Human rights of Arrested person.

1. HUMAN RIGHTS
OF ARRESTED
PERSON.
Sebi S
Govt. Law College
Ernakulam

2. INTRODUCTION
• All human beings have the right to enjoy
respect for their liberty and security.
• Every person has to be treated as a human
being first, irrespective of the fact that such
person is a criminal.
• Human rights are rights inherent to all human
beings, regardless of race, sex, nationality,
ethnicity, language, religion or any other
status.

3. ARREST
• Arrest involves restriction of liberty of
a person arrested and therefore,
infringes the basic human rights of
liberty.
• Arrest is a form of State constraint
applied to a person, during which the
person is placed under detention, is
imprisoned and is deprived of his right
to move freely.

4. HUMAN
RIGHTS
• Human rights include the
right to life and liberty,
freedom from slavery and
torture, freedom of
opinion and expression, the
right to work and
education, and many
more. Everyone is entitled
to these rights, without
discrimination.
◦ The characteristic of our
present society is that
even the rights of the
accused are deemed to be
sacrosanct, even though he
is charged with an offence.

5. • The term arrest means
apprehension of a person
by legal authority so as to
cause deprivation of
liberty.
• Arrest means 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.

6. • International law outlaws
unacknowledged arrests and
detentions.
• States are accountable for all persons
in their custody.
• In particular, the date, time and
location of all arrest and detentions
must be available to families, lawyers
and all competent judicial and other
authorities at all time.
• Involuntary or enforced disappearances
and unacknowledged arrest and
detentions constitute particularly
serious violations of fundamental human
rights, including the rights to liberty
and security of the person.

7. THE
CONVENTION
AGAINST
TORTURE
AND OTHER
CRUEL,
INHUMAN OR
DEGRADING
TREATMENT
OR
PUNISHMENT
• The Convention against Torture
and Other Cruel, Inhuman or
Degrading Treatment or
Punishment (commonly known as
the United Nations Convention
against Torture (UNCAT)) is
an international human rights
treaty.
• It follows the structure of
the Universal Declaration of
Human
Rights (UDHR), International
Covenant on Civil and Political
Rights (ICCPR) and
the International Covenant on
Economic, Social and Cultural
Rights (ICESCR), with a preamble
and 33 articles.

8. UNIVERSAL
DECLARATION
OF HUMAN
RIGHTS.
• The most important global
human rights instrument is
the Universal Declaration of
Human Rights, adopted in
1948 by the General
Assembly of the UN.
• The UDHR consists of a
preface and 30 Articles
setting forth the human
rights and fundamental
freedoms to which all men
and women everywhere in the
world are entitled, without
any discrimination and
Freedom from Arbitrary
Arrest and Exile is one
among those Articles.

9. THE CONVENTION AGAINST TORTURE AND
OTHER CRUEL, INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT
• Article 10 deals with treatment of any individual subjected to any
form of arrest, detention, or imprisonment, regarding the
prohibition against torture.
• Parties also must keep interrogation rules, instructions, methods,
and practices under systematic review regarding individuals who are
under custody or physical control in any territory under their
jurisdiction, in order to prevent all acts of torture (Article 11).
• Parties are also obliged to prevent all acts of cruel, inhuman, or
degrading treatment or punishment in any territory under their
jurisdiction, and to investigate any allegation of such treatment
(Article 16).

10. UNITED
NATIONS
PROGRAMME
ON CRIME
PREVENTION
AND
CRIMINAL
JUSTICE.
• The United Nations
Programme on Crime
Prevention and Criminal
Justice, incorporates
concept of arrest and
arrest has been defined as
"the act of depriving a
person under governmental
authority for the purpose
of taking that person into
detention and charging the
person with a criminal
offence".

11. INTERNATIONAL COVENANT ON
CIVIL AND POLITICAL RIGHTS.
• Article 9 of the International Covenant on Civil
and Political Rights reads as follows:
• “Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary
arrest or detention. No one shall be deprived of
his liberty except on such grounds and in
accordance with such procedure as are established
by law.”
• Anyone who is arrested shall be informed, at the
time of arrest, of reasons for his arrest, and shall
be promptly informed of any charges against him.

12. INTERNATIONAL COVENANT ON
CIVIL AND POLITICAL RIGHTS.
• Anyone arrested or detained on a criminal charges
shall be brought promptly before a judge or other
officer authorized by law to exercise judicial power
and shall be entitled to trial within a reasonable time
or to release.
• It shall not be the general rule that persons awaiting
trial shall be detained in custody, but release may be
subject to guarantee to appear for trial, at any other
stage of judicial proceedings, and, should occasion
arise, for execution of the judgement.

