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Illegal Arrest

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 28-Aug-2024

Source: Bombay High Court 

Why in News?

Recently, the Bombay High Court in the matter of Abhijit Padale v. State of Maharashtra has held that the arrest cannot be made merely because of the allegation against a person it must be duly justifiable, and reasons of arrest must be recorded by the Police officers. 

What was the Background of the Abhijit Padale v. State of Maharashtra   Case? 

  • In the present case, the petitioner is the journalist arrested under the charges of Sections 384 and Section 506 of the Indian Penal Code, 1860 (IPC) on 16th January 2022. 
  • The petitioner was produced before the court on the same day of arrest and produced before the Magistrate. 
  • The Magistrate held that the arrest was not made in accordance with the issued guidelines and hence remanded him to the Magistrate’s custody. 
  • The petitioner filed bail application but due to non-presence of public prosecutor the petitioner had to remain in custody till 18th January 2022. 
  • The petitioner argued that the arrest made was illegal as it was not a serious offence and bailable and no reasons were recorded before arresting the Petitioner to justify his arrest which is clear violation of Section 41 of Code of Criminal procedure, 1973(CrPC).  
  • It was further argued by the petitioner that no notice under Section 41A of CrPC was served upon the Petitioner before arresting him.  
  • Therefore, the Petitioner’s arrest, detention in Police custody and in jail for a total period of 3 days i.e., from 15th January, 2022 to 18th January, 2022 was not only unwarranted but also illegal. 
  • The petitioner also argued that the arrest made by the Police is in violation of Article 21 of the Constitution as the arrest was made to harass and torture the petitioner. 
  • Therefore, the criminal writ petition was filed before the Bombay High Court by the petitioner. 

What were the Court’s Observations? 

  • The Bombay High Court observed that notice before arrest under Section 41A of CrPC has not been served on the petitioner and also he was not informed about the arrest and the reasons of arrest were not duly recorded by the petitioner. 
  • The Bombay High Court further noted that the arrest made was in violation of the guidelines issued under Arnesh Kumar v. State of Bihar and Anr (2014). 
  • The Bombay High Court also referred to the case of DK Basu v. State of West Bengal (1996), the latin maxim 'salus populi est supreme lex' (the safety of the people is the supreme law) and salus republicae est suprema lex (safety of the state is the supreme law) goes hand in hand. 
  • The Bombay High Court based on the above observations held the arrest of the petitioner legal and stated that the arrest made must be justifiable by the Police officers. 

What is Arrest? 

What are the Legal Provisions Related to Arrest?  

Section 35: Arrest by Police officer without warrant – Any police officer may arrest without an order of Magistrate and without a warrant when any person  

    • Commits cognizable offence in his presence, 
    • Commits cognizable offence punishable with less than or equal to 7 years of imprisonment with or without fine: 
      • Against whom reasonable complaint is made 
      • Credible information has been received 
      • Reasonable suspicion exists, if: 
        • Police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence
        • The police officer is satisfied that such arrest is necessary: 
        • To prevent such a person from committing any further offence. 
        • For proper investigation of the offence. 
        • To prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner. 
        • To prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer. 
        • As unless such person is arrested, his presence in the Court whenever required cannot be ensured. 
    • Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest. 
    • The police officer shall record while making such arrest, his reasons in writing. 
    • Against whom a complaint has been received or credible information has been received and a reasonable suspicion exists that such person has committed a cognizable offence punishable with imprisonment for more than 7 years with or without fine and on the basis of that information the police is of the opinion that such person has committed the said offence. 
    • When such person is a proclaimed offender. 
    • In whose possession some stolen property is found and there exists a reason to believe that such person has committed an offence in relation to that stolen property. 
    • When such person obstructs the police officer while in the execution of his duty. 
    • Who has escaped or attempted to escape from lawful custody. 
    • When such person is reasonably suspected of being a deserter from the armed forces of the union. 
    • When such person is concerned with an act committed outside India that is an offence in India and against whom a reasonable complaint has been received or some credible information has been obtained or a reasonable suspicion exists and for the same, he is liable for extradition or apprehension under any law in force in India. 
    • When such person is a released convict and has breached some rules related to his release. 

