INTRODUCTION

Code of Criminal Procedure, 1973 lays down the procedural aspects of procedure of
arrest. Under this, the complete process been mentioned related to arrest a person
who committed any offence. The essential object of criminal law to protect the
society from criminal and from law-breakers. Therefore, criminal law consists both
substantive and procedural law. Chapter V of Code of Criminal Procedure, 1973
deals with the arrest of persons under (Sections 41 to Section 60).Three People can
issue the process of arrest, they are as follows:

 A police officer with or without warrant, or

 A private person, or
 A magistrate

Q.1 – What do we mean by the term arrest? Is it been defined under CrPC?

Ans- This term “Arrest” is very common term that we pick up a lot in our day today
life. Normally, we see a person, who do or have done something against the law, get
arrested. The term ‘arrest’ means apprehension of a person by legal authority so as
to cause deprivation of liberty.

As per Legal Dictionary by Farlex, “Arrest” means “a 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.”

In criminal law, arrest is a important tool for bringing an accused before the
court and to prevent him from absconding. Thus, after arrest, a person’s liberty
is under the control of arrester. Every deprivation of liberty or physical restraint
is not arrest. Only the deprivation of liberty by legal authority or at least by apparent
legal authority, in a professionally competent and adept manner amounts to arrest.
However, a person against whom no accusation of crime has been made may be
arrested /detained under a statute for certain purposes like removal in safe custody
from one place to another, for example – removal of a minor girl from a brothel. One
thing to be noted that ‘custody’ and ‘arrest’ don’t have same meaning. Taking of a
person into judicial custody is followed after the arrest of the person by Magistrate
on appearance or surrender. In every arrest there is custody but not vice versa. Thus,
mere taking into custody of a person an authority empowered to arrest may not
necessarily amount to arrest.

PURPOSE: The mere purpose of arrest is to bring a arrestee before a court and
to secure the administration of the law. An arrest also serve the function of
notifying society that an individual has been committed a crime and to deter
him from committed any other crime in future.

Arrest can be made in both criminal and civil both but in civil matters the arrest
is the drastic measure which is not looked upon in favour by the court.

Q.2 – Who are authorized to arrest a person?

Ans- Arrest can be made by a police officer, magistrate or any private person,
like you and me can also arrest any person but the arrest should be made
according to the process mentioned under Crpc. A police officer is authorized
to arrest a person with warrant and without warrant. The code exempts the
members of Armed forces from being arrested for anything done by them in
discharge of their official duties except after obtaining the consent of the government
(Sec. 45). Any private individual may arrest a person only when the person a
proclaimed offender and the person commits a non-bailable offence and cognizable
offences in his presence (sec. 43). Any magistrate (whether Executive or judicial)
may arrest a person without a warrant (sec. 44)

Q.3- Is the police officer authorized to arrest any person without warrant?

Ans- Yes, the police officer is been authorized to arrest any person without the
warrant ordered by the court. Under Sections 41, 42, 151 CrPC, a Police officer
may arrest without warrant in the following conditions:

1. Who has been concerned in any cognizable offence such as murder, rape,
kidnapping, theft, etc. or
2. Who has in possession, without, lawful excuse, of any house breaking weapon
or
3. Who has been proclaimed as an offender either under CrPC or by order of the
State Govt. or
4. Who is in possession of any stolen property or
 5. Who obstructs a police officer while in the execution of his duty or who has
escaped, or attempts to escape, from lawful custody or
6. Who is reasonably suspected of being a deserter from any of the Armed forces
of the Union or
7. Who has been concerned in any law relating to extradition or
8. Who, being a released convict commits a breach of any rule made under sub-
section (5) of Section 356 CrPC or
9. For whose arrest any requisition has been received from another police officer
specifying the person to be arrested and the offence and other cause for which
the arrest is to be made.

Q.4- What is the process of making an arrest? Is it mentioned under CrPC?

Ans- The mode of arrest is been mentioned under section 46 with or without warrant.
In making an arrest the police officer /other person making the same actually touches
or confines the body of the person to be arrested unless there be a submission to
custody by words or action. When the police arrests a person in execution of a
warrant of arrest obtained from a magistrate, the person so arrested shall not be
handcuffed unless the police have obtained orders from the Magistrate in this regard.

1. 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.
2. 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.
3. 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.
4. Save in exceptional circumstances, no women 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.
 Q.5- Can a police officer may arrest a person in any other place in India outside
their jurisdiction?

Ans- As person section 48 i.e. pursuit of offenders into other jurisdiction lays down
that a police officer may, for the purpose of arresting without warrant any person
whom he is authorised to arrest, pursue such person into any place in india.

Q.6- Is there any special provision given to females?

Ans- Yes, as regarding to females they had been given following special protection
as:-

 General rule is that Females are not be arrested without the presence of a lady
constable and further no female be arrested after sun-set but there are exception in
some cases, where crime is very serious and arrest is important then arrest can be
made with special orders and it depends on facts and circumstances of each case.
Separate lock ups to be provided for them.
 The salutary principle that the medical examination of a female should be made by
female medical practitioner has been embodied in section 53(2).

Q.7- How a private person can arrest any other person?

Ans- Section 43 lays down the process of arrest by private person:

 Any private person may arrest or cause to be arrested any person who in his presence
commits a non-bailable and cognizable offence, or any proclaimed offender, and,
without unnecessary delay, shall make over or cause to be made over any person so
arrested to a police officer, or, in the absence of a police officer, take such person or
cause him 10 be taken in custody to the nearest police station.
 If there is reason to believe that such person comes under the provisions of section
41, a police officer shall re-arrest him.
 If there is reason to believe that he has committed a non-cognizable offence and he
refuses on the demand of a police officer to give his name and residence, or gives a
name or residence which such officer has reason to believe to be false, he shall be
dealt with under the provisions of section 42; but if there is no sufficient reason to
believe that he has committed any offence, he shall be at once released.

Q.8-How a magistrate can arrest any other person?

 Ans- Section 44 lays down the procedure of arrest by magistrate:

 When any offence is committed in the presence of a Magistrate, whether Executive

or Judicial, within his local jurisdiction, he may himself arrest or order any person
to arrest the offender, and may thereupon, subject to the provisions herein contained
as to bail, commit the offender to custody.
 Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the
arrest, in his presence, within his local jurisdiction, of any person for whose arrest
he is competent at the time and in the circumstances to issue a warrant.

Q.9- What are the rights given to the arrested person?

Ans- Arrest of a person is made in order to ensure his presence at the trial in
connection with any offences to which he is directly or indirectly connected or to
prevent the commission of a criminal offence. In law, there is principle of
“presumption of innocence till he has proven guilty” it requires a person arrested to
be treated with humanity, Dignity and respectfully till his guilt is proof. In a free
society like ours, law is quite careful toward one’s “personal liberty” and doesn’t
permit the detention of any person without legal sanction. Even article 21 of our
constitution provides: “No person shall be deprived of his life or personal liberty
except according to procedure established by law”. The procedure contemplated by
this article must be ‘right, just and fair’ and not arbitrary, fanciful or oppressive. The
arrest should not only be legal but justified also, Even the Constitution of India also
recognize the rights of arrested person under the ‘Fundamental Rights ‘and here I
will inform you about those rights :-

IMPORTANT CASE:

D.K. Basu v. State of W.B

Despite several attempts being made by issuing guidelines in various cases, to

eradicate the possibility of the committing torture by the police officials, there were
frequent instances of police atrocities and custodial deaths. Therefore, the Supreme
Court, in this case, issued some guidelines which were required to be mandatorily
followed in all cases of arrest or detention. Following are some of the important
ones-
 Right to be informed of the grounds of arrest under sec. 50 of crpc and article 22 of
Indian Constitution, it’s a fundamental right to be informed. It is the duty of the
police officer to inform you and also tell whether the offence is bailable or non
bailable. Normally, Bailable offences are those where bailable can be granted and it
is right of the person to be granted bail and Non- bailable offences are where bailable
can’t be granted generally and it’s the discretion of the court.
 In non- cognizable cases ,arrest are made with warrant and the person going to be
arrested have a right to see the warrant under Sec. 75 of crpc. Warrant of arrest
should fulfill certain requirements such as it should be in writing , signed by the
presiding officer , should have seal of court , Name and address of the accuse and
offence under which arrest is made. If any of these is missing, warrant is illegal.
 Under sec. 41 , police have a power to arrest a person without warrant as prompt and
immediate arrest is needed , no time to approach magistrate and obtain a warrant for
example in case where serious crime is has been perpetrated by a dangerous person
or where chances of that person absconding unless immediately arrested. Section 41
got amended in 2008/2010 because of misuse of power conferred by this section to
police and amendments targeted the power conferred to police officer must be
exercised after reasonable care. Some clauses were put to this section such as police
officer must act reasonably that such arrest is necessary. Not in all cases
arrest in necessary, Notice of appearance before police officer can be made if
reasonable complaint has been made ,credible information has been received and
suspicion exits of cognizable offence and if concern person continues to comply with
such notice and appears then arrest is not necessary but he don’t, arrest can be made.(
sec 41A)
 The police officer must be wearing a clear, visible and clear identification of his
name which facilitate easy identification. A memo of arrest must be prepared at the
time of arrest – (i) attested by least one witness, it can be family member or member
of locality where arrest is made (ii)counter signed by arrested person.
 Right of arrested person to meet an advocate of his choice during interrogation under
sec. 41D and sec. 303 crpc.
 Arrested person have a right to inform a family member, relative or friend his arrest
U/ sec 50 of crpc.
 Arrested person have right not to be detained for more than 24hrs, without being
presented before magistrate, it is to prevent unlawful and illegal arrests. This right is
fundamental right under article 22 of Indian constitution and supported under section
57 and 76 of crpc.
 Arrested person have right to be medically examined (Sec 54,55A) the person who
is arrested should be given the right to have his body examined by the medical officer
when is produced before a magistrate or at any time under custody, with a view to
enabling him to establish that the offence with which he is charged was not
 committed by him or that he was subjected to the physical torture. With the insertion
of 55A, “it shall be duty of a person having custody of an accused to take reasonable
care of the health and safety of the accused” and it attempt to take care of “custodial
violence”( torture, rape, death in police custody/lock-up) to some extent.
 Arrested person have right to remain silent under Sec. 20(3) of Indian constitution
so that police can’t extract self – incriminating statement from a person without will
or without his consent.

