DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY
VISAKHAPATNAM, A.P., INDIA

D.K. BASU vs STATE OF WEST BENGAL (Detailed study)

LAW RELATING TO POLICE, INVESTIGATION (including Forensic Science) &

Dr. P. Vara Lakshmi

MADDALA VIJAYA RATNA PRASAD

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 ACKNOWLEDGEMENT

TITLE OF SUBJECT: -

NAME OF FACULTY: - Dr. P. Vara Lakshmi

I Maddala Vijaya Ratna Prasad hereby declare that this assignment: D K Basu vs State of
West Bengal. Submitted by me is original work. I have duly acknowledged all the sources
from which the ideas and extracts have been taken. The project is free from any plagiarism
issue.

PLACE: Visakhapatnam

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 TABLE OF CONTENTS
 Acknowledgement………………………………………………………………….….2
 Objectives And Aims Of Study………………….…………………………………….8
 Research Questions……………………………………………………………………8
 Scope Of The Study………………………………………………………………..….8
 Research Methodology…………………………………….…………………………..9
 Hypothesis………………………………………………….……………………….…9
 Introduction……………………………………………………..…...………….……10
 Is Handcuffing Necessary…………………………………....……..………………..12
 Need to know the reason of Arrest………………………………..………………….15
 24 hours deadline or guideline…………………………………...…………………..19
 Case Analysis ………………………………………………………………………20
 Conclusion………………………………………………………………..…………..24
 Bibliography………………………………………………………………………….25

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 OBJECTIVES AND AIMS OF STUDY
The aim of this paper is to examine the rights of the accused within the framework of the
Cr.P.C amended after D.K. Basu vs State of West Bengal.

It is the objective of this paper to study the rights of the accused on arrest as ensured by the
Cr.P.C amended after D.K. Basu vs State of West Bengal.

RESEARCH QUESTIONS

The questions that arise in the course of this study are:

1. What is meant by unnecessary restraint of the accused on arrest?

2. Must the grounds of arrest be informed to the arrested immediately? Is there any specific
form of communication of the same?

3. What does the period of 24 hours from the time of arrest include?

4. What are the consequences of violating these rights of the arrested person?

SCOPE OF THE STUDY

As this is a case analysis the scope of this paper would be quite vast, as it would encompass
every right of the accused during the pre-trial and post-trial procedure.

This paper is focused on a study of the rights of the accused with respect to the arrest of the
accused. This has been further narrowed down to a study of some specific sections of the
Cr.P.C, amended after D.K. Basu vs State of West Bengal namely:

1. Section 49, that specifies that no unnecessary restraint can be imposed on the arrested
person,

2. Section 50 that requires the police to inform the arrested of the reasons for arrest and
whether the arrested person is entitled to bail, and,

3. Section 57, which requires that the arrested must be produced before a Magistrate within
24 hours of his arrest.

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 RESEARCH METHODOLOGY

The “Doctrinal” method of research has adopted by the researcher for this assignment. By
getting the literary material from primary sources like books, secondary sources like articles,
journals and tertiary sources like internet material.

HYPOTHESIS

It is the presumption of the researcher that accused were treated as similar as convicted
criminals and the rights of accused were only identified after this case.

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 INTRODUCTION

“To strike the balance between the needs of law enforcement on the one hand and the
protection of the citizen from oppression and injustice at the hands of the law enforcement
machinery on the other, is a perennial problem of Statecraft.”1

This subject is quite vast and involves many facets. It 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 paper 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”.2 Arrest means the total restraint and complete deprivation of liberty of a person by legal
authority or at least, by apparent legal authority. 3 It has also been defined as “to restrain or
detain a person by lawful authority”.4 When one thinks of arrest, the picture that most often
springs to one’s mind, fostered by television and films of American origin, is that of a police
officer reading out the Miranda rules to the arrested, informing him of his rights. Again,
based on what one has seen in innumerable movie scenes, again, primarily of American
origin, one knows by now that the arrested person has the right to remain silent, that he has
the right to a lawyer and so on. Of course, the question that is relevant to us is whether these
rights apply in India and more importantly, whether rights of an accused in themselves are a
reality or whether they are, in fact, restricted merely to imagination. 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. 5
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. The
eternal question has always been the following: how much is too much? Are the police given
the absolute authority to do as they like with the arrested person to ensure that justice is
ultimately done or is it in order to render justice while ensuring that rights of the arrested are
fully protected?