13. INTERNATIONAL
COVENANT ON
CIVIL AND
POLITICAL
RIGHTS.
• Anyone who is deprived of
his liberty by arrest or
detention shall be entitled to
take proceedings before a
court in order that such
court may decide with-out
delay on the lawfulness of
his detention and order his
release if the detention is
not lawful.
• Anyone who has been victim
of unlawful arrest or
detention shall have an
enforceable right to
compensation.

14. INTERNATIONAL COVENANT
ON CIVIL AND POLITICAL
RIGHTS.
Article 10(1) of the International
Covenant on Civil and Political Rights
lay down that “All persons deprived
of their liberty shall be treated with
humanity and with respect for the
inherent dignity of the human
person”.

15. THE MUKONG CASE
 In this case, the applicant alleged that he had
been arbitrarily arrested and detained for
several months, an allegation rejected by the
State party on the basis that the arrest and
detention had been carried out in accordance
with the domestic law of Cameroon.
 It was concluded that article 9(1) had been
violated, since the detention “was neither
reasonable nor necessary in the circumstances
of the case”.

16.  For instance, the State party had not shown that
the remand in custody was “necessary ... to
prevent flight, interference with evidence or the
recurrence of crime” but had “merely contended
that the arrest and detention were clearly
justified by reference to” article 19(3) of the
Covenant, which allows for restrictions on the
right to freedom of expression.
 However, it was considered that “national unity
under difficult political circumstances cannot be
achieved by attempting to muzzle advocacy of
multi-party democracy, democratic tenets and
human rights”, and that the right to freedom of
expression had therefore been violated.
 Consequently, it was also concluded that the
author’s arrest and detention were contrary to
article 9(1) of the Covenant.

17. AFRICAN CHARTER ON
HUMAN RIGHTS.
• Article 6 of the African Charter on Human and
Peoples’ Rights provides that:
• “Every individual shall have the right to liberty
and to the security of his person. No one may be
deprived of his freedom except for reasons and
conditions previously laid down by law. In
particular, no one may be arbitrarily arrested or
detained.”

18. AMERICAN CONVENTION
ON HUMAN RIGHTS.
• Article 7 of the American Convention on Human
Rights provides, inter alia, that:
• “ Every person has the right to personal liberty
and security.
• No one shall be deprived of his physical liberty
except for the reasons and under the conditions
established beforehand by the constitution of the
State Party concerned or by a law established
pursuant thereto.
• No one shall be subject to arbitrary arrest or
imprisonment.”

19. EUROPEAN
CONVENTION
ON HUMAN
RIGHTS
• The European Convention on Human
Rights is the only treaty that
specifically enumerates the grounds
which can lawfully justify a deprivation
of liberty in the Contracting States.
This list is exhaustive and “must be
interpreted strictly”.
• Article 5 reads:
• “Everyone has the right to liberty and
security of person. No one shall be
deprived of his liberty save in the
following cases and in accordance with a
procedure prescribed by law: It
includes-

20. EUROPEAN CONVENTION ON
HUMAN RIGHTS
• The lawful detention of a
person after conviction by
a competent court.
• The lawful arrest or
detention of a person for
non-compliance with the
lawful order of a court or
in order to secure the
fulfilment of any obligation
prescribed by law.

21. EUROPEAN CONVENTION
ON HUMAN RIGHTS
The lawful arrest or detention of a person
effected for the purpose of bringing him
before the competent legal authority on
reasonable suspicion of having committed an
offence or when it is reasonably considered
necessary to prevent his committing an
offence or fleeing after having done so.
 The detention of a minor by lawful order
for the purpose of educational supervision or
his lawful detention for the purpose of
bringing him before the competent legal
authority.

22. EUROPEAN
CONVENTION
ON HUMAN
RIGHTS.
• The lawful detention of
persons for the prevention of
the spreading of infectious
diseases, of persons of
unsound mind, alcoholics or
drug addicts or vagrants;
• The lawful arrest or
detention of a person to
prevent his effecting an
unauthorized entry into the
country or of a person against
whom action is being taken
with a view to deportation or
extradition.”

23. EUROPEAN CONVENTION
ON HUMAN RIGHTS.
◦ Article 5(5) of the European Convention provides
that “everyone who has been the victim of arrest
or detention in contravention of the provisions of
this article shall have an enforceable right to
compensation”.
◦ However, where the applicants have been arrested
and detained lawfully under domestic law but in
violation of article 5 of the Convention, there has
been a violation of article 5(5) if they had no
enforceable claim for compensation before the
domestic courts.

24. ROLE OF
EUROPEAN
COURTS.
• The European Court has
held that Article 5(1)(c) of
the European Convention
“permits deprivation of
liberty only in connection
with criminal proceedings”.