Q.10- Can the power of arrest be misused?

Ans- Although, there have been may safeguard provided by the code and
Constitution of India as mentioned above but the fact remain that the power of arrest
is being wrongly and illegally used in large no. of cases in all over the country. The
power is very often is utilized to extort monies and other valuable property or the
instance of the enemy of the person arrested. Even in civil disputes, this power is
being restored to a basis of a false allegation against the party to a civil dispute at
the instances of the opponent. The vast discretion given by Crpc to arrest a person
even in case of a bailable offence (not only where the bailable offence is cognizable
but also where it is non – cognizable) and further power to make preventive arrest
(e.g. under section 151 of the crpc and several city police enactments), clothe the
police with extraordinary power which can be easily abused. Neither there is any in-
house mechanism in the police department to check such misuse or abuse nor does
the complaint of such abuse and misuse to higher police officers bear fruit except in
some exceptional cases.

RELEVANT CASES:

As, in cases of “ arrest” we have landmark judgments that have been given by the
Supreme court of India which sets some rule in favor of arrested persons and also to
prevent the misuse of powers.

Case 1:

JOGINDER KUMAR VS STATE OF U.P. [(1994) 4 SCC 260]

OBSERVATION- In this case Apex Court ruled that an arrested person being held
in custody is entitled , if he so requests, to have one friend , relative or other person
interested in his welfare , told that he has been arrested and where he is being
detained. The police officer shall inform the arrested person when is brought to the
police station of this right. An entry shall be requested to be made in the diary as to
who was informed of the arrest. The Magistrate is obliged to satisfy himself that
there requirements have been complied with.

Case 2:

ARNESH KUMAR VS STATE OF BIHAR [(2014) 8 SCC 273]

OBSERVATION- ,In this case Apex Court ruled that an arrested person being held
in custody is entitled , if he so requests, to have one friend , relative or other person
interested in his welfare , told that he has been arrested and where he is being
detained. The police officer shall inform the arrested person when is brought to the
police station of this right. An entry shall be requested to be made in the diary as to
who was informed of the arrest. The Magistrate is obliged to satisfy himself that
there requirements have been complied with.

CONCLUSION

Up to now we tried to understand the term “Arrest”, procedure of arrest, rights of

the arrested person and related case laws to the topics. Above mentioned each case
has its own significance. By going through Law Commission paper on Law of arrest,
by we can read with data’s that how power of arrest is being misused and more
because of unawareness of people about their right. We somehow console ourselves
that these protectors of law and order must be doing right but we have hundreds of
cases where we witnessed of this power being misused. These report shows high
percentages of arrests are made even in bailable offences, bails are not granted to
those where getting bail is one’s right. Increasing percentage of no. of under trial
prisoners in jails, we can deal with the plight of this topic separately. Arrest has a
diminishing and demoralizing effect on the personality. He is outraged, alienated
and becomes hostile. But there need to be balance between security of state on one
hand and individual freedom on other hand. There need to be some checks on this
power and more awareness need to be created among the peoples about their rights,
so that balance system can be form.
ARREST : WIKIPEDIA
An arrest is the act of apprehending a person and taking them into custody, usually
because they have been suspected of committing a crime. After the person is taken
into custody, they can be questioned further and/or charged. An arrest is a procedure
in a criminal justice system.
Police and various other officers have powers of arrest. In some places, a citizen's
arrest is permitted; for example in England and Wales, any person can arrest
"anyone whom he has reasonable grounds for suspecting to be committing, have
committed or be guilty of committing an indictable offence," although certain
conditions must be met before taking such action.[1] Similar powers exist in France,
Italy, Germany, Austria and Switzerland if a person is caught in an act of crime and
not willing or able to produce valid ID.
As a safeguard against the abuse of power, many countries require that an arrest must
be made for a thoroughly justified reason, such as the requirement of probable
cause in the United States. Furthermore, the time that a person can be detained in
custody is relatively short (in most cases 24 hours in the United Kingdom and France
and 24 or 48 hours in the United States) before the detained person must be either
charged or released.

INDIA
According to Indian law, no formality is needed during the procedure of arrest.[5] The
arrest can be made by a citizen, a police officer or a Magistrate. The police officer
needs to inform the person being arrested the full particulars of the person's offence
and that they are entitled to be released on bail if the offence fits the criteria for being
bailable.[6] There is no general rule of eligibility or requirement that a police officer
must handcuff a person who is being arrested. When there is a question regarding
handcuffing a person then at that time case laws has stated that the choice to handcuff
a person is dependent on the surrounding circumstances, and that officers should
always take the proper precautions to ensure the safety of themselves, and the public.
First Information Report (FIR)
under CrPC
An FIR (First Information Report) is the earliest form and the first information of a
cognizable offence recorded by an officer-in-charge of a police station. The
underlying reason for documenting an FIR is to a set criminal law into motion and
not to express all the small details therein.

Though this term is not used in the Criminal Procedure Code however, ‘An
information given under sub-section (1) of section 154 CrPC is commonly known
as first information report (FIR)’

The information given to the Police Officer for registration of a case must be
authentic and bona fide. It should be traceable to an individual who should be
responsible for imparting information and not be gossip. It may or may not be
hearsay but the person who reports of the said hearsay should take responsibility for
it and mention the source of information. FIR should not be result of an
irresponsible rumour.

If the information given by the woman against whom an offence u/s 326A,326 B
,354 , 354A-D,376,376A-E and 509 of Indian Penal Code is alleged then such
information shall be recorded by a women police officer.

Meaning of Cognizable Offence:

An offence in which the police officer has the supreme authority of arresting without
a warrant and to be able to start an investigation with or without the permission of
the court is termed as a cognizable offence.

Who can lodge a FIR?

FIR can be filed by the following persons:

1) By an aggrieved person or somebody on his behalf.

2) Any person who is aware of the offence by being either:

(a) An eye witness and/or

(b) hearsay account.

3) By the accused himself.

4) By the SHO on his own knowledge or information even when a cognizable
offence is committed in view of an officer in charge he can register a case himself
however he is not bound to take down in writing any information and even if the
information is only by a medical certificate upon arrival of the injured, then the
(SHO) should enter it in daily diary and go to hospital for recording detailed
statement of injured.

In all the cases the information must be definite, not vague, authentic, not baseless,
gossip or rumour, clearly making out a cognizable case. It is to be kept in mind that
the person delivering the hearsay is required to mention the source of his information
and submit it along with his/her signature to prevent it from amounting to false
rumour.

Where FIR should be filed?

Any person can lodge a first Information Report (FIR). It is not necessary for him to
be the victim or the injured or an eye-witness. It is not essential for a First
Information Report to be true and hence it can be a hearsay and need not necessarily
be given by the person who has firsthand knowledge of the facts.

When should it be filed?

An FIR should be filed in the police station of the concerned area in whose
jurisdiction the offence took place.
Though it is secondary, however it is an equally important object to obtain early
information of an alleged criminal activity and to record the circumstances before
the trial, lest such circumstances are forgotten or embellished.

Objective of FIR:

The objectives of filing an FIR are stated as below:

(1) To reduce the substance of data given of a cognizable offense ,whenever given
orally, into a composed written form.
(2) To have it signed by the complainant if submitted in writing.
(3) To maintain a record of information of the cognizable offences committed.
(4) To initiate investigation on receipt of information of commission of cognizable
offence.
(5) To inform Magistrate regarding the nature of the information received.

In the case of Habib v State of Bihar, the court stated the principle object of FIR
which was to set the criminal law in motion. In the case of P.Sirajuddin v State of
Madras, it has been held that to obtain an early information of an alleged offence
from the informant and to put into writing the statement before his memory fails or
before he gets the time and opportunity to embellish it, FIR is necessary.

Essentials of FIR:

The essential conditions to be known while reporting/recording information are:

1. What information needs to be conveyed?

2. In what capacity the crime happened?

3. Who committed the crime?

4. Against whom the crime was committed?

5. When was the crime initiated?

6. Where did the crime take place?

7. What was the motive behind ?

8. The way of occurrence, if any

9.Witnesses, if any.

10. If anything was taken away?

11. What traces were left by the accused?

12. Any causality, if at all.

Procedure of filing FIR

Section 154 of the Criminal Procedure Code, 1973 lays down the procedure for
lodging an FIR-

Written Form

When the information about the commission of a cognizable offence is given orally,
the police must write it down.

Read Over

A person giving the information or making a complaint ,can demand that the
information recorded by the police to be read over to him/her.

Verification
One should sign the report only after verifying that the information recorded by the
police is as per the details given by you.

Signature

Once the information has been recorded by the police, it must be signed by the
person giving the information. It is to to kept in mind that people who are unable to
read or write are expected to put their left thumb impression on the document after
being satisfied that it is a correct record.

Copy of FIR

A person filing a FIR has the right of getting a copy of FIR free of cost.

Difference between FIR & police complaint

BASIS FIR POLICE COMPLAINT

It implies to the complaint Police complaint means an

registered with the police by appeal made to the
MEANING the plaintiff or any other magistrate, which includes
person having knowledge of an allegation that a crime has
the cognizable offence. taken place.

FORMAT There is prescribed format No such prescribed format

MADE TO Police officer Metropolitan magistrate

Both cognizable and non-

Recorded only of cognizable
OFFENCE cognizable offences are
offences
recorded.
 Aggrieved party or the
Anyone subject to certain
WHO CAN SUBMIT? accused, or any such person
exceptions.
.

