various quarters. My sincere thanks go to all the members without whom the
study could not have come to its present state. I am proud to acknowledge gratitude to the
individuals and institutes during my study and without whom the study may not be
completed. I have taken this opportunity to thank those who genuinely helped me.

With immense pleasure, I express my deepest sense of gratitude to ma’am to assign and help
me in my project. I am also thankful to the whole Ram Manohar Lohiya National Law
University family that provided me all the material I required for the project.

2
INDEX

1. INTRODUCTION………………………………………………………………………..……4
2. HANDCUFFS – A NECESSITY (SEC.49 OF CRPC) ............................................................….....6
3. WHAT MAKES HANDCUFFING A NECESSITY (SEC.50 CRPC)…………………….....7
4. HOURS – DEADLINE OR GUIDELINE? (SEC.57 OF CRPC)………………………...……13
5. CONCLUSION………………………………………………………………………..……..16
6. BIBLIOGRAPHY…………………………………………………………………………….19

3
INTRODUCTION
The project includes the rights of the accused at the time of arrest, at the time of search and
seizure, during the process of trial and the like. When the researcher was faced with the task
of selecting a specific aspect of the rights of the accused, she chose to concentrate on the
rights of the arrested person. Thus, this project shall focus on this specific aspect.
The definition of arrest is “a restraint of a man’s person, obliging him to be obedient to the
law”. Arrest means the total restraint and complete deprivation of liberty of a person by legal
authority or at least, by apparent legal authority. It has also been defined as “to restrain or
detain a person by lawful authority”.

It has been observed by the Supreme Court that the law of arrest is one of balancing the
rights, liberties and privileges of the individual on one hand, and his duties, obligations and
responsibilities on the other. Arrest is also about balancing the rights of the individual with
that of society’s rights since a person is normally arrested for a crime that is usually defined
as a wrong against society. In recent times, much attention has been focussed on the way the
police treat arrested persons.

D. K. Basu v. State of West Bengal1, often considered as the encyclopaedia on the law of

arrest. This case has laid down several important dos and don’ts of arrest. Thus, this
judgement has tried to ensure the very least of rights to the arrested.
Section 49 of the Cr.P.C. states that the person arrested shall not be subjected to more
restraint than is necessary to prevent his escape. Thus, this section relates to the manner in
which the accused is treated after his arrest. It has been contended that this section lays down
the minimal amount of restraint required in order to prevent an arrested person from running
away.
In the landmark case of Sunil Batra v. Delhi Administration2, the Supreme Court
pronounced that fetters should be shunned as violative of human dignity and that the
indiscriminate use of handcuffs is illegal. The Court also held that handcuffs are permissible
only in cases where the person concerned has a credible tendency for violence and escape and
when all other modes of restraint have not worked. This decision has influenced subsequent
judgements on the use of handcuffs and has been heavily relied on.

1
AIR 1997 SC 610.

2
(1978) 4 SCC 494.
4
It is therefore clear that the Courts of this country have recognized that arrested persons have
the right to be treated with dignity. Thus, any violation of this provision is punishable under
Section 220 of the Indian Penal Code. It is also punishable under Section 29 of the Police
Act, as it becomes necessary to consider whether a police officer acting in a manner
suggestive of exceeding his powers, was in fact aware that what he was doing was violative
of the law.

When a person is arrested, the most obvious question that will arise in his mind is ‘Why?’
After a while, once the initial shock of the arrest subsides, the foremost question will be
‘How can I get out?’. Thus, Section 50 of the Cr.P.C. specifically provides that when a
police officer arrests a person without a warrant, he must forthwith communicate to him the
full particulars of the offence for which he is arrested or other ground for arrest. This Section
also provides that when a police officer arrests any person not accused of a non-bailable
offence without a warrant, he shall inform the person so arrested of his entitlement to be
released on bail so that he may arrange for bail and for sureties, if required, on his behalf.