25. UNITED
NATIONS
HUMAN
RIGHTS
STANDARDS
AND
PRACTICE
FOR THE
POLICE.
• Everyone has the right to
liberty and security of the
person and to freedom of
movement.
• No one shall be subjected to
arbitrary arrest or detention.
• No one shall be deprived of his
or her liberty except on such
grounds and in accordance
with such procedures as are
established by law.
• Anyone who is arrested shall
be informed, at the time of
the arrest, of the reasons for
his or her arrest.
• Anyone who is arrested shall
be promptly informed of any
charges against him or her.

26. UNITED NATIONS HUMAN
RIGHTS STANDARDS AND
PRACTICE FOR THE POLICE.
• Anyone who is arrested shall be brought
promptly before a judicial authority.
• Anyone who is arrested has the right to appear
before a judicial authority for the purpose of
having the legality of his or her arrest or
detention reviewed without delay, and shall be
released if the detention is found to be unlawful.

27. UNITED NATIONS HUMAN RIGHTS
STANDARDS AND PRACTICE FOR THE
POLICE.
• Anyone who is arrested has the right to trial within a
reasonable time or to release.
• Detention pending trial shall be the exception rather
than the rule.
• All arrested or detained persons shall have access to a
lawyer or other legal representative and adequate
opportunity to communicate with that representative .
• A record of every arrest must be made and shall
include: the reason for the arrest; the time of the
arrest; the time the arrested person is transferred to
a place of custody; the time of appearance before a
judicial authority.

28. OTHER LEGAL INSTRUMENTS
The Body of Principles for the Protection of All
Persons under any Form of Detention or
Imprisonment, adopted by the General Assembly
in 1988;
The Declaration on the Protection of All Persons
from Enforced Disappearance, adopted by the
General Assembly in 1992;
The Principles on the Effective Prevention and
Investigation of Extra-legal, Arbitrary and
Summary Executions, recommended by Economic
and Social Council resolution 1989/65.

29. UNIVERSAL LEGAL
RESPONSIBILITY:
ALL STATES ARE
BOUND BY THE
LAW
Article 9(1) of the
International Covenant
on Civil and Political
Rights, Article 6 of the
African Charter of
Human and Peoples’
Rights, Article 7(1) of
the American
Convention on Human
Rights and Article 5(1)
of the European
Convention on Human
Rights guarantee a
person’s right to
“liberty” and
“security”.

30. ROLE OF INTERNATIONAL
COURT OF JUSTICE
The International Court of Justice stated
in its dictum in the Hostages in Tehran
case, “wrongfully to deprive human beings
of their freedom and to subject them to
physical constraint in conditions of
hardship is in itself incompatible with the
principles of the Charter of the United
Nations, as well as with the fundamental
principles enunciated in the Universal
Declaration of Human Rights”, Article 3
of which guarantees “the right to life,
liberty and security of person”.

31. Not withstanding that a State may not
have ratified or otherwise adhered to
any of the preceding human rights
treaties, it is nonetheless bound by
other legal sources to ensure a person’s
right to respect for his or her liberty
and security.
The notion of security also covers
threats to the personal security of non-
detained persons. States cannot be
passive in the face of such threats, but
are under a legal obligation to take
reasonable and appropriate measures to
protect liberty and security of person.

32. ARREST UNDER
INDIAN
CONSTITUTION
AND CODE OF
CRIMINAL
PROCEDURE.

33. ARREST
Arrest is "the act of taking a person into
custody under the authority of the law or by
compulsion of another kind and includes the
period from the moment he is placed under
restraint up to the time he is brought
before an authority competent to order his
continued custody or to release him."
Arrest is not defined in the Code of Criminal
Procedure but it means to take or keep in
custody by authority of law.
The elaboration of the term can be said to
restraint and seizure of a person by someone
(e.g., a police officer) acting under legal
authority.

34. THERE ARE TWO TYPES OF
RIGHTS AVAILABLE TO THE
ARRESTED PERSON
RIGHTS AT THE TIME OF THE ARREST.
Right to remain silence.
Right to Know the Grounds of Arrest.
Information Regarding the Right To Be
Released on Bail.
Right to be taken before a Magistrate
without delay.

35. RIGHTS AT THE TIME OF
THE ARREST.
Right to be taken before Magistrate
or officer in charge of Police
Station.
 Right to be brought before the
court without any delay.
Right not to remain in custody for
more than 24 hours without any
judicial inquiry.