1
Nandini Satpathy v. P. L. Dani AIR 1978 SC 1025
2
P. Ramanatha Aiyar, The Law Lexcicon , Wadhwa and Co., Nagpur, 1987, p. 85.
3
R. V. Kelkar, Criminal Procedure , Eastern Book Co., Lucknow, 1998, p. 53.
4
L. B. Curzon, Dictionary of Law , Pitman Publishing, London, 1997, p. 24.
5
Joginder Kumar v. State of Utter Pradesh AIR 1994 SC 1349.

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In recent times, much attention has been focused on the way the police treat arrested persons.
In several instances, the necessity of arrest itself has been questioned. In this regard, the Third
report of the National Police Commission has specified that arrest can be considered justified
in the following cases:

1. The case involves a grave offence like murder, dacoity, robbery, rape, etc., and it is
necessary to arrest the accused and bring his movements under restraint to infuse confidence
among the terror stricken victims.

2. The accused is likely to abscond and evade the process of law.

3. The accused is given to violent behavior and is likely to commit further offences unless his
movements are brought under restraint.

4. The accused is a habitual offender and unless kept in custody, he is likely to commit
similar offences again.6

Following such recommendations, there have also been several cases that have discussed in
detail the rights of the arrested person and what the police can and cannot do. The most
important of them all is D. K. Basu vs. State of West Bengal 7, often considered as the
encyclopedia on the law of arrest. This case has laid down several important dos and don’ts
of arrest. For e.g., the person who has been arrested or detained and is being held in custody
in a police station or interrogation center 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. The
person arrested must also be made aware of this right to have someone informed of his arrest
or detention as soon as he is put under arrest or is detained. Thus, this judgement has tried to
ensure the very least of rights to the arrested. However, before, this paper can go into the
recommendations of various committees on the subject matter, it is important to examine the
law of the land that ensure rights to the arrested person. In order to do this, this paper must go
into the provisions of the Code of Criminal Procedure8 of India and determine which
provisions ensure rights to the accused on arrest.

IS HANDCUFFING NECESSARY

6
G. Raghuraman, “Law Relating to Arrests: Reforms in the Offing”, (2001) 1 Comp L J (Journal) 12
7
AIR 1997 SC 610.
8
For the sake of convenience, the Criminal Procedure Code shall be referred to as the Cr.P.C. hereafter.

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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.9 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.10 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. 11 Once this has been done, the
debate on this matter has more or less been restricted to the question of whether it is
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.12 The 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 vs. Delhi Administration 13 the Supreme Court
pronounced that fetters should be shunned as violation 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 vs. Delhi Administration14, 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,

9
D. D. Basu, Criminal Procedure Code, 1973 , Ashoka Law House, New Delhi, 2001, p. 131.
10
Ram Narain Gupta vs Ravi Datt 1966 AWR 776 c.f. Batuk Lal, The Code of Criminal Procedure, p. 141.
11
S. C. Sarkar, The Law of Criminal Procedure , S. C. Sarkar & Sons (P) Ltd., Calcutta, 1975, p. 53.
12
Justice K. D. Shahi, Princep’s Commentary on the Code of Criminal Procedure, 1973, Delhi, 2000, p. 199.
13
(1978) 4 SCC 494.
14
(1980) 3 SCC 526.

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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 be used only to
prevent the escape of the prisoner and no more. 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 vs. State of Madhya Pradesh15 it 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 Pradesh16 the 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 vs. State of Assam17, 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

15
1987 CriLJ 339.
16
(1990) 3 SCC 119.
17
(1995) 3 SCC 743.

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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
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.18

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 violation
of the law.19

18
M. R. Mallick, B. B. Mitra on the Code of Criminal Procedure, 1973 , Kamal Law House, Calcutta, 1987, p.
198.
19
(1981) 1 SCC 627.

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 NEED TO KNOW REASON OF ARREST

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. 20 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.21

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
informed of the grounds for such arrest, as soon as possible. In re Madhu Limaye 22, 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.23

20
Supra., note 3, p. 59.
21
Supra., note 11.
22
AIR 1969 SC 1014.
23
P. Ramanatha Aiyar, Code of Criminal Procedure , Modern Publishers (India), Lucknow, 1999, p. 262.