Section 43: Arrest How Made - 

    • Clause (1) states that in making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action 
    • Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest. 
    • Clause (2) states that if such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. 
    • Clause (3) The police officer may, keeping in view the nature and gravity of the offence, use handcuff while making the arrest of a person or while producing such person before the court who is a habitual or repeat offender, or who escaped from custody, or who has committed offence of organised crime, terrorist act, drug related crime, or illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency-notes, human trafficking, sexual offence against children, or offence against the State. 
    • Clause (4) states that Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life. 
    • Clause (5) states that save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed, or the arrest is to be made.

What are Essential Conditions for Legal Arrest? 

  • Where arrest is not required, notice must be compulsorily issued before arresting. 
  • According to Section 36 of BNSS - Every police officer while making an arrest shall: 
    • Bear accurate, visible and clear identification of his name. 
    • Prepare memo of arrest, attested by at least one witness and countersigned by the arrested person. 
    • Inform person arrested his right to have a relative informed. 
  • Police control rooms are to be established in every district and at the state level according to Section 37 of BNSS. 
  • An arrested person is entitled to meet an advocate during interrogation, not throughout the interrogation as per Section 38 of BNSS. 
  • A person arrested must be taken before the magistrate within 24 hours of the arrest as per Section 58 of BNSS. 

What is Illegal Arrest? 

About 

  • When an arrest is made in such a manner that illegally detains a person and infringes its fundamental rights guaranteed under the constitution. 
  • The Arrest which is not made in accordance with the provisions of BNSS and where no reasonable reasons of arrest are recorded by the Police officer shall be held illegal arrest. 
  • It is an act of unlawful restraining of a person which harms his dignity and personal liberty. 

Guidelines for Arrest Issued in the case of Arnesh Kumar v. State of Bihar and Anr  

  • The Court issued certain guidelines under this case to prevent illegal arrest under the offences punishable with imprisonment up to 7 years: 
    • Police officers must comply with the provision of Section 41 of CrPC (now covered under Section 35 of BNSS). 
    • Police officers must issue notice before making an arrest as per section 41 A of CrPC (now covered under section 35 of BNSS). 
    • The reasons for arrest must be submitted before the magistrate at the time of production of the arrested person. 
    • The Magistrate shall duly undertake the reasons submitted by the Police officers before granting any decision. 
    • Magistrates authorizing detention without recording reasons will face departmental action by the appropriate High Court. 
    • Police officer may face departmental action and contempt of court if not complied with these issued guidelines. 

What are the Landmark Cases Related to Illegal Arrests?

  • Joginder Kumar v. State of UP (1994): 
    • In this case guidelines were issued by the Supreme Court to make an arrest by the Police officer and it was stated that mere existence of power does not gives right to the police officer to arrest anyone without justifiable reasons.  
    • Existence of power and exercise of power are two different things and mere existence of power does not give right to exercise it without reasonable cause. 
  • Pankaj Bansal v. Union of India (2023):  
    • Supreme Court held that to give true meaning to constitutional and statutory mandates, “it would be necessary, henceforth, that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception”. 
  • Hussainara Khatoon v. Home Secretary, State of Bihar (1979): 
    • The Supreme Court held that every accused individual lacking the means to secure legal representation possesses a constitutional entitlement to receive free legal services from the State.  
    • The court further said that it is the constitutional duty of the State to provide a lawyer to such individuals if the demands of justice require it. Failure to offer free legal aid could lead to the trial being nullified for contravening Article 21. 
  • State of West Bengal v. Anwar Ali Sarkar (1952): 
    • The Supreme Court held that access to legal counsel is a fundamental right, and that the government is obligated to provide legal aid to those who cannot afford it.  
    • This decision proved pivotal in ensuring that everyone, irrespective of financial resources, could avail themselves of legal representation. 
  • D.K. Basu v. State of West Bengal (1997): 
    • The Supreme Court issued guidelines for the arrest and detention of a person in this case which included the requirements that the arresting officer must inform the person of his/her right for legal representation and his right of informing to his relatives/ famil 
  • Arnesh Kumar v. State of Bihar (2014): 
    • Supreme Court of India ordered to ensure that police officers do not arrest the accused unnecessarily and magistrate do not authorize detention in such cases.