36. RIGHTS AT THE TIME OF
TRIAL
 Right to Fair Trial.
 Right to speedy trial.
 Right to Consult a Legal Practitioner.
 Rights of Free Legal Aid.
 Right to Be Examined By A Medical
Practitioner

37. IMPORTANT
PROVISIONS
AT A
GLANCE.
RIGHT TO KNOW THE GROUNDS
OF ARREST
Equality before law - Article
14 of the Indian
Constitution declares that
"The State shall not deny to
any person equality before
the law or the equal
protection of the laws
within the territory of
India".
Article- 22(1) of the Indian
Constitution stipulates that
no police official can arrest
any individual without
informing the accused the
reason/ ground of his
detainment/ arrest.

38. Section 50 of the Code of Criminal
Procedure (Cr.P.C) says that every police
official with authority to arrest someone
without a warrant must inform the
person getting arrested about the crime
for which he is arrested and other
relevant grounds for the arrest. This is
the duty of the police official which he
cannot refuse.
Section- 50 A of Cr.P.C makes it
compulsory for the person/ police
official arresting a person to inform the
arrest to any of his relatives or even
friends who may have interest in the
same.

39. Section- 55 of Cr.P.C states that in
situations where a police official
authorises his junior to arrest a
person without a warrant, the junior
official must notify the arrested
person of the order of delegation
that is given which must also mention
the crime and the grounds of arrest.
Section- 75 of Cr.P.C states that the
police official executing the warrant
must notify the substance to the
arrested person and furnish the
warrant of the arrest when required.

40.  Article- 22(2) of the Indian
Constitution stipulates that the police
official making an arrest must produce
the arrested person before the
Magistrate within 24 hours of the arrest
failing to do so would make him liable for
wrongful detention.
 Section- 76 of Cr.P.C states that the
arrested person must be produced in
court within 24 hours of his arrest, the
same must exclude the time duration
which is required for the journey from
the place of arrest to the Magistrate
Court.

41. Section- 55 of Cr.P.C states
that in case a police official is
making an arrest without a
warrant, then he must produce
the person arrested without
any unnecessary delay before
the Magistrate with
jurisdiction or before a police
officer in charge of the police
station, depending upon the
conditions of the arrest.

42. Section- 50 (2) of Cr.P.C
provides that the arrested
person has the right to get
released on bail by making
arrangement for the sureties
or just inform him of his right
when arrested without a
warrant for an offence other
than a non-cognizable offence.
The legal provision regarding
the right to a fair and just
trial can be extracted from
the Indian Constitution as well
as a lot of Supreme court and
High court judgments since no
specified law has been
stipulated in this regard.

43. Article- 22 (1) of the Indian Constitution
provides that every arrested person has
the right to choose and elect his own
lawyer to defend him in the court of law
for whatever crime he may/ may not have
committed.
Section- 303 of Cr.P.C allows every
alleged convict/ criminal the right to be
defended by a lawyer of his choice even
if the criminal proceedings against him
have already begun.

44. Article- 39A The government in an effort
towards securing justice instituted this
Article to provide free legal aid to people in
need.
Section- 304 of Cr.P.C provides a very
significant right to every accused who is set
to appear before a Sessions Court to
appoint him a lawyer (totally free of cost) at
the expense of the State.

45.  Article- 20(2) Additionally, reiterates that no
person whether accused or not cannot be
compelled to be a witness against himself. This
act of exposing oneself is the principle of self-
incrimination.
 Section- 54 of Cr.P.C asserts that if an
arrested person claims that medical examination
of his body would lead to a detail which would
dismiss the fact of commission of the crime by
him, or some detail that might lead to evidence
towards commission of the crime by some other
person against his body.
 Section- 55A of Cr.P.C asserts that maintaining
reasonable heath care and safety of every
arrested person will be the sole responsibility of
the person (police official) who has the custody
of the accused.

46. Section- 358 of Cr.P.C is another
groundbreaking effort towards the
principle of natural justice where the
arrested person is provided with
compensation when arrested unreasonably.
Section- 41A of Cr.P.C asserts that the
police official must furnish notice to the
person who has supposedly committed a
cognizable offence to appear before him at
a specified time, date and location.

47. • Section 46 of Cr.P.C stipulates the
mode of arrest of an accused person
which includes submission to custody
by physically touching the body.
• Section 49 of Cr.P.C asserts that
the police official must not restrain
or detain the accused without a legal
arrest.

48. • Section- 41B
Every police official authorised to conduct
the investigation/ arrest must supply clear,
visible and valid badge where the name and
designation of the police official is clearly
mentioned .
• Section- 41C Every arrest made by any police
official must be informed to the District and
the State headquarters within 12 hours of any
arrest which also need to be displayed on a
conspicuous board.
• Section 41D entitles an arrested person to
meet an advocate of his choice during
interrogation, though not throughout
interrogation.