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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.24 It would be useful to cite the case of Christie v. Leachinsky 25 where
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. State26 the Allahabad High Court held that the arresting officer is supposed to
record in the police papers 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
necessary steps for freeing himself. The case of Govind Prasad v. State of West Bengal 27 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 nonconformity with its
mandatory provisions would lead to non-conformity with the procedure established by law.
Ashok v. State28 upheld this case wherein, the Madhya Pradesh High Court held that the
provisions of Section 50 are in conformity with Article 22(1) and noncompliance with the

24
Ibid
25
[1947] 1 All ER 567.
26
1996 CriLJ 1536.
27
1975 CriLJ 1249.
28
1987 CriLJ 1750.

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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. 29 Here 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 30 the 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 Pradesh31 the High Court held that the words ‘as soon as may be’ do
not mean that the grounds of arrest must be communicated immediately at the 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.

29
1996 CriLJ 603.
30
(1972) 2 SCC 656.
31
1995 CriLJ 2335.

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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.32 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 33 that 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.34 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 vs State of Himachal Pradesh 35 the 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
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.

32
This has been upheld in Natverlal v. State of Gujarat 1983 CriLJ 1124
33
1976 CriLJ 1303.
34
Supra., note 3, p. 60.
35
1989 CriLJ 383.

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 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). 36
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. 37 Thus, by rendering
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. 38 This principle has been
upheld in the case of Nabachandra Singh v. Manipur Administration. 39 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

36
The only difference that needs to be noted in this case is that Article 22(2) applies to arrests made with as well
as without a warrant.
37
In re Madhu Limaye AIR 1969 SC 1014 (1018).
38
Batuk Lal, The Code of Criminal Procedure , Orient Publishing Co., New Delhi, 1999, p. 150.
39
AIR 1964 Mani 39.

15
to Sessions with as little delay as possible.40 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. 41 It is the
objective of this provision to enable the arrested person to make a representation before a
Magistrate.42 In Dwarkadas v. Ambalal Ganpatram43 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
that police stations are not used as proxies for prisons.44 It was held in State of Punjab v.
Ajaib Singh45 that 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
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.

40
Ratanlal and Dhirajlal, The Code of Criminal Procedure , Wadhwa and Co., New Delhi, 1998, p. 65.
41
Supra., note 18, p.210.
42
Shoorvir Tyagi, The Code of Criminal Procedure, 1973 , Central Law Agency, Allahabad, 1994, p. 56.
43
AIR 1959 All 384.
44
Supra., note 3, p. 61.
45
AIR 1953 SC 10.

16
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 Officer 46, 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 accused’s liberty. This contention has been
supported in Iqbal Kaur Kwatra vs Director General of Police 47 where 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.

Another question that arises is whether the twenty-four hour period includes the time taken to
travel to the Magistrate or is it strictly the time in police custody? The most popular opinion
appears to be that the time taken to travel to the Magistrate should not be counted in the
twenty-four hours. However, the Magistrate must take care to ensure that the time taken to
travel is reasonable, keeping in mind the distance and other local conditions. 48 In the case of
State of Hyderabad v. Kankadu49 the police officer sent the accused to the Magistrate within
twenty-four hours of his arrest but the Magistrate was on leave. Thus, the police officer was
directed to send the accused to the District Magistrate‟s Court and hence, more than twenty-
four hours elapsed before the accused could be produced before the District Magistrate. The
Court in this case held that the police officer had complied with the provisions of the Section
and the delay caused was due to no fault of his and thus, an extension of time was permitted.

46
1996 CriLJ 2420.
47
1996 CriLJ 2600.
48
Supra., note 18, p.211.
49
AIR 1954 Hyd 89.

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In Manoj vs State of Madhya Pradesh 50 the Supreme Court found that the only time permitted
to be excluded from the period of twenty-four hours is the time necessary for going from the
place of arrest to the Court of the Magistrate. Nevertheless, in most cases it has been laid
down that the time frame of twenty four has to be complied with strictly. In State v. Ram
Autar51, the Court laid down that this twenty four hour time limit des not empower the police
to keep an arrested person in custody a minute longer than is necessary, for the purposes of
investigation. The Court also held that it does not give the police officer an absolute right to
keep a person in custody till twenty four hours. This principle was upheld in Rajani Kanta v.
State of Orissa52 where the Orissa High Court held that the twenty-four hours prescribed in
Section 57 is the outer most limit beyond which the arrested person cannot be detained in
police custody.