Thus, under this Section the arresting officer is bound to inform the arrested person the
grounds for his arrest, including the full details of the offence for which he has been arrested
and whether or not he is entitled to bail. A corollary to this principle is that if a subordinate
officer is deputed by a senior officer to arrest a person, then before making the arrest, he shall
notify the person to be arrested the substance of the written order given by the senior police
officer specifying the offence or other cause for which the arrest is to be made. If an arrest is
made without complying with these requirements, then the arrest will be deemed illegal and
will make the arresting officer liable to all remedies that are available in the case of an illegal
arrest.3

If the arrested person very simply does not understand what is being communicated to him,
then he will not be aware of his rights and hence, this will not result in compliance of Section
50(1).
Section 50(2) specifies that the arresting authority have to inform the arrested person whether
or not he has the right to bail. Non-compliance with this provision will again result in
illegality of arrest.
Hence, we have seen that the Courts have insisted on strict compliance with the provisions of
Section 50 and the various facets of this provision have been examined. It becomes clear that
3
M. R. Mallick, B. B. Mitra on the Code of Criminal Procedure, 1973, Kamal Law House, Calcutta,
1987, p. 198.
5
if a police officer violates any part of these provisions then, he in fact violates the
Constitution itself. Thus, such omission to inform the arrested person of the reasons for his
arrest amounts not merely to non-compliance with law but, more seriously, non-compliance
with the bedrock of our legal system, the Constitution.

One of the most important rights of an arrested person is that he be produced before a
Magistrate within twenty-four hours of the arrest. This is laid down in Section 57 of the
Cr.P.C. which states that “no police officer shall detain in custody a person arrested without
warrant for a longer period that under all the circumstances of the case is reasonable, and
such period shall not, in the absence of a special order of a Magistrate under Section 168,
exceed twenty-four hours exclusive of the time necessary for the journey from the place of
arrest to the Magistrate’s Court”.

Therefore, when a person is arrested, he must be produced before a Magistrate within twenty-
four hours of the arrest. The Magistrate can pass an order of remand under Section 167 of the
Cr.P.C. for his detention. However, this cannot exceed a term of fifteen days. He can also be
produced before a Magistrate who has the authority to try the case and hence, can remand the
person into custody for a term more than fifteen days but less than sixty days.

Thus, after having examined the different provisions that guarantee different rights to the
accused, it emerges that these rights cannot be abrogated by the police officers and that if
they do happen to violate any of these rights, they are not only committing a crime under the
Indian Penal Code but are also violating fundamental rights guaranteed by the Indian
Constitution. Hence, there is no place for laxity on the part of the police force in ensuring that
the arrested persons avail of their rights.

HANDCUFFS – A NECESSITY
Section 49 of the Cr.P.C. states that the person arrested shall not be subjected to more
restraint than is necessary to prevent his escape. Thus, this section relates to the manner in
which the accused is treated after his arrest. It has been contended that this section lays down
the minimal amount of restraint required in order to prevent an arrested person from running
away. Of course, it goes without saying that in order to apply this provision and exercise
reasonable restraint on the accused, he must first be arrested. 4Once this has been done, the
debate on this matter has more or less been restricted to the question of whether it is

4
S. C. Sarkar, The Law of Criminal Procedure, S. C. Sarkar & Sons (P) Ltd., Calcutta, 1975, p. 53
6
necessary to handcuff the arrested person and whether this would amount to unnecessary
restraint.

It has been opined that it is not necessary that a police officer, while arresting an accused,
should immediately put handcuffs on the accused. The police would be justified in
handcuffing the arrested person only under exceptional circumstances or if there were reasons
to believe that the accused would attempt to escape after arrest. 5The reason for such a
provision appears that if police officers are authorized to handcuff all those arrested, they
would in effect be given a blanket power to impose oppression on the arrested as the person
so restrained would then be rendered helpless would be in a rather vulnerable state.