Evidentiary value of FIR:

FIR not being a substantive piece of evidence, can be used in the following ways :

1.Used for Corroboration purposes.

2. For contradicting purposes the evidence of person giving the information is

important.

3. As an admission against the informer.

4. To refresh former’s memory.

5. To impeaching the credit of an informer.

6. To prove the informer’s conduct.

7. In order to establish identity of accused, witnesses & for fixing spot time as
relevant facts.

When is FIR Substantive Evidence?

a. As dying declaration- During declaration when a person deposing about the cause
of his death had died.

2. When the injured makes a statement to the SHO saying that accused was injuring
him or/and when the injuries are being caused in the SHO’s presence.
3. When it becomes difficult for the informer who has written the FIR or read it ,to
recall those facts but is however, sure that the facts were correctly represented in
FIR at the time he wrote it or read it.

What if Policeman Refuses to record FIR?

1. One can bring the complaint to the notice of the Superintendent of Police or any
other concerned official by meeting them directly.

2. Complaint can be sent in writing through post to the Superintendent of Police

concerned. It is at the option of the officer that if he is satisfied with the complaint,
he shall either investigate the case himself or order an investigation to be made.

3. One has the option to file a private complaint before the court having
jurisdiction.

4. One can always approach the State Human Rights Commission or National
Human Rights Commission in case the police acts in a negligent or biased manner.

Case Laws

Lalita Kumari v Govt. of Uttar Pradesh

Citation- (2014) 2 SCC 1

Bench: P Sathasivam, B.S. Chauhan, Ranjana Prakash Desai, Ranjan Gogoi, S.A.
Bobde

Facts

The facts of the case go like this -The present writ petition was filed by Lalita Kumari
through her father for the issuance of a writ of Habeas Corpus for the protection of
his daughter who has been kidnapped. On 11.05.2008, a written report was submitted
by the petitioner before the officer-in-charge of the police station but no action was
taken by the so called officials .Hence the Superintendent of Police was approached
for a FIR and then he registered it. However no course was taken by the police
authorities to recover the kidnapped daughter or to apprehend the accused.

Issue:

The main issue which stood in front of the court was whether a police officer is
bound under section 154 of the Code of Criminal Procedure, 1973 to register an FIR
upon receiving any information relating to the commission of a cognizable or does
the police officer has the power to conduct a preliminary inquiry in order to test the
veracity of such information before registering the same?

RatioATIO:

The FIR is a pertinent and an irreplaceable document in the criminal law procedure
of our country and from the point of view of the informant its main objective is to
set the criminal law in motion and to obtain information about the alleged criminal
activity so as to be able to take suitable steps to trace and to bring to book the guilty
from the point of view of the investigation authorities.

The main legislative intent behind section 139 of Code of Criminal Procedure, 1861,
and Section 154 of Code of Criminal Procedure, 1882, is to ensure compulsory
registration of FIR in case of a cognizable offence without conducting a preliminary
inquiry. It becomes clear by reading section 154 with section 156 of the Criminal
Code of 1898,that an investigation starts by the police officer recording the first
information regarding commission of cognizable offence into writing and into the
book prescribed by the Provincial Government for the same purpose.

A sine qua non pre requisite for recording an FIR under Section 154 of the Code is
that there must be information disclosing a cognizable offence. This mandatory
provision of section 154 can be noticed by the use of the word ‘shall’ in the section.
A duty has been cast upon the police, in cases of cognizable offences to register FIR
and to conduct investigation in manner specifically mentioned under section 157 of
the Code. Further, FIR book or FIR Register is a book where the registration of FIR
needs to be done. Along with this,it is necessary to write down the gist of FIR or the
substance of the FIR simultaneously in the General Diary as mandated in the
respective Police Act or Rules, as the case may be, under the relevant State
Provisions. If there is any confusion and inconsistency in the provisions relating to
Section 154 of the Code and Section 44 of the Police Act 1861, with regard to the
fact as to whether the FIR is to be registered in the FIR book or in the General Diary,
the provisions of section 154 of the code will prevail and the FIR will be recorded
in the FIR book as mandated by section 154 of the code.

Further, according to the provisions of section 154(1) of the code, reasonableness or

credibility of the said information is not a condition precedent for the registration of
a case.

The requirement of section 154 of the Code is only that the report must disclose the
commission of a cognizable offence and that is sufficient to set the investigation
machinery into action. Therefore conducting an investigation into an offence after
the registration of FIR under Section 154 of the Code is the procedure established
by law and thus in conformity with Article 21 of the Constitution. Accordingly, the
right of the accused under Article 21 of the Constitution is protected if the FIR is
registered first and then the investigation is conducted in accordance with the
provisions of the law.

The advantage of compulsory registration of FIR is not only to ensure transparency

in the criminal justice delivery system but also to ensure judicial oversight. Section
157(1) deploys the word forthwith. Thus, any information received under section
154(1) or otherwise has to be duly informed in the form of a report to the magistrate.
Moreover, there are various other compelling reasons for the compulsory
registration of FIR.
While registration of FIR is compulsory, the arrest of the accused immediately on
registration of FIR is not at all mandatory. Registration of FIR and arrest of a person
are different concepts under the law and there are several safeguards available
against arrest.

Although, section 154 of the code postulates the mandatory registration of FIRs on
receipt of all cognizable offences, yet there are few exceptions where preliminary
inquiry may be required first before registering an FIR. Allegations relating to
medical negligence on part of the doctor, corrupt practice on part of public servant,
and others are considered as an exception to the general rule.

Decesion by Supreme Court

Directions to be followed in regards to Registration of an FIR, are discussed below:

(i) It is mandatory under section 154 of the Code to get a FIR registered, if the
information discloses commission of a cognizable offence and no preliminary
inquiry is permissible in such a situation.

(ii) A preliminary inquiry may be conducted only to ascertain whether cognizable

offence is disclosed or not, in case the information received does not disclose a
cognizable offence but indicates the necessity for an inquiry,

(iii) FIR must be registered, if the inquiry discloses the commission of a cognizable
offence.a copy of the entry of such closure must be supplied to the first informant
forthwith and not later than one week in cases where preliminary inquiry ends in
closing the complaint. Reasons must be disclosed and stated in brief for the
complaint being closed and not being proceeded further.

(iv)No police officer can avoid his duty of registering offence if cognizable offence
has been committed and is hence disclosed. Strict steps must be taken against erring
officers who do not register the FIR in case of cognizable offences.
(v) The scope of preliminary inquiry is only to ascertain whether the information
reveals any cognizable offence and not to verify the veracity of the information
received.

(vi) The category of cases in which preliminary inquiry may be made are as under-
(a) Cases of Matrimonial disputes family disputes
(b) Matters of Commercial offences
(c) Cases involving medical negligence.
(d) Matters of Corruption cases
(e) Abnormal delayed cases where in initiating criminal prosecution, for example,
over 3 months have already passed.
The above are non-exhaustive conditions.

(vii)A preliminary inquiry should be made time bound and in any case it should not
exceed 7 days while ensuring and protecting the rights of the accused and the
complainant. Any reason or fact of such delay must be reflected in the General Diary
entry.

(viii) It is a mandatory practice as directed by the Supreme Court that since the
General Diary/Station Diary/Daily Diary is the record of all information received in
a police station, all information relating to cognizable offences, either resulting in
registration of FIR or leading to an inquiry, must be meticulously reflected in the
diary, no matter even if it is a preliminary inquiry.

Frequently Asked Questions

1) What if it gets late to register a FIR?

It is well known that longer the delay, the stronger the suspicion. The delay should
be satisfactorily explained so that the case does not appear to be a false one-
(1) Names of witnesses should be carefully and explicitly mentioned in a FIR.In
situations when the name of the witnesses are not submitted in the first go and is
later on procured ,it is assumed that they were not present at the spot.

(2) As much as material facts as possible and other first hand incidents relevant to
the matter should be registered.

(3) Even if the FIR is delayed, however they material facts to be filed remains the
same and hence the name of the accused, if known should also be disclosed.

There are three categories of delay in FIR-

a)Delay by an informant in lodging FIR.

b)Delay in recording the FIR. by the officer in charge of the police station.

c)Delay in dispatching the FIR to the magistrate.

In Bathula Nagamalleswara Rao & Ors. Vs. State Rep by public prosecutor, it was
held that delay in lodging an FIR shall not be fatal if it is accompanied with suitable
reason.An undue delay in lodging an FIR is always looked at with suspicion

2) Can FIR be lodged on a telephone or by means of telegram?

In the above situation ,a case may not be registered as it leaves the other person in
doubt of authenticity and moreover it does not even satisfy the tests of section 154
of Criminal Procedure Code which demands the oral statement to be reduced into
writing ,to be read over and admitted correctly and signed by the informant.

Exceptions are always there in all situations and similarly we see that in Sukharam
vs. State of Maharashtra, it was held that it is not important for the informer to be
present personally before the police for registration of an FIR.
It can be recorded on telephone or even through e-mail provided that the facts of the
case are not ambiguous and hence it can be treated as a FIR.

It has been seen that in many police stations of India, even a message on email or
whatsapp, can be registered as First Information Report, provided that they are not
vague and all valid and necessary information has been provided.

3) Can an informant’s later version be regarded as FIR?

The answer to the above statement is no.

As FIR is the one on which investigation originally started and any later statement
during an investigation, even if found true won’t be admitted as FIR.

4) Is there any such thing as a second FIR?

In the case of Mokab Ali & Others vs. State of West Bengal,it was held by the court
that no first information report can be filed in a murder case after an inquest has
begun.It is ensured that only the first statements and story of informant is to be
penned down in the FIR and in cases of second complaint,there is no scope of getting
a first hand information and hence it is narrowed down to zero possibility.

5) Are confessional statements accepted as FIR or not?

