This project aims to cover the law relating to arrest in India, in comparison with other jurisdictions along with International Conventions. This would facilitate in understanding not only the law that is applicable in India, but also facilitates to incorporate the enhanced manner of dealing with the issue of rights of the arrested persons, along with resolving the problems that are faced by the authorities in implementation.
An attempt would be made to look into the decisions that are rendered by the Courts in order to understand the implication of the law, the guidelines if any, and the role that the Judiciary plays in improving the mechanism of the law relating to arrest. The law in the books, Courts is one, and that what is in practice is another. To this end, there would be an attempt to look into the practical aspect of the implementation of the law.
There is always a scope for reforms in the law, therefore at the end of the paper, an attempt would be made for the need and scope of the reforms as to the law of arrest, so that it is beneficial not only for the persons so arrested, but also for the authorities which have the duty to protect the society. Scope and Limitation: The scope of this project is to cover various codes like that of Criminal Procedure Code, International conventions and other local and special laws. Along with this an attempt would be made as to cover the decisional law in detail and comprehensive manner.
The scope of this project is extended to look into the guidelines suggested by the judiciary and in what manner they are being implemented. Field research has been undertaken so as to understand the reason for the discrepancy between law in book and practice. It has not been possible for the researchers to cover all the laws that have the provision regarding arrest and a sample of the laws have been taken to understand the concept and the practice. The same applies for the decisions wherein only a few cases have been dealt which have a major impact on the law relating to arrest.
Due to practical inconveniences only three officials in the field have been interviewed. At the same time it would be mentioned that the successful effort was made to ensure that such officials were from different positions of responsibilities. Sources of Information: For the purposes of this project both primary and secondary sources of information have been used. The primary sources were the fieldwork and the experiential learning of two of the researchers. The secondary sources that were being utilized were the books, commentaries, reporters, and journals and as well internet based resources.
Mode of Citation- A uniform mode of citation has been used adopted all throughout the project. Mode of fieldwork – For the purposes of fieldwork, relevant persons in authority were identified and appointment was sought with them. The researchers faced a great difficulty in this regard, as the period of research coincided with the local municipal elections, and the busy schedule of the senior police officers, this became a great hindrance in the researchers effort to meet Mr. V. V Bhaskar & Mr. Gopal Hosur, and Mr. Krishanmurthy all senior policed officers in Karnataka cadre.
For the few people with whom an appointment could be sought, a questionnaire was prepared by us, as an enabling guideline for the researches so as to be sure that relevant information is gathered. During the interview an attempt was made to ascertain the knowledge of these officials relating to the procedure, mandatory requirements, judicial guidelines. At the same time the researchers attempted to understand the practical problems that are face by these official, while executing arrest in the interest of the society.
It becomes abundantly clear that the arrest should be affected only in cases where there it is absolutely necessary and to have prompt arrest in cases of danger to the society. 6 The reason being that the fundamental right to personal liberty is violated by the due procedure established by law. 7 Another question that comes to the mind is that of use of force while accomplishing the process of arrest, should there be use of force at all? If yes, then how much use of force is justified?
It has been an accepted principle that there has to be use of force in cases where there is no voluntary submission and the arrest is necessary. Justification for such use of force is that there is a duty on the police officer towards the society too. The question involved was the interpretation of S. 2(4) and 2(6) of the Criminal Law Act, 1967. The subsection 6 confers a right of entry on premises by a constable for the purpose of exercising the power of arrest conferred on him by sub section 4 that reads as follows:
'Where a constable, with a reasonable cause, suspects that an arrestable offence has been committed, he may arrest without warrant anyone whom he, with reasonable cause, suspects to be guilty of the offence. ' Arrest is a continuing act; it starts with the arrestor taking a person into the custody (by action or words restraining him from moving anywhere beyond the arrestor's control), and it continues until the person so restrained is either released from custody or having been bought before a magistrate, is remanded in custody or having been, remanded in custody by the magistrates judicial act.
Strictly speaking, the arrestor may change form time to time during a continuous period of custody since the arrestor is a person who at any particular time is preventing the arrested person from moving himself from the custody. Secondly, it should be noted that the mere act of taking a person into custody does not constitute an arrest unless that person knows, either at time when he first taken into custody or as soon thereafter as it is reasonably practicable to inform him, on what charges or on suspicion of what offence he is being arrested.
The wording of the subsection under which he acted is may arrest without warrant, this leaves with him an executive discretion whether to arrest her or not. The exercise of such discretion must be a real exercise of the discretion. 14 The first of the principles is that the discretion must be exercised in good faith. The other side of the coin is whether the investigation, although diligently pursued, fails to produce prima facie proof which must be inform of an evidence that would be admissible in a court of law.
When the police have reached a conclusion that prima facie proof of the arrested person's guilt is unlikely to be discovered by further inquiries of him or other potential witness, it is their duty to release him from custody unconditionally. There is inevitably the potentiality of the conflict between public interest in preserving the liberty of the individual and the public interest in the detection of crime and bringing to justice those who committed it. Suspicion arises at or near the starting point of the investigation of which obtaining the prima facie proof is the end.
16 When such proof has been obtained, the police case is complete; it s ready for trail and passes on to the next stage. It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if the arrest before it was forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion. In exercise many factors have to be considered besides the strength of the case.
The possibility of escape, the prevention of further crime and obstruction of police enquiry are examples of those factors with which all judges who have had to grant or refuse bail are familiar. Suspicion in its ordinary meaning is a state of conjecture or sunrise where proof is lacking. "I suspect but I cannot prove". Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trail and passes on to its next stage.