49. 1. RIGHT TO SILENCE
• The ‘right to silence’ has been derived
from common law principles.
• It means that normally courts or
tribunals should not conclude that the
person is guilty of any conduct merely
because he has not responded to
questions which were asked by the police
or by the court.
MALIMATH COMMITTEE
• The Justice Malimath Committee in its
report was of the opinion that right to
silence is very much needed in societies
where anyone can be arbitrarily held
guilty of any charge.

50. RIGHT TO SILENCE
UNDER EVIDENCE ACT.
• As per the law of evidence, any statement or
confession made to a police officer is not
admissible in a court of law.
• Right to silence is mainly concerned about
confession. The breaking of silence by the
accused can be before a magistrate but should
be voluntary and without any duress or
inducement.

51. • CONSTITUTIONAL PROVISION
As per Article 20(3) of Constitution of India
guarantees every person has been given a right
against self-incrimination, it states that any
person who has been accused of any offence,
shall not be compelled to be a witness against
himself.

52. CASE LAW
Nandini Sathpathy v. P.L.Dani
In this case, the Supreme Court
issued the following directives:
• No one can forcibly extract
statements from the accused and
that the accused has the right to
keep silent during the course of
interrogation (investigation).
• An accused person cannot be
coerced or influenced into giving a
statement pointing to her/his guilt.
• The accused person must be
informed of her/his right to
remain silent and also of the right
against self incrimination.

53. • The person being interrogated has the
right to have a lawyer by her/his side if
s/he so wishes.
• An accused person must be informed of
the right to consult a lawyer at the time
of questioning, irrespective of the fact
whether s/he is under arrest or in
detention.
• The Supreme Court again in the year
2010, held that narco-analysis, brain
mapping and lie detector test are in
violation of Article 20(3) of the
Constitution of India.

54. 2.RIGHT
OF NOT
BEING
DETAINED
FOR MORE
THAN 24
HOURS.
• The arresting authority is
required to produce the
arrested person without
unnecessary delay before the
Magistrate and in no case
such delay shall be more than
24 hours.
• The stipulated period of 24
hours excludes the time
necessary for the journey
from the place of arrest to
Magistrate’s Court. If this
requirement is not followed
by the arresting authority
then the arrest will be
deemed to be unlawful.

55. • Section 56 of Cr.P.C. states that “Person
arrested to be taken before Magistrate or
officer in charge of police station- A police
officer making an arrest without warrant
shall, without unnecessary delay and subject
to the provisions herein contained as to bail,
take or send the person arrested before a
Magistrate having jurisdiction in the case, or
before the officer in charge of a police
station”.
• Section 76 of Cr.P.C. states that “Person
arrested to be brought before Court without
delay- The police officer or other person
executing a warrant of arrest shall (subject to
the provisions of section 71 as to security)
without unnecessary delay bring the person
arrested before the Court before which he is
required by law to produce such person”.

56. 3. RIGHT TO
CONSULT A
LAWYER
Article 22(1) of the
Constitution recognizes the
arrested person’s right to
consult and defended by a
legal practitioner as a
fundamental right.
Section 50(3) of the Code
also lays down that the
person against whom
proceedings are initiated
has a right to be defended
by a pleader of his choice.
This starts as soon as the
person is arrested. The
consultation with the
lawyer may be in the
presence of police officer
but not within his hearing.

57. CASE LAW
• Khatri and Others v. The State of
Bihar
• The Supreme Court in this case held that the state is
under a constitutional obligation to provide free legal
aid to an indigent accused person as is implicit in
Article 21 of the Constitution .
• This right does not come into picture not only at the
time of trial but exists at the time when the accused
is produced the first time before the magistrate, as
also when remanded from time to time.
• The Supreme Court further states that failure on the
part of the state to inform the accused of this right
will vitiate the whole process of trial.

58. Therefore, a duty is imposed on all
magistrates and courts to inform the
indigent accused of his right to get
free legal aid.
SUK DAS v. UNION TERRITORY OF
ARUNACHAL PRADESH
 The Apex Court has gone a step
further in this case, wherein it has
laid down that this constitutional
right cannot be denied if the accused
failed to apply for it.
 It is clear that unless refused,
failure to provide free legal aid to an
indigent accused would vitiate the
trial entailing setting aside of the
conviction and sentence.

59. 5. RIGHT TO
BE EXAMINED
BY A MEDICAL
PRACTITIONER
 Section 54 of Cr.P.C states that
when an arrested person alleges that
the examination of his body will
afford evidence which will disprove
the commission by him of any
offence or which will establish the
commission by any other person of
any offence against his body, the
Magistrate shall, if requested by the
arrested person direct the
examination of the body of such
person by a registered medical
practitioner.
However, the request shall not be
made for the purpose of vexation or
delay or for defeating the ends of
justice.