If the FIR is a confessional one, it can be admissible. A confession is received in

evidence on the presumption that no person will voluntarily make a statement which
is against his or her interest, unless it is true. In case where there is confession made
by the accused,the court decides to accept it by two factor i.e. on the basis that
whether the confession is voluntary and other is that whether the confession is true
and trustworthy.

6) What if the informant files a false FIR?

False complaint being registered as FIR is an inescapable phenonmenon and hence
it cannot be ignored. Lodging a false complaint in India is punishable offence under
section 182 and section 211 of the Indian Penal Code.

According to section 182 there is prescribed a punishment for 6 months and a fine
in case of any person registering a false complaint to a public servant ,on the basis
of which the said public servant takes a certain action which he wouldn’t have had
taken otherwise.

According to section 211,there is no use of the term ‘public servant ‘and hence
accordingly any person who starts a criminal proceeding against any other person
on the basis of filing false information to cause injury to the alleged person is liable
to face imprisonment for a period extending to two years. Also if the charge discloses
an offence which is punishable by death or to a minimum sentence of imprisonment
up to 7 years then the informant is punishable with imprisonment for a maximum
period of 7 years.

7) Is there any remedy available to persons against whom false FIR is filed?

A person against whom FIR is filed which is false and baseless then in that case as
a precautionary step he has the freedom to apply for anticipatory bail under section
438 of the criminal procedure code, 1973.

The aggrieved can also file a case for defamation. He has also the right to file a
petition under section 438 of the code of criminal procedure, 1973 praying to quash
the FIR on the basis of the FIR. being a false allegation and he being not guilty.

8) Can a FIR be quashed?

There are provisions in our Indian legal system and there is precedence of FIR being
quashed if characterised by lawful grounds by virtue of section 482 of the Code of
Criminal Procedure, 1973.
The circumstances when the proceedings could be quashed are –

1) When the allegations made as complaints or statements by the witntess, informant

make absolutely no case or when the complaint does not disclose the essential
ingredients of an offence.

2) When the allegations and statements are so absurd that no conclusion can be
reached about there being a sufficient ground for proceeding against the accused.

3) Under section 156(1) of the code except under an order of a magistrate ,then
within the purview of section 155(2) of the code if the allegations mentioned in the
FIR do not disclose a cognizable offence, justifying an investigation by police
officers then it can be quashed.

4) When the criminal proceedings are a result of mala-fide intention and with an
ulterior motive for seeking vengeance on the accused.

In the case of Devendra & Ors.vs. State of U.P & Anr., it was held that the high
courts could exercise its jurisdiction under section 482of the Cr.P.C, if the
allegations made in the FIR do not constitute any offence and hence in such case
the superior courts will not encourage any harassment in a criminal court for nothing.

9) What is a zero FIR?

A type of FIR that can be filed in any police station regardless of the place of
incidence or jurisdiction. However after investigating and filing it with the
magistrate, it transferred to the police station which has the competent jurisdiction.
It is to be noted that a normal FIR has a proper serial number on the contrary the
zero FIR is registered in any police station and hence is not numbered. The police
station where the zero FIR is originally registered is supposed to make a basic
investigation into the case before passing it on to the other police station which has
its competent jurisdiction.
10) What is E-FIR?

E-FIR is a short form for electronic FIR and it can be filed in cases of cognizable
offences like rape, murder, dowry deaths etc.Its main agenda is to protect the identity
of such victims who may not be able to file FIR at the nearby police station for
reasons such as society pressure, unablility to face the society etc.

Different states may have different patterns for lodging an E-FIR.

FIR: WIKIPEDIA
A first information report (F.I.R.) is a document prepared by police organizations in
countries including India, Bangladesh, Pakistan etc. when they receive information
about the commission of a cognisable offence, or in Singapore when the police
receives information about any criminal offence. It generally stems from a complaint
lodged with the police by the victim of a cognizable offense or by someone on his
or her behalf, but anyone can make such a report either orally or in writing to the
police. Police investigation follows most F.I.Rs.
For a non-cognizable offense an entry in a community service register is made.
Each F.I.R. is important as it sets the process of criminal justice in motion. It is only
after the F.I.R. is registered in the police station that the police take up investigation
of most types of cases. Anyone who knows about the commission of a cognizable
offence, including police officers, can file an F.I.R.
As described in law:
 When information about the commission of a cognizable offence is given
orally, the police must write it down.
 The complainant or supplier of the information has a right to demand that the
information recorded by the police be read to him or her.
 Once the information has been recorded by the police, it must be signed by
the person giving the information.
 The complainant can get a free copy of an F.I.R.
An F.I.R. includes date, time, place, detail (of events), description (of person(s)).
FIR: LEGALSERVICES INDIA

What is First Information Report (FIR)

The first information report means an information recorded by a police officer on
duty given either by the aggrieved person or any other person to the commission of
an alleged offence. On the basis of first information report, the police commences
its investigation. Section 154 of the Code of Criminal Procedure, 1973 defines as to
what amounts to first information.

The said section reads as under:-

154. Information in cognizable cases

1. Every information relating to the commission of a cognizable offence, if given
orally to an officer-in-charge of a police station, shall be reduced to writing
by him or under his direction, and be read over to the informant; and every
such information, whether given in writing or reduced to writing as aforesaid
shall be signed by the person giving it, and the substance thereof shall be
entered in a book to be kept by such officer in such form as the State
Government may prescribe in this behalf.
2. A copy of the information as recorded under sub-section
(i) shall be given forthwith, free of cost, to the informant.
3. Any person aggrieved by a refusal on the part of an officer-
in-charge of police station to record the information referred to in sub-section
(1) may send the substance of such information, in writing and by post to the
Superintendent of Police concerned, who if satisfied that such information
discloses the commission of a cognizable offence shall either investigate the
case himself or direct an investigation to be made by any police officer
subordinate to him, in the manner provided by this Code, and such officer
shall have all the powers of an officer-in-charge of the police station in
relation to that offence.

The provision in section 154 regarding the reduction of oral statement to writing and
obtaining signature of the informant to it, is for the purpose of discouraging
irresponsible statement about criminal offences by fixing the informant with the
responsibility for the statement he makes.

Refusal by the informant to sign the first information is an offence punishable under
section 180 of the Indian Penal Code. The absence of signatures on the first
information report by the informant, however, is not necessary to the extent that it
will vitiate and nullify such report. The first information is still admissible in
evidence.

In order to constitute a FIR in terms of section 154 of the Code. of Criminal

Procedure, 1973 two conditions are to be fulfilled: -
(a) what is conveyed must be an information; and
(b) that information should relate to the commission of a cognizable offence on the
face of it.

In other words, FIR is only a complaint to set the affairs of law and order in motion
and it is only at the investigation stage that all the details can be gathered. In one of
the judgments, the Madhya Pradesh High Court observed that the report of the crime
which is persuading the police machinery towards starting investigation is FIR,
subsequent reports are/were written, they are not hit under section 161 of the Code
of Criminal Procedure, 1973 and cannot be treated as such.

Who can File a FIR?

First Information Report (FIR) can be filed by any person. He need not necessarily
be the victim or the injured or an eyewitness. First Information Report may be merely
hearsay and need not necessarily be given by the person who has firsthand
knowledge of the facts.

Where to File a FIR?

An FIR can be filed in the police station of the concerned area in whose jurisdiction
the offence has occurred. A first are to obtain information about the alleged criminal
activity so as to be able to take suitable steps for tracing and bringing to book the
guilty person.
Its secondary though equally important object is to obtain early information of an
alleged criminal activity and to record the circumstances before the trial, lest such
circumstances are forgotten or embellished.

Why FIR should be filed promptly

This is the golden principle of law prescribed in the Code of Criminal Procedure,
1973 that the First Information Report should always be filed promptly and without
wasting any time. Such type of report gains the maximum credibility and is always
welcome and appreciated by the courts.

According to Supreme Court the FIR recorded promptly before the time afforded to
embellish or do away with the evidence is useful. It eliminates the possible chance
of giving rise to suspicion.

Is there time duration fixed for Filing an FIR?

We have already emphasized this fact that as far as possible and practicable, every
FIR should invariably be filed promptly, expeditiously and without wasting any
time. There may be circumstances where some concession of time must be given in
filing the FIR But there must be cogent reasons for reasonable delay in filing the FIR
under the compelling circumstances. Judges with lot of wisdom and experience can
use their discretion judiciously and in the interest of justice in each and every case.
However, no possible duration of time can be fixed for applying the test of
reasonableness to the lodging of an FIR as we have already explained. It depends
upon facts and circumstances of each case. The delay in lodging the FIR as such is
not fatal in law if the prosecution substantiated the factual difficulties encountered
by the persons lodging the report.

Following are the reports or statements which do not amount to be an FIR:

1. A report or a statement recorded after the commencement of the investigation
(sections 162 and 163 of the Code of Criminal Procedure, 1973).
 2. Reports not recorded immediately but after questioning of witnesses.
3. Reports recorded after several days of developments.
4. Information not about occurrence of cognizable offence but only cryptic
message in the form of an appeal for immediate help.
5. Complaint to the Magistrate.
6. Information to beat house.
7. Information to the Magistrate or police officer on phone.
8. Information received at police station prior to the lodging of an F.LR.

It was held in Damodar v. State of Rajasthan, AIR 2003 SC 4414: 2003 AIR
SCW 5050: 2003 (4) RCR (Cri) 355 (SC) that if the information was conveyed to
police on telephone and DO entry was made, it will not constitute an FIR even if the
information disclosed commission of cognizable offence.

Supreme Court Guidelines on FIR

Supreme Court has given Directions to be followed in regards to Registration of an
FIR, these directions are discussed.