Another interesting point, often contentious, with respect to this Section is that the twenty
four hours limit in police custody is applicable only for one continuous stretch. That is, the
total number of hours that an arrested person has been detained cannot be added up to twenty-
four hours and therefore, bring him under the purview of this Section. 53 Thus, if the accused
has been arrested on prior occasions and detained for period totaling twenty four hours, then
he cannot claim his right under Article 22(2) or Section 57 during any fresh arrest as he has to
have spent twenty-four hours at a single stretch in the custody of the police before doing so.

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.54 The accused is also entitled to
move a writ of habeas corpus directing his release. In the case of Sharifbai v. Abdul Razak 55
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
Magistrate is no longer detention by the police officer himself and that he is merely carrying
the orders of the Magistrate.
50
(1999) 3 SCC 715.
51
AIR 1955 All 138.
52
1975 CriLJ 83.
53
Supra., note 23, p. 284.
54
Supra., note 9, p. 143.
55
AIR 1961 Bom 42.

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In Khatri (II) v. State of Bihar56 the 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.

56
177th Law Commission Report, “Consultation Paper on the Law relating to Arrest”,

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 CASE ANALYSIS

D.K.BASU vs STATE OF WEST BENGAL {WP(Crl.) No. 539/1986 with No. 592/1987}

JUDGEMENT BY: - Justice A.S. Anand.

QUORUM: - Kuldip Singh, A.S. Anand, JJ.

ADVOCATES: - (There were many Advocates involved in this case)

FACTS: - Mr. D.K. Basu, The Executive Chairman of West Bengal Legal Aid Services, a
registered nonpolitical organization, wrote to the Chief Justice of India drawing his attention
to deaths in police custody. The letter noted that efforts are often made to hush up the ‘lock-
up’ deaths and thus the crime goes unpunished and ‘flourishes’. The letter stated that it was
imperative that Court looks into the issue in depth, formulate modalities for awarding
compensation to the victim and/or family members of the victim and to provide for the
accountability of the officers concerned. This letter was treated as a writ petition and notice
was issued first to the State of West Bengal, and by a subsequent order to all the State
Governments and to the Law Commission of India. The State of West Bengal denied the
allegations and characterized the writ petition as misconceived, misleading and untenable in
law. Further, Dr. A.M.Singhvi, Senior Advocate was appointed as Amicus Curiae to assist
the Court.

ISSUES: -

 Growth in incidents of Custodial Torture and Deaths by Police.

OBSERVATIONS BY COURT: -

1. A number of Constitutional and Statutory provisions seek to protect personal liberty,

2. Article 21 guarantees the right to life and personal liberty and has been held to include the
right to live with human dignity. It thus also includes a guarantee against torture and assault
by the state or its functionaries.

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3. Article 22 guarantees protection against arrest and detention in certain cases. It provides
that no individuals who are arrested shall be detained in custody without being informed of
the grounds of arrest and that arrested individuals shall not be denied the right to consult and
defend themselves by a legal practitioner of their choice.

4. Article 20(3) provides that a person accused of an offence shall not be compelled to be a
witness against himself or herself.

5. Parliament’s attention is drawn to the urgent need to amend the rules of evidence regarding
prosecution of police officials accused of custodial violence, in particular the
recommendations of the Law Commission of India in its 113 Report regarding a shift in the
burden of proof, with the introduction of a presumption of custodial violence if there is
evidence that the detainee’s injury was caused during the period of detention, and the
consideration by the court of all relevant circumstances.

HELD: -

Relying on Nilabati Behera v State of Orissa (1993) 2 SCC 746, the Court stated that any
form of torture or cruel, inhuman or degrading treatment falls within the ambit of Art 21,
whether it occurs during investigation, interrogation or otherwise. The rights guaranteed by
Art. 21 cannot be denied to under trials, convicts, detenus and other prisoners in custody,
except according to the procedure established by law by placing such reasonable restrictions
on the right as are permitted by law.

Even after laying down procedural requirements by this Court in Joginder Kumar v State of
UP, it has come to the Court’s notice that police have arrested a person without a warrant in
connection with the investigation of an offence, without recording the arrest, and the arrested
person has been subjected to torture to extract information from him or her for the purpose of
further investigation, recovery of case property or in order to extract a confession.