60. 6. Right To
A Fair Trial
The Constitution under Article
14 guarantees the right to
equality before the law. The
Code of Criminal Procedure
also provides that for a trial
to be fair, it must be an open
court trial.
This provision is designed to
ensure that convictions are
not obtained in secret.
In some exceptional cases the
trial may be held in camera.

61. 7. RIGHT
TO
SPEEDY
TRIAL
This right has not been specifically
mentioned in the Constitution, however,
the SC in the Hussainara Khatoon case
has made it mandatory that the
investigation in the trial must be
conducted “as expeditiously as
possible.”
In cases, wherein the maximum punishment
that can be imposed is 2 years, once the
accused is arrested, the investigation
for the trial has to be completed within
the period of six months or stopped on
receiving an order from the Magistrate,
unless the Magistrate receives and
accepts, with his reasons in writing,
that there is cause to extend the
investigation.

62. SUPREME
COURT’S
GUIDELINES
IN D.K.
BASU v.
STATE OF
WEST
BENGAL.
In this judgement, the Supreme
Court had issued instructions to be
followed by the arresting authority
at the time of detention of a person.
They are as under:
The police personnel carrying out the
arrest and handling the interrogation
of the arrestee should bear accurate,
visible and clear identification and
name tags with their designations.
The particulars of all such police
personnel who handle interrogation of
the arrestee must be recorded in a
register.

63. • The police officer carrying out the arrest of the
arrestee shall prepare a memo of arrest at the time
of arrest.
• The memo shall be attested by at least one witness
who may be either a member of the family of the
arrestee or a respectable person of the locality from
where the arrest is made.
• It shall also be counter signed by the arrestee and
shall contain the time and date of arrest.

64. A person who has been arrested or
detained and is being held in custody
in a police station or interrogation
centre or other lock-up, shall be
entitled to have one friend or
relative or other person known to
him or having interest in his welfare
being informed, as soon as
practicable, that he has been
arrested and is being detained at
the particular place, unless the
attesting witness of the memo of
arrest is himself such a friend or a
relative of the arrestee.

65. z
The time, place of arrest and venue
of custody of an arrestee must be
notified by the police where the next
friend or relative of the arrestee
lives outside the district or town
through the legal Aid Organization in
the District and the police station of
the area concerned telegraphically
within a period of 8 to 12 hours after
the arrest.

66. z
The person arrested must be made
aware of this right to have someone
informed of his arrest or detention as
soon he is put under arrest or is
detained.
An entry must be made in the diary at
the place of detention regarding the
arrest of the person which shall also
disclose the name of the next friend of
the person who has been informed of
the arrest and the names and
particulars of the police officials in
whose custody the arrestee is.

67. z
The arrestee should, where he so
requests, be also examined at the
time of his arrest, major and minor
injuries, if any present on his/her
body, must be recorded at that time.
 The “Inspection Memo” must be
signed both by the arrestee and the
police officer effecting the arrest
and its copy provided to the arrestee.

68. z
The arrestee should be subjected
to medical examination by trained
doctor every 48 hours during his
detention in custody by a doctor
on the panel of approved doctors
appointed by Director, Health
Services of the concerned State
or Union Territory.
Copies of all the documents
including the memo of arrest,
referred to above, should be sent
to the Magistrate for his record.

69. • The arrestee may be permitted
to meet his lawyer during
interrogation, though not
throughout the interrogation.
• A police control room should be
provided at all district and state
headquarters, where information
regarding the arrest and the
place of custody of the arrestee
shall be communicated by the
officer causing the arrest,
within 12 hours of effecting the
arrest and at the police control
room it should be displayed on a
conspicuous notice board.

70. JOGINDER KUMAR V.
STATE OF U.P AND
OTHERS 1994 SCC 260.
• Joginder Kumar, a young lawyer aged 28 was
called to the office of the Senior
Superintendent of Police [SSP], Ghaziabad in
connection with some inquiries and detained for
5 days without any valid reasons.
• Rejecting the police version that Joginder Kumar
was cooperating with them out of his own free
will, the Court said that the law of arrest is one
of balancing individual rights, liberties and
privileges on the one hand and individual duties,
obligations and responsibilities on the other; of
weighing and balancing the rights, liberties of
the single individual and those of individuals
collectively.