In the landmark case of Sunil Batra v. Delhi Administration6, the Supreme Court

pronounced that fetters should be shunned as violative of human dignity and that the
indiscriminate use of handcuffs is illegal. The Court also held that handcuffs are permissible
only in cases where the person concerned has a credible tendency for violence and escape and
when all other modes of restraint have not worked. This decision has influenced subsequent
judgements on the use of handcuffs and has been heavily relied on.
In Prem Shankar Shukla v. Delhi Administration7, Justice Krishna Iyer held that to
handcuff a person is to punish and humiliate the person. Handcuffs fetter the minimal
freedom guaranteed under Article 19 of the Constitution of India and therefore this cannot be
done. He also held that in order to be consistent with the Constitution, handcuffs must be
regarded as the last resort and must not be imposed merely by way of routine or convenience.
Unless there is a clear and present danger of the prisoner attempting to escape out of police
control, such suspicion being based on the prisoner’s past record, handcuffs cannot be
justified. The learned Judge also held that in the event that a police officer deems handcuffs
necessary, he must note down the reasons for doing so.  Justice Pathak, in his concurring
judgement, found that even if a police officer is empowered to restrain a person by handcuffs,
he must exercise such power with moderation and must not use it maliciously or arbitrarily.
He further held that Section 49 of the Cr.P.C. embodies the core principle of controlling the
power to impose restraint on the prisoner while in custody and if restraint must be used, it
must used only to prevent the escape of the prisoner and no more. This discretion must
5
Justice K. D. Shahi, Princep’s Commentary on the Code of Criminal Procedure, 1973, Delhi Law
House, Delhi, 2000, p. 199.

6
(1978) 4 SCC 494.

7
(1980) 3 SCC 526.
7
applied depending on the facts and circumstances of each case. Thus, this case embodies the
basic principle that unless absolutely necessary, handcuffs must not be imposed on the
arrested person and even if they are, there must be reasonable justification on record for
doing so.
In Prabhunarayan v. State of Madhya Pradesh 8it was held that it is wrong to equate the
question of custody or restraint with the handcuffing of the person concerned. Further,
Section 49 of the Cr.P.C. lays down that the person arrested shall not be subjected to more
restraint than is necessary to prevent his escape. The Court also held that there is no provision
that implies that unless a person is handcuffed, he is not entitled to be heard on the question
of his release on bail. The most important principle laid down in this case was that an accused
in a criminal trial is presumed to be innocent until proven guilty beyond reasonable doubt.
Thus, this must be kept in mind and unnecessary harassment of citizens must be avoided.
In the case of Sunil Gupta v. State of Madhya Pradesh 9the Supreme Court held even in
extreme circumstances that necessitate the escort party to bind the prisoners in fetters, the
escort party must record the reasons for doing so in writing and intimate the court so that the
court may either approve or disapprove this action and issue necessary directions. In Citizens
for Democracy v. State of Assam10, it was found that the relevant considerations for putting a
prisoner in fetters are the character, antecedents and propensities of the prisoner. The Court
also held that while the police are under a public duty to prevent the escape of prisoners and
provide them with safe custody, at the same time they must not infract the rights guaranteed
to the prisoners under the Constitution under Articles 14, 19 and 21. Thus, using fetters just
on whims and fancies is not permissible.
Hence, it seems a well-established law in India that the use of handcuffs by the police
authorities is prohibited unless absolutely unavoidable. Even when they do use handcuffs, the
reasons for doing so must recorded in writing. However, while this may be a safeguard
against arbitrary action, the researcher is doubtful whether this will actually curb the
instances of handcuffing, as it appears fairly convenient for the police officer to record a
credible sounding reason if he so desires. Perhaps, instead of merely mandating reasons for
handcuffs, the level of accountability of the police should be increased. Another instance of
unnecessary restraint is where the arrested persons are beaten or subjected to other forms of

8
1987 CriLJ 339.

9
(1990) 3 SCC 119.

10
(1995) 3 SCC 743.
8
torture. For example, before the hearing of a case against a police officer, the complainant
and his witnesses were arrested and then beaten up thoroughly, despite the fact that they did
not evade or attempt to evade their arrest. The Court held the arrest to be dishonest and
fraudulent.