BAIL
Bail denotes the provisional release of an accused in a criminal matter in which the
court is yet to announce a judgment. The expression 'bail' means a security deposited
to appear before the court for release. Originally, the word is derived from an old
French verb ‘bailer’ which means ‘to give’ or ‘to deliver’. A ball is granted to an
accused after presenting a bail bond to the court.
The primary objective of arrest is to ensure that the accused in a criminal case
appears before the court for the conveyance of justice. However, if the person’s
presence can be guaranteed for the court trial without putting the person in a jail, it
would unfair and unjust to violate a person’s liberty. Thus, bail can be granted as a
conditional liberty to the accused.
Types Of Bail In India
There are commonly 3 types of bail in India which a person can apply depending
upon the stage of the criminal matter:
1. Regular Bail: A regular bail can be granted to a person who has already been
arrested and kept in police custody. A person can file a bail application for
regular bail under Section 437 and 439 of the CrPC.
2. Interim Bail: Interim bail is a bail granted for a short period of time. Interim
bail is granted to an accused before the hearing for the grant of regular bail or
anticipatory bail.
3. Anticipatory Bail: A person who discerns that he may be arrested by the
police for a non-bailable offence, can file an application for anticipatory bail.
It is like an advance bail obtained under Section 438 of the CrPC. A bail under
Section 438 is a bail before arrest and a person cannot be arrested by the police
if the anticipatory bail has been granted by the court.
How To Apply For Bail In India?
The process to apply for a bail depends upon the stage at which the criminal matter
is. In case, the person is not yet arrested by the cour, but fears that an FIR may be
filed against him with the police, the person can hire a criminal defence lawyer in
India to file an anticipatory bail application. For instance, if the person has an
apprehension that his wife may file a false 498A case against him, he can obtain an
anticipatory bail before the police register a complaint against him.
If the police have already arrested the person and taken him to the police station,
the bail lawyer can file a bail as per the bail application format given in the CrPC.
The bail application is to be filed and approved by the court and then presented to
the police to get the arrested out of jail.
The bail amount or the bail bond to be deposited depends upon the discretion of
court. However, a standardised bail amount is set and deposited for bail in less
serious criminal cases.
Conditions For Bail In Bailable Offences
Section 436 of the CrPC lays down that a person accused of any bailable offence
under the IPC can be released on bail. Bailable offences under the IPC include
unlawful assembly (Section 144 of CrPC), payment of bribe during elections,
fabrication of false evidence, sale of poisonous food or drink knowingly,
participation in riots, being armed with deadly weapon, furnishing false information,
threat of injury to public servant, selling adulterated drug, selling obscene book,
causing death by negligence (Section 304A), stalking, criminal defamation, etc.
In any of the above-mentioned offences, a person can hire a bail/anticipatory bail
lawyer in India to apply for bail. However, there are certain conditions on which a
bail can be granted in case the person is arrested or is likely to be arrested for a
bailable offence:
1. There are sufficient reasons to believe that the accused has not committed the
offence.
2. If, as per the court, there is sufficient reason to conduct further enquiry in the
matter.
3. The person is not accused of any crime for which is punishable with death,
imprisonment for life or imprisonment up to 10 years.
Conditions For Bail In Non-Bailable Offenses
An accused does not have the right to apply for bail in case of a non-bailable offence.
The power to release a person on bail in a non-bailable offence lies with the
court. Section 437 of the CrPC lays down the power of court to grant a bail to a
person even in a non-bailable offence.
Non-bailable offences under the IPC include sedition, waging or attempting to wage
war against the government, counterfeit of Indian currency, adulteration of drug,
murder (Section 302), culpable homicide not amounting to murder (Section 304),
dowry death (Section 304B), abetment of suicide, abetment of suicide, abduction of
child under 10, trafficking of person, rape (Section 376), cruelty by husband or his
relatives (Section 498A), etc.
A person can get legal advice from a good criminal law lawyer in India to apply
for a bail in non-bailable offence. The conditions on which the court grants a bail in
a non-bailable offence are as follows:
1. If the accused is a woman or child, bail can be granted in a non-bailable matter.
2. If there is a lack of adequate evidence, the court can grant a bail in non-
bailable offence on discretion.
3. If there is a delay in registering the FIR by the complainant.
 4. If the person accused is physically or gravely sick.
5. If there is some corroboration as to personal animosity between the accused
and the person who filed the criminal matter.
Cancellation Of Bail
The court has the power to cancel a bail granted even at a later stage. The power of
the court is laid down under Section 437(5) and 439(2) of the CrPC. The court can
cancel the bail granted by it and give directions for the arrest of the person in police
custody. However, the court does not have the power to cancel a bail granted by a
police officer.