71. • The Supreme Court pointed out that the Third
Report of the National Police Commission identifies
wrongful use of arrest powers as one of the chief
sources of corruption in the police and that nearly
60% arrests made by police officers are unnecessary
and unjustified.
• Strongly opposing the practice of carrying out
indiscriminate arrests, the Supreme Court said that an
arrest cannot be made simply because it is lawful for a
police officer to do so.

72. The existence of the power to arrest is one thing the
justification for the exercise of it is quite another.. ..the
police officer must be able to justify the arrest.
• Arrest and detention in police lock up can cause
incalculable harm to the reputation and self-esteem of a
person. Therefore, arrests should not be made in a
routine manner on mere allegation that a person has
committed an offence.
• If police officers do not wish to face legal or disciplinary
action, they should see that arrests are made only after
reaching a reasonable satisfaction about the complaint
being true and the case being bona fide [genuine].
• Even then, the Court said that the officer making the
arrest must function under a reasonable belief both as to
the person's complicity in committing the offence and the
need to effect an arrest.

73. SUPREME COURT DIRECTIVES
• Arrests are not be made in a routine manner.
The officer making the arrest must be able to
justify its necessity on the basis of some
preliminary investigation.
An arrested person should be allowed to inform a
friend or relative about the arrest and where
s/he is being held.
The arresting officer must inform the arrested
person when s/he is brought to the police
station of this right and is required to make an
entry in the diary as to who was informed.
It is the duty of the magistrate before whom the
arrested person is produced to satisfy
her/himself that the above requirements have
been complied with.

74. NATIONAL
HUMAN RIGHTS
COMMISSION
NHRIs, have been established in
many Commonwealth countries to
promote and protect human
rights through effective
investigation of broad human
rights concerns and individual
complaints about human rights
violations. Set up in 1993 under
an Act of the Parliament, namely,
the Protection of Human Rights
Act, 1993.

75. A large number of complaints pertaining to
Human Rights violations are in the area
of abuse of police powers, particularly
those of arrest and detention.
It has, therefore, become necessary, with
a view to narrowing the gap between law
and practice, to prescribe guidelines
regarding arrest even while at the same
time not unduly curtailing the powers of
the police to effectively maintain and
enforce law and order and proper
investigation.

76. GUIDELINES REGARDING PRE-
ARREST AND ARREST BY NATIONAL
HUMAN RIGHTS COMMISSION
PRE-ARREST
The power to arrest without a warrant should be
exercised only after a reasonable satisfaction is
reached, after some investigation, as to the
genuineness and bona fide of a complaint and a
reasonable belief as to both the person’s complicity
as well as the need to effect arrest.
Arrest cannot be justified merely on the existence
of, as a matter of law, to arrest without a warrant in
a cognizable case.

77. Arrest in cognizable cases may be considered justified
in one or other of the following circumstances:
The case involves a grave offence like murder, dacoity,
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 behaviour and is likely
to commit further offences.
The suspect requires to be prevented from destroying
evidence or interfering with witnesses or warning
other suspects who have not yet been arrested.
The suspect is habitual offender who, unless
arrested, is likely to commit similar or further
offences.

78. Except in heinous offences, as mentioned above,
an arrest must be avoided if a police officer
issues notice to the person to attend the police
station and not leave the station without
permission
The power to arrest must be avoided where the
offences are bailable unless there is a strong
apprehension of the suspect absconding.
Police officers carrying out an arrest or
interrogation 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.

79. • ARREST
• As a rule, use of force should be avoided while
effecting arrest. However, in case of forcible
resistance in 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
of aggression and with care for the person’s right to
privacy. Searches of women should only be mode by
other women with strict regard to decency.

80. • The use of handcuffs or leg chains should be avoided
and if at all, it should be resorted to strictly in
accordance with the law repeatedly explained and
mandated in judgement of the Supreme Court in Prem
Shanker Shukla v. Delhi Administration in (1980) 3 SCC
526 and Citizens for Democracy v. State of Assam
(1995) 3 SCC 743
• As far as is practicable women police officers should
be associated where the person or persons being
arrested are women. The arrest of women between
sunset and sunrise should be avoided.
• Where children or juveniles are sought to be
arrested, no force or beatings should be administered
under any circumstances. Police officers may for this
purpose, associate respectable citizens so that the
children or juveniles are not terrorised and minimal
coercion is used.

81. • 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 persons
arrested should be shown the written reasons as
well as also given a copy on demand.
• 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.

82. • THE PROTECTION OF
HUMAN RIGHTS ACT, 1993
• Section 2(1) (d) of the PHR Act
defines Human rights as the
rights relating to life, liberty,
equality and dignity of the
individual guaranteed by the
Constitution or embodied in the
International Covenants and
enforceable by courts in India.