It is therefore clear that the Courts of this country have recognized that arrested persons have
the right to be treated with dignity. Thus, any violation of this provision is punishable under
Section 220 of the Indian Penal Code. It is also punishable under Section 29 of the Police
Act, as it becomes necessary to consider whether a police officer acting in a manner
suggestive of exceeding his powers, was in fact aware that what he was doing was violative
of the law.

When a person is arrested, the most obvious question that will arise in his mind is ‘Why?’
After a while, once the initial shock of the arrest subsides, the foremost question will be
‘How can I get out?’. Thus, Section 50 of the Cr.P.C. specifically provides that when a
police officer arrests a person without a warrant, he must forthwith communicate to him the
full particulars of the offence for which he is arrested or other ground for arrest. This Section
also provides that when a police officer arrests any person not accused of a non-bailable
offence without a warrant, he shall inform the person so arrested of his entitlement to be
released on bail so that he may arrange for bail and for sureties, if required, on his behalf.

Thus, under this Section the arresting officer is bound to inform the arrested person the
grounds for his arrest, including the full details of the offence for which he has been arrested
and whether or not he is entitled to bail. A corollary to this principle is that if a subordinate
officer is deputed by a senior officer to arrest a person, then before making the arrest, he shall
notify the person to be arrested the substance of the written order given by the senior police
officer specifying the offence or other cause for which the arrest is to be made. If an arrest is
made without complying with these requirements, then the arrest will be deemed illegal and
will make the arresting officer liable to all remedies that are available in the case of an illegal
arrest.11

It is also important to note that this Section is in conformity with Article 22(1) of the
Constitution, which provides that no person on arrest shall be detained without being

11
M. R. Mallick, B. B. Mitra on the Code of Criminal Procedure, 1973, Kamal Law House, Calcutta,
1987, p. 198.

9
informed of the grounds for such arrest, as soon as possible. In re Madhu Limaye12, the
Supreme Court held that the requirements of Article 22(1) are meant to afford the earliest
opportunity to the arrested person to remove any mistake, misapprehension or
misunderstanding in the minds of the arresting authorities. They also held that these
provisions are necessary so that the arrested person knows what exactly the accusation
against him is so that he may consult a legal practitioner and be defended by him. Thus, it has
been said that this provision embodies the fundamental safeguard for the personal liberty of
the arrested person.
There are similar provisions in the Constitutions of the United States of America as well as in
the Japanese Constitution. In England, whenever an arrest is made without a warrant, the
arrested person has a right to be informed not only that he is being arrested but also of the
grounds for the arrest. It would be useful to cite the case of Christie v. Leachinsky  13where
the House of Lords held that an arrest without a warrant can be justified, either by a
policeman or by a private person, only if it is an arrest on a charge which is made known to
the person arrested unless the circumstances are such that the person arrested must know the
substance of the alleged offence or where he forcibly resists arrest. Thus, this principle of law
where the arrested person has the right to be informed of the grounds for his arrest appears to
be well established and hence, merits considerable consideration.
In Vikram v. State 14the Allahabad High Court held that the arresting officer is supposed to
record in the police projects the particulars and grounds of arrest of a person and is also
supposed to mention whether he has informed the same to the arrested person. The
information to be given to the arrested person should be such that he must know the reason
and fact leading to his arrest. The Court also held that while it is difficult to prescribe a
particular form in which such information must be communicated to the arrested person, the
bare facts leading to his arrest must be given to him. He must also know the date, time and
place of the alleged offence. The Court held that this is a Constitutional safeguard and hence,
the arrested person is well within his rights to point out whether such provisions have been
violated.
Further, as has been mentioned earlier, communication of the grounds of arrest is mandatory.
Without knowing why he has been arrested, the concerned person will not be able to take

12
AIR 1969 SC 1014.

13
[1947] 1 All ER 567.