Bail under CrPC

By
Mahak Gandhi
-
July 21, 2019
0
2536
The term bail is not defined under CRPC. Bail is a kind of security which is given
by the accused to the court that he will attend the proceedings against the accusations
made upon him and include personal bond and bail bond.
Bail is a mechanism used to ensure that the accused is present before the court.
The two authorities that can grant bail are police and courts.
The basic and fundamental object of bail is to ensure the attendance of accused at
the trial before court.
The sections from 436 to section 439 deal with the provisions of bail.
Bail when and when not to be granted:
The code of criminal procedure, 1973 has defined the term bailable offence by
stating that an offence which is shown as bailable in the first schedule, or which is
made bailable by any other law for the time being in force; and the term non-bailable
offence states the meaning that any other offence other than bailable offence.
The distinction between bailable and non-bailable offences is based on the gravity
of the offence, danger of accused absconding, tampering of evidence, previous
conduct, health, age and sex of the accused person. Though the schedule for
classification of offences as bailable or non bailable is provided in Crpc; however, it
is mostly the offences which are punishable with imprisonment for not less than
three years that are classified as non-bailable.
The purpose of bail is to ensure the appearance of accused before the court whenever
required but in certain cases, granting bail is not required.
The basic rules of grant or denial of bail may simply be summarized as:
a. There are only two kinds of offences bailable and non bailable offences
b. In case of bailable offences section 436 CRPC it is the right of accused to demand
and be granted bail.
c. The certain basic criteria while exercising his judicial discretion for grant or denial
of bail in case of non bailable offences has been laid down in section 437 CrPc in
the cases related to non-bailable offences. Some of these criteria include the nature
of offence, past criminal records and probability of guilt.
d. Section 438 CRPC deals with anticipatory bail in cases where there is an
apprehension to arrest.
There are other factors also which are to be kept in mind by the hon’ble court before
granting of bail like the possibility of threatening of witness, possibility of evidence
being tampered etc.
In Free Legal Aid Committee, Jamshedpur vs. State of Bihar, the Supreme Court
ruled that in a session’s case if the magistrate has granted bail, the accused need not
seek bail from the court of sessions.
There rose an interesting question in Haji Mohamed Wasim v. State of U.P. before
the Allahabad High Court questioning the validity of bail granted by police officers.
In the instant case, the accused on bail which was granted by police preferred to not
appear before the court. Hence here the trial court issued a non-bailable warrant
which was then challenged by the accused under section 482. It was hence ruled by
the court that he has to take fresh bail from trial court.
Bail by Police
The Police Officer power, to release a person on bail who has been accused of an
offence and is in his custody, is categorised under the two heads:
(A)When without any warrant the arrest is made and;
(B)When with the issuance of warrant the arrest is made .
The Power to grant bail by police has been conferred upon them by the virtue of the
following sections:
1) Sections 42, 43, 56, 59, 169, 170, 436, 437 and Schedule I Column 5 of the Code.
2) The powers of police to grant bail under head are controlled by directions
endorsed under Section 71 of the Code. It is under Section 81 of the Code however,
which empowers the police officer to grant bail when the person arrested or produced
before him has been accused of the commission of a bailable offence even when no
direction to such effect has been given in the warrant. In case of non- bailable offence
the endorsement on the warrant has to be strictly followed. Endorsement on warrant
however should be by name.
Bail when arrest made without warrant
(i) Bail under section 42 Cr. P.C.:
Section 42 Cr. P.C. 1973 can be invoked when the offender refuses to give name and
address or gives a name and address which the police officer considers to be false.
If those particulars are within the knowledge of the police officer, neither the
question of arrest nor the question of bail will arise. As soon as name and address
has been ascertained the police officer cannot detain him, if he is willing to execute
the necessary bonds.
The power to arrest and to release on bail can be exercised by any Police Officer not
necessarily by an officer-in-charge of the Police station because this section has been
enacted to provide for a particular non cognizable offence does not put any
restrictions on the power of a Police Officer to enlarge a person on bail after the
correct name and residence have been ascertained.
(ii) Bail under section 43 Cr. P.C.:
The Code of Criminal Procedure provides for the arrest of person by a private person
also though his powers of arrest are very limited.
After the arrest has been made the arrested person should be, without unnecessary
delay handed over to a police officer, or in his absence, be brought to the nearest
police station. The question of bail will depend upon what opinion the police officer
forms about the person brought before him. If there is no sufficient ground to believe
that the arrested person has committed any offence, he shall at once be released.
If there is reason to believe that such person comes under the provisions of section
41, a police officer shall re-arrest him and then the normal procedure of
investigation, determination of the question whether a non-bailable case is made out
or not and the desirability of release on bail etc. will arise. If there is reason to believe
that he has committed a non-cognizable offence he shall be released as soon as his
name and residence have been ascertained as provided under section 42 Criminal
Procedure Code.
A chowkidar, not being a police officer is not entitled to receive a person arrested
under this section. But where a chowkidar is a police officer as under the Chota
Nagpur Rural Police Act, (Act I of 1914) he can received a person arrested under
section 59, Criminal Procedure Code (old) and detain him in custody.
iii) Bail under sections 56, 57 and 59 Cr. P.C.:
Section 56 mandates that a police officer affecting an arrest without warrant must
take or send the offender arrested, before a magistrate having jurisdiction in the case
of before the officer in charge of a police station. But in section 56, there is an inbuilt
provision authorizing police officer to admit the arrested offender to bail, but power
of the police officer is subject to the provisions herein contained as to bail. Section
56 of the new Code corresponds to section 60 of the old Code.
Section 57 provides that person arrested not to be detained more than twenty four
hours. The intention of the legislature is that an accused person should be brought
before a Magistrate competent to try or commit with as little delay as possible.
Section 57 is pointer to the intendment to uphold liberty and to restrict to the
minimum curtailment of liberty.
It has been stated in Section 59 of the Code that any person who has been arrested
by a police officer shall be discharged only by his own bond, or on bail, or under
special order of a magistrate.
iv) Bail under section 169 Cr. P.C.:
The section refers to the grant of bail not at the start but only on the making of an
investigation under Chapter XII of the Code. Till then bail is not authorized under
the provisions of this section. The power to release on bail a person in custody vests
in officer in charge of the police station or the police officer making the
investigation.
An officer-in-charge of the Police Station or an investigating officer cannot release
a person on bail if he has appeared as an accused before the magistrate on the basis
of a complaint in respect of the incident which the police is also investigating.
If the officer in charge of the police station on the investigating officer takes a bond
from the accused for his appearance before the police it is void ab initio.
The admission to bail, therefore, is only a provisional arrangements and the
magistrate may either discharge the bond on order the re-arrest of the accused. The
powers of an officer in charge of the police station on the investigating officer to
admit a person to bail are not hampered by the nature of offence of which he is
accused.
v) Bail under section 170 Cr. P.C. :
Under this section the authority to grant bail accrues to an officer in charge of the
police station, “if the offence is bailable”.
It is submitted that a station officer is empowered to grant bail if investigation has
disclosed the offence to be bailable and it is immaterial what the initial accusation
against him was. Under the imperative provisions of section 170, therefore, an
officer in charge of the police station has either to forward the accused in custody or
if the offence is bailable or on investigation found to be bailable, to accept bail for
his appearance before a magistrate, he cannot entertain an application for the
withdrawal of a complaint and, therefore, he cannot be discharged an accused.
vi) Bail under section 437 Cr. P.C.:
The power to release on bail a person accused of a non-bailable offence is conferred
upon only one class of police officers, namely an officer-in-charge of the Police
Station under section 437 sub Section (I).
When an officer in charge admits an accused to bail, it is mandatory for him to record
the reasons or special reasons in the case diary and preserve the bail bonds until they
are discharged either by the appearance of the accused in court or by the order of a
competent court. For the purpose of bail in non-bailable offence, the Legislature has
classified them under two heads: (1) those which are punishable with death or
imprisonment for life; (2) those which are not so punishable. The age or sex or
sickness or infirmity of the accused cannot be considered by a police officer for the
purpose of granting bail. These matters may be taken in view by a court only. An
officerin-charge of the police station may grant bail only when there are no
reasonable grounds for believing that the accused has committed a non-bailable
offence or when the non-bailable offence complained of is not punishable with death
or life imprisonment.
Bail by Police when arrest made in pursuance of warrant
The relevant provisions of Code of Procedure in connection with above heading are
confined in section 71 and 81 of Criminal Procedure Code.
(i) Bail under section 71 Cr. P.C.:
The relevant provisions of Code of Procedure in connection with above heading are
confined in section 71 and 81 of Criminal Procedure Code. It is a matter entirely in
the discretion of the court issuing a warrant under this section to give a direction for
the release of the arrested person on bail or not. Even in bailable offence, a court
may not give such direction. In the case of Lachhmi Narain Vs. Emperor, the above
has been stated.
When a person who is to be arrested is not arrested until the date on which he has
to attend the court, the direction regarding the taking of bail lapses.
(ii) Bail under section 80 & 81 Cr. P.C. :
When a warrant of arrest is executed outside the district in which it was issued any
police officer who is not a District Superintendent of police or the Commissioner of
Police may release an arrested person according to the directions contained in the
endorsement. But a District Superintendent of Police, the Commissioner of Police
in presidency town with in the local limits of whose jurisdiction the arrest was made
shall release on bail the arrested person, if the offence is bailable and such person is
ready and willing to give bail to their satisfaction.
A police officer cannot release a person on bail simply because the arrested person
is accused of a bailable offence. He has to comply strictly with the contents of the
endorsement if any.
Bail to Lunatics :
Section 330, Cr. P.C. Bail cannot be claimed as a matter of right for persons of
unsound mind. Courts have been vested with great powers and wide discretion in the
matter of grant or refusal of bail. A Magistrate may release a person of unsound mind
on bail even though he is charged of an offence of the most heinous type and may
refuse bail in bailable case if he is of the opinion that bail should not be allowed.
An accused of unsound mind may be released on security, irrespective of the offence
with which he is charged not only on the finding by the court that the accused is of
unsound mind, but also prior to such finding, during the pendency of the inquiry into
his state of mind [section 328 (2)]
Bail for Contempt in presence of Court under section 346 of Cr. P.C.
When an offence, as is described in section 175, Section 178, 179, 180 or 228 of
I.P.C. is committed in the view or presence of a Criminal Court and that court,
instead of proceeding under section 345, Cr.P.C., considers that the person accused
of any of the offences referred to above should be imprisoned otherwise than in
default of fine, or that a fine exceeding two hundred rupees should be imposed upon
him, then the court after it has recorded the facts constituting the offence and the
statement of the accused, may forward the case to a Magistrate having jurisdiction
to try the same, and for the appearance of such accused person may require security
to be given before such Magistrate or shall forward such person in custody to such
Magistrate in case sufficient security is not given under this section as under the
provisions of section 340, the person complained against has not to apply for bail to
the court. It is the discretion of the court forwarding the complaint either to ensure
the attendance of the accused by demanding a security for his appearance before the
transferee Magistrate or it may just inform the accused of the date on which he has
to appear before that court. He cannot be taken in custody merely because he has not
applied for bail. He can be taken in custody if security is demanded from him and
he does not give sufficient security.
Bail to First offender under section 360, Cr. P.C.
Sub-section (1) of section 360, Criminal Procedure Code, deals with the power of a
court or a Magistrate of the second class specially empowered by the State
Government in this behalf, to release a convicted offender on his entering into a
bond, with or without sureties, to appear and receive sentence when called upon
during such period (not exceeding three years) as the Magistrate may direct, and in
the mean time to keep the peace and be of good behaviour. The Magistrate thus has
discretion either to punish the offender with imprisonment or release him on
probation of good conduct.
Post-Conviction and Pre-Appeal Bail under section 389 Cr. P.C. :
The section contemplates post-conviction and pre-appeal period. Pending an appeal
against conviction appellate Court may release the convict on bail and High Court
can exercise this power when appeal lies to Sessions Court. So far as the court
convicting the accused is concerned, the court is bond to admit the accused to bail
pending order passed by appellate court or High Court when (a) the accused was
already on bail and has been sentenced to imprisonment for a term not exceeding
three years; or (b) when the offence was a bailable one. Even on fulfilment of the
condition court on convicting the accused may refuse bail if there exists a special
reason. Under this section an intention to present an appeal on the part of the
convicted person is sufficient reason to justify the release of a convicted person on
bail. It may further be noted that an order of bail under this section is for a limited
period only and is applicable only to “convicted” persons and not to those who are
bound over.
Bail while making reference under section 395 Cr. P.C. :
When a Magistrate makes a reference under section 395, CrPC, to the High Court
for its opinion on the validity or otherwise of any act, Ordinance or Regulation or
under any other section of this act, he may then in such case, pending the High
Court’s decision, either commit the accused to jail or release him on bail to appear
when called upon. The Magistrate will exercise his discretion in favour of the
accused or against him according to the seriousness of the charge and severity of
punishment provided in that act, Ordinance or Regulation.
Bail During Revision Under Section 397 Cr. P.C. :
The Sessions Court and the High Court in exercise of revisional power can call for
records of inferior courts for the purpose of satisfying himself as to the correctness,
legality or propriety of any finding, sentence or order recorded or passed and as to
the regularity of any proceedings of such inferior court. When such revisional Court
calls for the record of an inferior Court, he may direct that the execution of the
sentence or order be suspended and, in case the accused is in confinement, then he
may be released either on bail or on his own bond pending the examination of the
record.
Bail under Section 437 Cr. P. C. Section 437:
It deals with bail in bailable offence. Grant of bail is a rule whereas refusal in this
context is an exception. A person accused of bailable offence has the right to be
released on bail. Bail in cases of bailable offences is compulsory bail. It is a
discretionary option to grant a bail to a person accused of bailable offence. When a
person who is suspected of committing a bailable offence is produced before a
Magistrate and he is prepared to give bail, Magistrate has to release him on bail
without having any other option.
Bail for non-bailable Offence: Under Section 437 Cr. P. C.:
The provisions of section 437 empower two authorities to consider the question of
bail, namely-
(1) a “court” which includes a High Court and a Court of Session, and
(2) an officer-in-charge of the police station who has arrested or detained without
warrant a person accused or suspected of the commission of a non-bailable offence.
Although this section deals with the power or discretion of a court as well as a police
officer in charge of police station to grant bail in non- bailable offences it has also
laid down certain restrictions on the power of a police officer to grant bail and certain
rights of an accused person to obtain bail when he is being tried by a Magistrate.
Section 437, Criminal Procedure Code, deals with the powers of the trial court and
of the Magistrate to whom the offender is produced by the police or the
accused surrenders or appears, to grant or refuse bail to person accused of, or
suspected of the commission of any non-bailable offence.
Criteria for Judicial Discretion to Grant or Refuse Bail
This judicial discretion has to answer one of the most important fundamental rights
guaranteed under Article 21 of the Constitution, namely, personal liberty. Grant of
bail may he gifting personal liberty to a person who has been arrested or who is
anticipating an imminent arrest. On the other hand, refusal of bail implies sending
that person to jail, or to police custody, as the case may be, and thereby depriving
that person of his personal liberty.
In fact, the question of “bail or jail?” has a bearing not only on the individual
concerned but also on the society in general, for, an innocent person sent to jail may
not augur well for a just society whereas a dangerous and hardened criminal released
on bail can do more harm to the society by way of destroying the evidence,
threatening the witnesses, evading the judicial process or may be by committing
more offences. The importance of this judicial discretion cannot therefore be
understated.
Frequently Asked Questions:
1) When can a bail be denied?
a. As per section 436 (2), if a person has violated the conditions of the bail bond
earlier, the court may refuse to release him on bail, on a subsequent occasion in the
same case. He can also be asked to pay penalty for not appearing before the court in
the proceedings against him
b. It is clear that the provisions related to bail in case of non-bailable offences gives
a discretionary power to the police and to the court. However the power is not
without any restraint. Section 437 disallows to be given bail under following
conditions:
 If it appears there is a reasonable ground for believing that he has committed
an offence punishable with life imprisonment or death.
 If such offence is cognizable and the person has been previously been
convicted of an offence with death or life imprisonment
2) Is cancellation of bail possible?
Although there was no provision for cancellation of bail but in Talib’s case (AIR
1958) it has been held by the hon’able court that the absence of such provision not
as a lacuna but as a recognized power of high court for cancellation of bail.
According to section 437 (5), any court which has released a person on bail may
direct a person to be arrested or put into custody.
Section 439 CRPC also grants power to the high court and the courts of session to
cancel the bail and put the person into custody.
3) Can a bail be refused in cases of bailable offences?
Section 436 (2) of the chapter 38 of Crpc has empowered the court for denial of bail
in cases of bailable offences if the accused fails to comply with the conditions of
bail bonds.