The Court felt that it would be useful and effective to structure appropriate machinery for
contemporaneous recording and notification of all cases of arrest and detention to bring in
transparency and accountability. The Court issued a list of 12 guidelines in addition to the
Constitutional and Statutory Safeguards which are to be followed in all cases of arrest and
detention. The guidelines are as follows: –

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(i) Police personnel carrying out arrest and interrogation should wear accurate, visible and
clear identification and name tags with their designations, the details of which should be
recorded in a register;

(ii) A memo of arrest (including the relevant date and time) shall be prepared by the arresting
police officer and shall be attested by at least one witness (either a relative of the arrestee or a
respectable local person) and countersigned by the arrestee;

(iii)One friend or relative of the arrestee (or another person known to him or her who has an
interest in his or her welfare) shall be informed, as soon as practicable, of the arrest and
detention at the place in question;

(iv) Where the next friend or relative of the arrestee lives outside the district or town in
question, he or she must be notified by the police of the time, place of arrest and venue of
custody within 8 to 12 hours of the arrest;

(v) The arrestee must be informed of this right as soon as he or she is arrested or detained;

(vi) An entry must be made in the diary at the place of detention regarding the arrest of the
person, including the name of the next friend who has been informed and the names and
particulars of the police officers in whose custody the arrestee is detained;

(vii) On request, the arrestee should be examined for injuries at the time of arrest and
provided with a copy of the resulting report, signed by both the officer and arrestee;

(viii) The arrestee should undergo a medical examination every 48 hours by a doctor from an
approved panel;

(ix) Copies of all documents regarding the arrest are to be sent to the appropriate local
Magistrate for his or her records;

(x) The arrestee may be permitted to meet with his or her lawyer during interrogation, though
not throughout the interrogation;

(xi) A police control room must be established at all district and State headquarters where
information regarding the arrest should be received within 12 hours of the arrest and
displayed on a conspicuous notice board.

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(xii) These requirements are in addition to existing safeguards and do not detract from other
directions given by the courts on this matter. They will apply with equal force to the other
governmental agencies which have the power to detain and interrogate individuals. They
need to be followed strictly; failure to comply shall render the official concerned liable for
departmental action and contempt of court proceedings.

Mere punishment of the offender cannot give much solace to the family of the victim and a
civil action for damages is a long drawn and cumbersome judicial process. Monetary
compensation for redressing the infringement of the indefeasible right to life of the citizen is,
therefore, useful and at times perhaps the only effective remedy for the family members of
the deceased victim, who may have been the breadwinner of the family. The state’s vicarious
liability for the acts of public servants in infringing such rights. The quantum of
compensation will depend upon the peculiar facts of each case and no rigid formula can be
evolved.

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 CONCLUSION
This paper 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. It 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.

The Law Commission of India, in its 177th 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.

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 BIBLIOGRAPHY
 Books:
 G. Raghuraman, “Law Relating to Arrests: Reforms in the Offing”, (2001) 1
Comp L J (Journal) 12.
 Batuk Lal, The Code of Criminal Procedure , Orient Publishing Co., New Delhi,
1999.
 D. D. Basu, Criminal Procedure Code, 1973 , Ashoka Law House, New Delhi,
2001.
 Justice K. D. Shahi, Princep‟s Commentary on the Code of Criminal Procedure,
1973 , Delhi Law House, Delhi, 2000.
 M. R. Mallick, B. B. Mitra on the Code of Criminal P rocedure, 1973 , Kamal
Law House, Calcutta, 1987.
 P. Ramanatha Aiyar, Code of Criminal Procedure , Modern Publishers (India),
Lucknow, 1999.
 R. V. Kelkar, Criminal Procedure , Eastern Book Co., Lucknow, 1998.
 Ratanlal and Dhirajlal, The Code of Criminal Proce dure , Wadhwa and Co., New
Delhi, 1998.
 S. C. Sarkar, The Law of Criminal Procedure , S. C. Sarkar & Sons (P) Ltd.,
Calcutta, 1975.
 Shoorvir Tyagi, The Code of Criminal Procedure, 1973 , Central Law Agency,
Allahabad, 1994.
 Articles:
 Anonymous, “Recommendations of the Mallimath Committee on reforms of
Criminal Justice System”, at (visited on 16th March 2019)
<http://www.pucl.org/Topics/Law/2003/malimath-recommendations.htm>.
 Rajeev Dhavan, “The Law of Arrest”, at (visited on 16th March, 2019)
<http://www.hinduonnet.com/thehindu/2001/02/23/stories/05232523.htm>.
 Miscellaneous:
 L. B. Curzon, Dictionary of Law, Pitman Publishing, London, 1997.
 P. Ramanatha Aiyar, The Law Lexicon, Wadhwa and Co., Nagpur, 1987.

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