83. • Concerned with the large number of complaints about abuse of police
powers, particularly in relation to arrest and detention, the National
Human Rights Commission has drawn up set of guidelines.
• They are based on constitutional provisions, existing laws, Supreme
Court decisions and National Police Commission recommendations.
• The Commission has said that these guidelines should be translated
into regional languages and made available in all police stations
throughout the country. It can be incorporated in the handbook
which should be given to every policemen.
• Guideline must receive maximum publicity in the print or other
electronic media. It should also be prominently displayed on notice
board, in more than one language, in every police station

84. • The National Human Rights Commission on
its part has asserted that arrests in
bailable offences must be avoided unless
there is a strong possibility that the person
will run away.
• A police officer must be able to justify an
arrest. All cases of custodial death and
custodial rape whether in police lock-up or
in jail must be reported to the NHRC within
24 hours of occurrence by the concerned
District Magistrate or Superintendent of
Police.
• Failure to report promptly will give rise to
the presumption that there is an attempt to
suppress the incident.
• All post-mortem examinations in respect of
custodial deaths should be video-filmed and
a copy of the recording should be sent to
the NHRC along-with the post mortem
report.
• Autopsy Report forms prescribed by the
NHRC should be used to record the findings
of the post-mortem examination.

85. They have also said that the police must set up a
complaint redressal mechanism to promptly and
effectively investigate complaints regarding
violation of NHRC guidelines.
The functioning of the complaint redressal
mechanism must be transparent and its report
accessible.
Prompt action must be taken against errant police
officers against violation of the guidelines. This
should not be limited to departmental enquiries
but also set in motion the criminal justice
mechanism.
Sensitization and training of police officers is
essential for effective implementation of the
guidelines.

86. CRITICAL ANALYSIS
• Even though the law prohibits arbitrary arrest and
detention, Police uses special security laws to postpone
judicial reviews of arrests.
• Pre-trial detention was arbitrary and lengthy,
sometimes exceeding the duration of the sentence
given to those convicted.
• According to various reports published by human rights
commissions, NGOs, etc it was found that police uses
torture, mistreatment, and arbitrary detention to
obtain forced or false confessions.
• In some cases police reportedly held suspects without
registering their arrests and denied detainees even
sufficient food and water.

87. • Police may detain an individual without charge for up to 30 days,
although an arrested person must be brought before a judge
within 24 hours of arrest.
• Lengthy arbitrary detention remained a significant problem
due to overburdened and under resourced court systems and
lack of legal safeguards.
• The law also permits authorities to hold a detainee in judicial
custody without charge for up to 180 days.
• The Unlawful Activities Prevention Act (UAPA), which gives
authorities the ability to detain persons without charge in cases
related to insurgency or terrorism, makes no bail provisions for
foreign nationals and allows courts to deny bail in the case of
detained citizens.
• It presumes the accused to be guilty if the prosecution can
produce evidence of the possession of arms or explosives, or
the presence of fingerprints at a crime scene, regardless of
whether criminal intent was there or not.
• State governments also reportedly held persons without bail
for extended periods before filing formal charges under the
UAPA.

88. • The law permits preventive detention in certain cases.
The National Security Act allows police to detain
persons considered security risks anywhere in the
country, but it is seen that this law has been used
inappropriately in many a instance.
• Accused individuals have a right to free legal
assistance, including for their first hearing after
arrest. The constitution specifies that the state
should furnish legal aid to provide that opportunities
for securing justice are not denied to any citizen by
reason of economic or other disabilities, but
authorities did not assess this need systematically.
• The Centre for Constitutional Right, Research and
Advocacy (CCRRA) recently reported that certain
prisoners with mental disabilities in the central prisons
considered “not fit for trial” had awaited trial for 10
to 26 years.

89. CONCLUSION
• Respect for human rights lies at the heart of good
governance.
• In a democratic society, it is the responsibility of the
State to protect and promote human rights.
• Arrests should not be made, unless they are absolutely
necessary and there is no other way except arresting
the accused to ensure her/his presence before the
criminal justice system or to prevent her/him from
committing more crimes or tampering with evidence or
intimidating witnesses.
• Unnecessary and unjustified arrests lead to
harassment and loss of faith in the system

90. Every citizen of every country is presented with certain
rights that are absolutely fair without any prejudice in the
spirit of common brotherhood and conscience like the right
to life, right to equality, right to freedom, right to
education, right to equality, right to freedom of religion
and many more.
Rights of a person can get surrendered if the person gets
detained/ arrested for committing a crime.
No human shall be denied of his right to life and personal
liberty except if established by law” which means that the
process must be fair, clear and not arbitrarily or
oppressive.

91. • THANK YOU