DETENTION
Detention is the process whereby a state or private citizen lawfully holds a person
by removing his or her freedom or liberty at that time. This can be due to
(pending) criminal charges preferred against the individual pursuant to
a prosecution or to protect a person or property. Being detained does not always
result in being taken to a particular area (generally called a detention centre), either
for interrogation or as punishment for a crime (see prison).
The term can also be used in reference to the holding of property for the same
reasons. The process of detainment may or may not have been preceded or followed
with an arrest.
Detainee is a term used by certain governments and their armed forces to refer to
individuals held in custody, such as those it does not classify and treat as
either prisoners of war or suspects in criminal cases. It is used to refer to "any person
captured or otherwise detained by an armed force."[1] More generally, it means
"someone held in custody."[2] The prisoners in Guantánamo Bay are referred to as
"detainees".
Article 9 of the Universal Declaration of Human Rights provides that "[n]o one shall
be subjected to arbitrary arrest, detention or exile." In wars between nations,
treatment of detainees is governed by the provisions of the Fourth Geneva
Convention
Definition of detention
Any form of imprisonment where a person's freedom of liberty is removed can be
classed as detention, although the term is often associated with persons who are
being held without warrant or charge before any have been raised. Being detained
for the purposes of a drugs search is tantamount to a temporary arrest, as it is not yet
known whether charges can be brought against an individual, pending the outcome
of the search. The term 'detained' often refers to the immediacy when someone has
their liberty deprived, often before an arrest or pre-arrest procedure has yet been
followed. For example, a shoplifter being pursued and restrained, but not yet
informed he/she is under arrest or read his rights would be classed as 'detained'.

Detention of a suspect
The detention of suspects is the process of keeping a person who has been arrested in
a police-cell, remand prison or other detention centre before trial or sentencing.
The length of detention of suspected terrorists, with the justification of taking an
action that would aid counter-terrorism, varies according to country or situation, as
well as the laws which regulate it.
The Terrorism Act 2006 in the United Kingdom lengthened the 14-day limit for
detention without an arrest warrant or an indictment from the Terrorism Act 2000 to
28 days. A controversial Government proposal for an extension to 90 days was
rejected by the House of Commons. English criminal law requires the
detainer/arrestor to have reasonable grounds to suspect (reasonable suspicion) when
detaining (or arresting) someone.
Indefinite detention[edit]
Indefinite detention of an individual occurs frequently in wartime under the laws of
war. This has been applied notably by the United States after the September 11, 2001
attacks. Before the Combatant Status Review Tribunals, created for reviewing the
status of the Guantanamo detainees, the United States has argued that it is engaged
in a legally recognizable armed conflict to which the laws of war apply, and that it
therefore may hold captured al Qaeda and Taliban operatives throughout the
duration of that conflict, without granting them a criminal trial.
The U.S. military regulates treatment of detainees in the manual Military Police:
Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other
Detainees, last revised in 1997.
The term "unlawful combatant" came into public awareness during and after the War
in Afghanistan (2001–present), as the U.S. detained members of the Taliban and al-
Qaeda captured in that war, and determined them to be unlawful combatants. This
had generated considerable debate around the globe.[3] The U.S. government refers
to these captured enemy combatants as "detainees" because they did not qualify
as prisoners of war under the definition found in the Geneva Conventions.
Under the Obama administration the term enemy combatants was also removed
from the lexicon and further defined under the 2010 Defense Omnibus Bill:
Section 948b. Military commissions generally: (a) Purpose-This chapter establishes
procedures governing the use of military commissions to try alien unprivileged
enemy belligerents for violations of the law of war and other offenses triable by
military commission.

Arrest and detention—overview

The police powers of arrest are principally governed by the Police and Criminal
Evidence Act 1984 (PACE 1984).
The term 'arrest' is not defined in PACE 1984. The courts have held that it is an
ordinary English word and whether or not a person has been arrested depends not on
the legality of the arrest but on whether he has been deprived of his liberty of
movement.
Under PACE 1984 a police officer must inform a person that he is under arrest and
the reason why. A failure to do so will render the arrest unlawful.
In a recent controversial decision by the Court of Appeal (R v Iqbal [2011] EWCA
Crim 273) it was held that a man who had been handcuffed by the police in
connection with a criminal offence was not under arrest because he had not been told
that he was under arrest and the officer had not considered that he was making an
arrest.
Police powers of arrest without warrant
The police powers of arrest without warrant were substantially changed by
amendments to PACE 1984 by the Serious Organised Crime and Police Act
2005 (SOCPA 2005). The historical distinction between arrestable and non-
arrestable offences was abolished.
Under the new provisions police have the power to arrest without warrant for any
offence, subject to the requirement that a police officer must have reasonable
grounds for believing that an arrest is necessary for one or more of the reasons set
out in PACE 1984. See Practice Note: Is an arrest necessary?
A new PACE Code of Practice (Code G) provides guidance to police officers in
exercising their powers of arrest under PACE 1984. The code emphasises the right
to liberty and provides that it is essential that the power of arrest is exercised in a
'non-discriminatory and proportionate manner'. Therefore, the less serious a
suspected offence, the less likely an arrest will be justified if there is another sensible
option, such as service of a summons.
PACE 1984 expressly preserves certain powers of arrest enacted prior to PACE
1984. These are set out in PACE 1984, Sch 2.
There also remains a common law power for a police officer (or citizen) to arrest a
person for a breach of the peace if:
1. a breach of the peace is committed in his presence
2. the person making the arrest reasonably believes that such a breach will be
committed in the immediate future, or
 3. a breach of the peace has been committed or the person making the arrest
reasonably believes that a breach of the peace has occurred and that a further
breach is threatened
Police powers to arrest under warrant
There are a number of statutes that authorise the arrest of a person suspected of
committing a criminal offence by use of a warrant.
The most important statute is the Magistrates' Courts Act 1980 (MCA 1980).
MCA 1980 gives the magistrates' court power to issue a warrant after hearing
evidence on oath from a police officer that a person has, or is suspected of having,
committed an offence. Such a warrant may be endorsed with or without bail.
If endorsed with bail the person, once arrested, is issued a date by the police when
he is required to appear before the court. If the warrant is not backed for bail the
person, following his arrest, will be kept in custody and brought before the court at
the next available sitting.
The police have other statutory powers to arrest without warrant.
These include:
1. the power under the Bail Act 1976 to arrest a person for failure to surrender
to court or for breaching his bail conditions
2. the power under PACE 1984 to arrest a person for failure to surrender to
police bail
3. the power under PACE 1984 to arrest a person for the purpose of taking his
fingerprints or samples, and
4. the power under the Terrorism Act 2000 to arrest a person who is reasonably
suspected of being a terrorist
The detention clock
Once a person has been arrested for an offence he will usually be taken to a police
station. At the police station a custody officer will determine whether there is
sufficient evidence to charge the suspect with the offence. Under PACE 1984, if the
custody officer decides that there is insufficient evidence to charge, the person must
be released unless the officer has reasonable grounds for believing that detention
without charge is necessary to secure or preserve evidence or to obtain evidence by
questioning. See Practice Note: Revision of PACE Codes C and H 2014.
The maximum period of detention without charge is generally 24 hours from the
relevant time. The definition of 'relevant time' is set out in PACE 1984. It generally
means the time an arrested person arrives at the first police station he is taken to.
The period of detention without charge may be extended for up to a period of 36
hours from the relevant time. The extension can only be granted if the requirements
of PACE 1984 are satisfied.
Detention beyond 36 hours is only permitted under PACE 1984 where a magistrates'
court issues a warrant of further detention. The procedure and statutory requirements
are governed by PACE 1984.
If the court grants the application, the warrant can be issued up to a maximum of 36
hours. However, this is subject to an overall maximum period of detention without
charge of 96 hours from the relevant time.
The detention clock and the Hookway case
The Divisional Court recently held in R (Chief Constable of Greater Manchester
Police) v Salford Magistrates' Court and Hookway [2011] EWHC 1578
(Admin), [2011] 3 All ER 521, that the PACE detention clock continues to run while
a suspect is on bail. The decision sent shock waves throughout police forces up and
down the country. This was because prior to this decision it had always been
assumed that the time a person spent on police bail did not count for the purposes of
calculating the 96 hour maximum period of detention without charge.
In July 2011 the government introduced emergency legislation to amend PACE
1984. The effect of the amendments is that time spent on police bail will not count
towards the time a person spends in police detention. Therefore, the position has
been restored to the footing that it was commonly thought to be on prior to
the Hookway decision.
Rights of the detainee
Once a person is in custody, they have rights which the custody officer must ensure
is followed through. For example, the detainee is allowed to inform someone of his
whereabouts, he is allowed to ask for a solicitor, he is also allowed free medical help
if he is injured or feeling ill. See Practice Note: Revision of PACE Codes C and H
2014.
The lawyer's role at the police station
A police station adviser can have a profound impact on the course of a criminal trial.
Poor advice can sometimes make the difference between a guilty and not guilty
verdict. This is because the role of a police station adviser is a substantial one.
PACE 1984 Code C defines the lawyer's role as to protect and advance the legal
rights of his clients. This may require:
1. giving advice that has the effect of the client avoiding giving evidence that
strengthens the prosecution case, and
2. intervening in interview to seek clarification, challenge an improper question
or to provide further legal advice
The role of a police station adviser can be difficult and stressful. Often an adviser
will be defending clients who are vulnerable because of age or mental health issues.
In these circumstances it is not always easy to advise, for example, on appropriate
strategies to minimise inferences from silence in interview.
A client will always need to be carefully advised on the range of options available
to him.
In every case the police station adviser must act ethically. This means he must:
1. keep the affairs of his client confidential,
2. avoid acting for more than one client where there is a conflict of interest.