14
1996 CriLJ 1536.
10
necessary steps for freeing himself. The case of Govind Prasad v. State of West BengaL
15
held that the provisions of Section 50 of the Cr.P.C. are material and cannot be overlooked
as it brings the law in conformity with Article 22(1) of the Constitution. The Court further
held that this Section confers a valuable right to the arrested person and non-conformity with
its mandatory provisions would lead to non-conformity with the procedure established by
16
law. Ashok v. State upheld this case wherein, the Madhya Pradesh High Court held that the
provisions of Section 50 are in conformity with Article 22(1) and non-compliance with the
mandatory provisions of the Code amounts to non-compliance with the procedure established
by law and thus, renders the arrest and detention of the person concerned illegal.
It has also been held in several cases that where a person is arrested during the commission of
the offence, then it is not necessary to communicate to him the grounds of his arrest as it
appears reasonable to assume that in such circumstances the arrested person will be well
aware of the reasons for his arrest. This was held in Om Prakash Dwivedi v. State 17Here the
Allahabad High Court held that it is important that the person concerned must be fully aware
of the reasons for his detention. However, if a person is apprehended at the spot while
committing the crime it must be supposed that he knows the reasons for his detention. Thus,
in these cases the failure of the police authorities to inform him of the reasons for his arrest
will not affect the legality of such arrest and hence, the arrest cannot be challenged on the
grounds of violation of Article 22 or Section 50 of the Cr. P.C.
The question that arises now is what period of time can be considered as ‘soon’? Must the
grounds of arrest be communicated immediately after arrest or must they be communicated as
soon as may be practicable? In D. P. Ghosh v. State of West Bengal 18the Supreme Court
held that while the object of communicating the grounds of arrest is to enable the concerned
person to make a representation against the arrest, communicating the grounds of arrest ‘as
soon as may be’ must be interpreted in the correct context. The Court held that the grounds of
arrest must be conveyed as early as practicable and without avoidable delay. In Vimal
Kumar Sharma v. State of Uttar Pradesh the 19High Court held that the words ‘as soon as
may be’ do not mean that the grounds of arrest must be communicated immediately at the
15
1975 CriLJ 1249.

16
1987 CriLJ 1750.

17
1996 CriLJ 603.

18
(1972) 2 SCC 656.

19
1995 CriLJ 2335.
11
time of arrest. They should be brought to the knowledge of the arrested person as soon as
possible. However, the researcher believes that the grounds of arrest must be informed to the
person at the time of arrest itself. If it is left open to the arresting authorities to communicate
the grounds whenever they find the time to, as the tone of these judgements lead the
researcher to believe, then it opens the doors to exercise of discretionary powers. This may
result in a situation where the arrested person is forced to live in ignorance of his offence and
hence, is deprived of a reasonable opportunity to clarify any mistake that may have been
made.
Another question that arises is what is meant by communication of the grounds of arrest?
Must it be in writing or is oral communication sufficient? Section 50(1) of the Cr.P.C. does
not specify that the grounds of arrest need to be brought to the notice of the arrested person in
writing. Thus, this leads the researcher to believe that as long as the grounds of arrest are
communicated, be it oral or in writing, it is sufficient, based on the conjecture that the
emphasis is on communication. As long as it can be proved that the arrested person is aware
of the particulars of the offence for which he has been arrested, any form of communication
should be sufficient. However, it was held in Ajit Kumar v.State of Assam 20that where any
communication about the offence is made orally by the police officer to the person arrested
and the kind of communication is unknown to the extent of whether the full particulars of the
offence were told to the arrested or only the concerned Section was related to him, then under
these circumstances, the arrest made by the police officer is illegal if the oral communication
is not explained. Another aspect that must be kept in mind with regard to communication of
the grounds of arrest is that the communication must be made in a language understood by
the arrested. The researcher believes this to be an essential pre-requisite to communication of
the grounds of arrest. If the arrested person very simply does not understand what is being
communicated to him, then he will not be aware of his rights and hence, this will not result in
compliance of Section 50(1).
Section 50(2) specifies that the arresting authority have to inform the arrested person whether
or not he has the right to bail. Non-compliance with this provision will again result in
illegality of arrest. In Padam Dev v. State of Himachal Pradesh 21the Court held that where
the police had obtained no warrant for the arrest of the accused and at the time of arrest, did
not inform him of his right to bail, such arrest is illegal. The researcher believes that this

20
1976 CriLJ 1303.