European arrest warrant (EAW)

This is valid throughout all EU Member States and is when a national judicial
authority, such as a court, can issue an EAW to get a suspect extradited. For an EAW
to be valid, the suspect must be accused of an offence incurring a maximum penalty
of at least a year in prison, or must have been already sentenced to at least four
months in prison.
Preventive Detention and its effect on the Constituitonal Law of India, how the
Citizens rights are affected.
Preventive Detention And Constitution of India – Effect on Human Rights
Preventive Detention:
Confinement imposed generally on a defendant in criminal case who has threatened
to violate the law while awaiting trial or disposition or of a mentally ill person who
may harm himself or others – Black Law Dictionary

It is an anticipatory measure and does not relate to an offence while criminal

proceedings are to punish a person for an offence committed by him [Alijan Mja V.
District Magistrate, Dhanbad AIR 1983, SC 1130].

The object of Preventive Detention is not to Punish but to intercept to prevent the
Detenu from doing something prejudicial to the State. The satisfaction of the
concerned authority is a subjective satisfaction in such a manner. [Ankul Chandra
Pradhan Vs. Union of India, AIR 1997, SC 2814].

Arrest as laid down in Chapter V of the Code of Criminal Procedure Code 1973
initiates preventive detention which questions one’s right to liberty and freedom.

The Justification for preventive detention is suspicion or reasonable apprehension,

reasonable probability of the impending commission of an act prejudicial to the state.

A three – Judge Bench of the Supreme Court in Ahmed Noormohmad Bhatti V.

State of Gujarat, AIR 2005 while upholding the validity of the power of the Police
under section 151 of Criminal Procedure Code 1973 to arrest and detention of a
person, without a warrant, to prevent commission of a Cognizable offence, ruled that
a provision could not be held to be unreasonable as arbitrary and therefore
unconstitutional merely because the Police official might abuse his authority.

Article 22 provides that the Detenu under the preventive detention law shall have
the right to have his representative against his detention reviewed by an advisory
board. If the advisory board reports that the detention is not justified, the Detenu
must be released forthwith. If the advisory board reports that the detention is
justified, the Government may fix the period for detention. The advisory board may
conclude its proceedings expeditiously and must express its opinion within the time
prescribed by law. Failure to do that makes the detention invalid.

The Constitution (44th Amendment Act 1978) has amended Article 22 and reduce
the maximum period for which a person may be detained without obtaining the
advisory board from three to two months.

The interpretation of Article 22 Clause 7 Sub clause (a) was best done by the Hon’ble
Supreme Court in Sambhu Nath Sarkar V. State of West Bengal, Section 17A of
the Maintenance of the Internal Securities Act 1971 contained five heads in relation
to which preventive detention could be for a period longer than three months without
any reference to an Advisory Board.

The Supreme Court held Section 17 unconstitutional. The court said that Article
22(7) (a) was an exception to Article 22 (4). Thus Article 22(7) (a) could be made
use of only in exception to and ordinary cases.
Journey of decision from Gopalan to Kharak Singh to Meneka Gandhi
In A K Gopalan V. State of Madras, AIR 1950 SC 27 petitioner filed a writ of Habeas
Corpus against his detention in Madras Jail. It questioned the expression ‘Personal
Liberty’. The issue was whether Preventive Detention Act 1950 ultra vires
Fundamental Rights under Constitution. It was held that the Preventive Detention
act was intra vires the Constitution of India with the exception of Section 14 which
is illegal and ultra vires. It was further held that Article 21 is applicable to preventive
detention and Preventive Detention Act 1950 permits detention beyond a period of
three months and excludes the necessity of consulting an advisory board. It is not
obligatory on the Parliament to prescribe any maximum period.

In Kharak Singh V. State of UP AIR 1963, SC 1295, the court stated that personal
liberty was not only limited to bodily restraint or enforcement. Kharak Singh was
charged in dacoity case but was released since there was no evidence available
against him. However the Police monitored his movements and activities even at
night. The court laid down that an unauthorised intrusion into a person’s home and
disturbance caused to him thereby violated his right to personal liberty enshrined in
Article 21.

In Maneka Gandhi V. Union of India the court expressed ‘personal liberty’ under
Article 21 of the widest amptitude. Protection with regard to Article 19 also included
unlike in the case of Kharak Singh.

The Supreme Court’s role of explaining the constitutionality of preventive detention

has been enormous and positive. The use of preventive measures from being
victimised with unlawful use of preventive detention has been safeguarded
massively by Writ Habeas Corpus. Double Jeopardy too stands consistent from
Petitioner’s defence point.

Habeas Corpus – Article 32 and 226 empowers the Supreme Court and High Court
respectively to issue writs. Habeas Corpus which means “you may have the body”
is a writ issued calling upon person by whom another person is detained to bring the
Detenu before the Court and to let the court know by what authority he has been
detained. The writ of Habeas Corpus is a device, requiring examination of the
question of illegal detention. The writ has been described as “a great Constitutional
privilege of the Citizen” or the first security of civil liberty” [Deepak Baja V. State
of Maharashtra AIR 2009 SC: 628].

In Sunil Batra V Delhi Administration [AIR 1980 SC: 1579] a post card written
by the Detenu from jail was converted into a writ petition for Habeas Corpus. The
writ would lie if the power of detention has been exercised malafide or for collateral
or ulterior purpose – as it was laid down in Gopalan V. State of Madras. Similarly
if the detention is justified under the law, the writ would be refused.

In Secretary to Government & others V. Nabila & others, High Court quashed
the order of detention mainly on the ground that the detention was in remand in
connection with the solitary ground case when there was no material before the
detaining authority to show that either the Detenu himself or his relatives are taking
steps to file application for bail in solitary ground case. Held the impugned order of
the High Court quashing the order of detention on solitary ground case is erroneous
and liable to be set aside. The Detenu was taken into custody in Sept 2012 and the
order of detention was passed in Dec 2012. The same was quashed by high Court on
April 2013. After a long time already expired and period of detention expired in
April 2014 even if the impugned order passed by the High Court is set aside, the
Detenu cannot and shall not be taken into custody for serving the remaining period
of detention. Unless there still exist materials to the satisfaction of the detaining
authority.
Preventive Detention and Human Rights
Apart from the measures and safeguards relating to preventive detention, the
Citizens must follow the necessity of forbidding the crime in expanding further and
reasonably support preventive detention, but cases shows unlawful detention stating
mechanism for prevention of cognizable offence. Ahmed Noormohmed Bhatti V.
State of Gujarat AIR 2005, SC 2115 related to it.

The principle of Audi Alteram Partem which states that no one should be condemned
unheard. A person whose right or interests are disputed or controverted him must be
given a reasonable opportunity to defend – it reasonably defends the victims of
unlawful preventive detention.

On detention, instances of inhuman treatment of prisoners have led to revolution of

strict Human Rights Laws. It is an international concern lead under UDHR and in
India the National Human Rights Commission has laid down several measures and
directives. Some of the important among them which could prevent the prisoners
from inhuman treatment and restrict preventive detention in accordance to security
of the Nation includes:

Ø Detailed recording of facts leading to satisfaction of authority conveying the

grounds of detention to the Detenu. People should be sensitized about various
personal liberties.

Ø In case there is unlawful detention, need to have provision for interim

relief/compensation.

Ø All the states must formulate rules under the Juvenile Justice Act 2006 and
constitute necessary institutions as required under the law. Juvenile justice system
should be distinct from criminal justice system.

Ø Psychological help to prisoners.

Ø The NHRC has conducted a workshop on four thematic sessions covering

detention in prisons and police custody, preventive detention. It was presided by
former Attorney General of India Mr. Soli Sorabjee. It included participants like
DGPs, DG of Prisons, Nodal officers of Human Rights Commission and
representatives of selected NGOs.

Thus it may be derived that those who are reasonable for the national security or for
the maintenance of public order must be the sole judges of what the National
Security or Public order requires. It should be the responsibility of the detaining
authority to detain a person with a view to prevent him from acting in a manner
prejudicial to the maintenance of public order. It has always been the view of the
court that detention of the individuals without trial for whatever short period of time
is wholly inconsistent with the basic ideas of our Government and Judicial system.
Anti social activity can never furnish an adequate reason for invading the personal
liberty of the citizens except in strict accordance with and necessity to suffice legal
procedure requirements considering weightage of the crime and no injustice is done.