21
1989 CriLJ 383.
12
provision has to be observed strictly so that it can be ensured that the arrested person can
avail of bail, if he is so permitted. It is true that such compliance may result in habitual
criminals taking advantage of this provision and thus, continuing to break laws. However, it
would be far worse to allow an innocent man to surrender helplessly to the arresting
authorities without even the bare knowledge of his rights.
Hence, we have seen that the Courts have insisted on strict compliance with the provisions of
Section 50 and the various facets of this provision have been examined. It becomes clear that
if a police officer violates any part of these provisions then, he in fact violates the
Constitution itself. Thus, such omission to inform the arrested person of the reasons for his
arrest amounts not merely to non-compliance with law but, more seriously, non-compliance
with the bedrock of our legal system, the Constitution.

24 HOURS – DEADLINE OR GUIDELINE?

One of the most important rights of an arrested person is that he be produced before a
Magistrate within twenty-four hours of the arrest. This is laid down in Section 57 of the
Cr.P.C. which states that “no police officer shall detain in custody a person arrested without
warrant for a longer period that under all the circumstances of the case is reasonable, and
such period shall not, in the absence of a special order of a Magistrate under Section 168,
exceed twenty-four hours exclusive of the time necessary for the journey from the place of
arrest to the Magistrate’s Court”.

Therefore, when a person is arrested, he must be produced before a Magistrate within twenty-
four hours of the arrest. The Magistrate can pass an order of remand under Section 167 of the
Cr.P.C. for his detention. However, this cannot exceed a term of fifteen days. He can also be
produced before a Magistrate who has the authority to try the case and hence, can remand the
person into custody for a term more than fifteen days but less than sixty days. It must also be
noted that as in the case of Section 50, Section 57 is also in conformity with Article 22(2).
While it may seem superfluous to have the same provisions in the Constitution as well as in
the Cr.P.C., Dr. B. R. Ambedkar stated that by introducing this provision in the Constitution,
there would be a limitation upon the authority of the Parliament as well as the Provincial
Legislatures not to abrogate the rights guaranteed under this provision. 22Thus, by rendering

22
In re Madhu Limaye AIR 1969 SC 1014 (1018).
13
this provision in the nature of a fundamental right, very strict compliance with the provisions
of this Section is mandated as a constitutional right.

If the arresting officer considers that the investigation can be completed within twenty-four
hours, then he may keep the arrested person in custody until the investigation is so
completed. However, if the investigation cannot be completed within twenty-four hours, then
he must produce the arrested before the Magistrate immediately. This principle has been
upheld in the case of Nabachandra Singhv. Manipur Administration.

One may wonder why such a provision has been incorporated into the Cr.P.C. There are
varying theories regarding the object of this Section. It has been observed that the intention of
the Legislature was that an accused person should be brought before a Magistrate competent
to try or commit the case to Sessions with as little delay as possible. It has also been said that
on a perusal of this Section along with Section 167, it becomes clear that the Legislature did
not think it necessary to detain the accused in every case for the purpose of facilitating
investigation and that the law does not favour detention in police custody, except in special
cases. It is the objective of this provision to enable the arrested person to make a
23
representation before a Magistrate. In Dwarkadas v.Ambalal Ganpatram the Court held
that the precautions laid down in this Section are designed to ensure that within twenty-four
hours, some Magistrate will have “seisin” of what is going on and some knowledge of the
nature of the charges against the accused, however, incomplete the information may be.
Another viewpoint is that the right to be brought before a Magistrate within twenty-four
hours of arrest has been created so that arrest and detention are not carried out with the
purpose of extracting confessions or compelling information by means of duress or terror and
those police stations are not used as proxies for prisons. It was held in State of
Punjab v. Ajaib Singh 24that arrests without warrants require more protection than those with
warrants. As a result, the provision that the arrested person should be brought before a
Magistrate within twenty-four hours is particularly desirable because it ensures the immediate
application of a judicial mind to the legal authority of the person making the arrest and
legality of the arrest made by him. The researcher is of the opinion that this provision is very
important. By mandating the production of the accused before a Magistrate, the basic rights
of the accused such as the right against unnecessary restraint, the right to know the grounds
23
28 CWN 850.

24
AIR 1953 SC 10.
14
of arrest as well as the right to bail have been facilitated. Therefore, it becomes possible to
determine whether the arrest itself was valid and legal. Moreover, if the accused is kept in
police custody for more than twenty-four hours, then the danger of the accused being subject
to the vagaries and possible excesses of the police increases and the accused may be
pressurized into saying something that he did not intend to.
One of the oft asked questions in relation to this Section is what constitutes twenty-fours? At
what point does the clock start ticking? In Gharban Ali v. Intelligence Officer25, the Bombay
High Court held that mere taking into custody for the purpose of enquiry does not amount to
arrest and that the time of twenty-four hours must be calculated from the time of formal
arrest. On a reading of this judgement, the researcher doubts whether such an interpretation is
in keeping with the spirit of the Cr.P.C. section that clearly aims at minimal curtailment of
liberty. If the police officer is given the freedom to compute the twenty-four hours from the
time of “formal” arrest then, the researcher believes that the scope for “using” this Section to
his advantage is very wide. The police officer may deem that the formal arrest of the accused
has happened only after hours of interrogation and of keeping the accused confined within the
limits of the police station. If arrest is understood as a curtailment of the accused person’s
liberty, would this also not amount to arrest? Thus, the researcher believes that the 24-hour
clock should start from time the police curtails the accuser’s liberty. This contention has been
supported in Iqbal Kaur Kwatra v. Director General of Police 26where the Andhra Pradesh
High Court held that a person in custody cannot be detained without producing him before
the Magistrate under the pretext that no actual arrest has taken place.
As has been mentioned above, strict compliance with the provisions of this Section is
required. Failure to comply will result in wrongful detention of the accused and the police
officer is liable under Section 340 of the Indian Penal Code. The accused is also entitled to
move a writ of habeas corpus directing his release. In the case of Sharifbai v. Abdul Raza
27
the High Court held that the police officer who fails to produce the arrested person before a
Magistrate within twenty-four hours is guilty of wrongful detention of the person whom he
has arrested. The Court also held that once the arrested person is produced before the
Magistrate within twenty-four hours and the Magistrate, after applying his mind remands him
to detention, then the detention of the arrested person after the order of remand by the

25
1996 CriLJ 2420.

26
1996 CriLJ 2600.

27
AIR 1961 Bom 42.
15
Magistrate is no longer detention by the police officer himself and that he is merely carrying
our the orders of the Magistrate. In Khatri (II) v. State of Bihar 28the Supreme Court clearly
laid down that the provision in Article 22(2) inhibiting detention without remand is very
healthy as it enables the Magistrates to keep check over the police investigation and that it is
necessary that the Magistrates enforce this provision. Wherever it is found disobeyed, the
Judiciary should come down heavily on the police.
Thus, after having examined the different provisions that guarantee different rights to the
accused, it emerges that these rights cannot be abrogated by the police officers and that if
they do happen to violate any of these rights, they are not only committing a crime under the
Indian Penal Code but are also violating fundamental rights guaranteed by the Indian
Constitution. Hence, there is no place for laxity on the part of the police force in ensuring that
the arrested persons avail of their rights.

CONCLUSION
This project has examined three provisions of the Cr.P.C. and the related case law in detail.
Having done so, it may appear that the law of the land is very clear – the rights of the
accused, especially the arrested person, must be protected. The final question that must be
asked at this point is, is this a reality?

It is generally believed that in spite of the various safeguards in the Cr.P.C. as well as the
Constitution, the power of arrest given to the police is being misused till this day. 29It is also
believed that the police often use their position of power to threaten the arrested persons and
take advantage of their office to extort money. There have also been innumerable reports on
custodial violence that lead many to believe that deprivation of basic rights of the arrested
persons has become commonplace nowadays. While it can be said that the police must do all
they can to curb law breakers and that, these incidences must be understood in the context of
the times and stress under which the police work, it cannot be argued that arrested persons are
not entitled to the minimal of rights simply because they have allegedly broken the law and
are therefore “arrested”. Arrest or not, an accused person is still a human being entitled to
fundamental rights.

28
(1981) 1 SCC 627.

29
177th Law Commission Report, “Consultation Project on the Law relating to Arrest”, at (visited on
20TH MARCH 20011)<http://lawcommissionofindia.nic.in/reports/177rptp2.pdf>.

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The Law Commission of India, in its 177 th Report, has acknowledged the fact that the law
of arrest in itself is a balancing act between the rights of the individual and the rights of the
society. According to the same Report, after the D. K. Basu judgement, the abuse of power
by the police has decreased drastically. However, after a study conducted by the National
Human Rights Commission, the Law Commission found that the number of arrests for petty
offences is more than those for serious offences. Also, in a revolutionary move, the
Commission recommended that no arrests should be made for what are now classified as
bailable offences. Instead, only a summons ought to be issued for appearance of the accused
in Court. Further the Commission also suggested that arrests be made only where it is
necessary in order to infuse confidence among the “terror stricken victims”. The Commission
also approved of the recommendations made by the National Police Commission, as
mentioned earlier. Another proposal was that no person should be arrested for the mere
purpose of questioning as such arrest would amount to unlawful detention. Thus, it appears
that the Commission would rather that arrests should be avoided as far as possible.
The Mallimath Committee in its Report on the reforms in the Criminal Justice System has
stated that the accused has the right to know the rights given to him under law and how to
enforce such rights. There have also been criticisms that the police fail to inform the persons
arrested of the charge against them and hence, let the arrested persons flounder in custody, in
complete ignorance of their alleged crimes. This has been attributed to the Colonial nature of
our Criminal Justice System where the duty of arrest was thrust upon the Indian officers
while the Britishers drew up the charge against the accused. Thus, it is entirely possible that
the English origins of the Indian Criminal Justice system may have resulted unwittingly in the
rights of the arrested persons falling through the cracks.

Having examined these provisions and also the recommendations of various committees, it
seems to the researcher that in the final analysis, it is the duty of the police to protect the
rights of society. It must be remembered that this society includes all people, including the
arrested. Thus, it is still the police’s duty to protect the rights of the arrested. Hence, in light
of the discussed provisions, a police officer must make sure that handcuffs are not used
unnecessarily, that the accused is not harassed needlessly, that the arrested person is made
aware of the grounds of his arrest, informed whether he is entitled to bail and of course,
produced before a Magistrate within twenty-four hours of his arrest. While these are not the
sum total of the rights available to the arrested accused, these are the stepping-stones and the
basic rights he is entitled to.
17
Bibliography

Websites:

1. www.pucl.org
2. www.hinduonnet.com
3. www.lawcommissionofindia.nic.in
4. www.mightylaws.in

Books:
1. D. D. Basu, Criminal Procedure Code, 1973, Ashoka Law House, New Delhi, 2001.
2. R. V. Kelkar, Criminal Procedure, Eastern Book Co., Lucknow, 1998.
3. Ratanlal and Dhirajlal, The Code of Criminal Procedure, Wadhwa and Co., New
Delhi, 1998.

Miscellaneous:

18
1. The Constitution of India, 1950.
2. 177th Law Commission Report, “Consultation Project on the Law relating to Arrest”at
(visited on 16th July, 2003) <http://lawcommissionofindia.nic.in/reports/177rptp2.pdf>.

19