An Analysis of the Consequences of Non-adherence of Procedure of Arrest

An Analysis of the Consequences of Non-adherence of Procedure of Arrest | Overview

• A Preface to Arrest
• Procedure of Arrest
• Consequences of Non-adherence of Procedures
• Remedies in Case of Non-adherence of Procedure of Arrest

A Preface to Arrest

This essay gives an Analysis of the Consequences of Non-adherence of Procedure of Arrest. In the Indian society, our heartbeat still stops beating, lungs stop breathing and the body starts shivering when we hear the term ‘arrest’. An arrest is looked upon as ‘conviction’ or proof of a crime in large areas of the society even today.

But this article does not connote any of these views or beliefs or tries to criticise them but rather it endeavours to explain the legal meaning of ‘arrest’, the procedure that ought to be followed during arrest and more significantly, the consequences that may occur in case of non-adherence of the procedures of the arrest.

Procedure of Arrest

Whether an arrest is made without warrant or with warrant, it is necessary that in making such an arrest, “the police officer or any other authorized person arresting touches or confines the body of such person who is to be arrested, unless the person submits himself wilfully either by words or action”[4]. In Roshan Beevi v. Joint Secy., Government of Tamil Nadu[5], the Madras High Court held that ‘an oral declaration of arrest without actual contact or submission to custody will not amount to arrest’.

Section 41B of the Cr.P.C requires that every police officer affecting an arrest “shall bear an accurate, visible and clear identification of his name in order to facilitate easy identification”. Further, the police officer is required to “prepare a memorandum to record the arrest” and the memorandum must be signed by a family member or any independent person who is a respectable member of the society.

The arrestee, if the family members are not present at the time of arrest, must be informed of his right to inform one family member or friend about his arrest to ensure that bail or bond can be successfully availed of.

Besides the above provisions, the apex court has laid down detailed guidelines with respect to the procedure of arrest in two landmark and classic cases; Joginder Singh v. the State of U.P.[6] and D.K. Basu v. State of West Bengal[7]. Some of the momentous procedure to be followed are:

1. The police are required to make “entry in the police diary about the time and place of arrest and who has been informed of the arrest”.
2. The arrestee must be “subjected to medical examination” by trained doctors “every 48 hours” during his period of detention.
3. The arrestee may be “permitted to meet his lawyer” during interrogation.
4. All the district and State police control rooms must be informed of such arrest to ensure the easy location of the arrestee by his/her family.

The procedure of arrest enlisted above has been provided considering the fact that arrest is a practical violation of the right to liberty of a person under Articles 19 and 21 of the Constitution of India. Therefore, it is necessary that the power to arrest must be exercised with “reasonable care and caution” and not at the whims of the authority.

Consequences of Non-adherence of Procedures

Cr.P.C provides stringent procedural requirements for giving effect to an arrest. However, no provision is devoted to the consequences that will follow in case of non-adherence of these procedures; no law speaks about the liability of the police officers or the State in case of failure to follow the procedures or whether such arrest is legal or illegal. In such a situation, the pronouncements by the courts are the guiding light for this issue. The consequences of non-adherence of procedural requirements of arrest in a different legal context are as follows[8]:

1. Effect on Arrest: If a police officer blatantly violates all the procedure under the Code of Criminal Procedure while arresting a person, it shall become an illegal arrest. On the other hand, if certain provisions are not complied with while substantial provisions are complied with, it is an irregular arrest. In either situation, the arrest is not valid and the Magistrate must take not of the nature of illegality of arrest when the arrestee is first brought before him/her.
2. Effect on Trial: Trial is a stage where the investigation is complete and the police officers, having found sufficient evidence against the accused, have charged him with certain offences and the court determines the guilt or the innocence of the accused. A trial will not be void simply because provisions relating to arrest have not been fully complied with[9]. However, though the illegality or irregularity of arrest will not vitiate the trial of the accused, it will still be quite material if the charge against such person is of resistance to or escape from the lawful custody of the police. Since the custody is unlawful, the authenticity of the charge is shaken.
3. Effect on Jurisdiction of Court: It is possible that while in the unlawful exercise of his powers, a public servant may end up arresting a person in one part of the State while the charge sheet is filed in some other part of the State where the police station is located. The fact that the officer who effected the arrest went beyond his powers in making arrest does not affect the jurisdiction of the court to try the accused[10]. In Rishbud v. State of Delhi[11], the court observed that non-adherence of procedure of arrest is “merely a procedural irregularity which does not go deep to the root of the matter such as to oust the jurisdiction of the court”.
4. Liability of State: From a practical point of view, the relationship between the State and the police department is that of an employer and an employee or in a non-conventional legal language, a master-servant relation. According to the laws of vicarious liability, “the master shall be liable for the wrongful acts of the servant done during the course of his employment”. Now, the arrest is an official duty of a police officer done during his course of employment in the official uniform. Therefore, the State should be held liable in case of illegal arrest by a police officer. In Nagendra Rao v. State of Andhra Pradesh[12], the apex court ruled out the defence of sovereign immunity from government employees (laid down in Kasturi Lal[13]) and held that “the State can be held liable for wrongful acts of the police officers”.
5. Prosecution of the Offender: If a public servant having authority to arrest, knowingly exercises that authority in contravention of law and effects an illegal arrest, he can be prosecuted under Section 220 of the Indian Penal Code, 1860 for the same offence punishable with an incarceration period of 7 years. Besides this special provision, any person, including a police officer, can be prosecuted for “wrongful confinement” under Section 342 of the Penal Code.
6. Civil Action against the Offender: If an arrest is illegal and made against the provisions of the law, it amounts to the tort of ‘false imprisonment’. A tort is a civil wrong usually uncodified and developed by courts of the common law countries. According to the tort of false imprisonment, any person who restrains the free movement of any other person and confined such person without his/her knowledge or consent shall be liable for the tort of false imprisonment. Any defendant in such cases, if found guilty, must pay pecuniary damages to the plaintiff.
7. Right to Private Defence: Among several general exceptions to offences, the Indian Penal Code provides the right to defend oneself and one’s property as a general exception to the commission of an offence under IPC. According to this right, any person facing an imminent threat to his life, person or property or any other person’s life or property, can use proportional force to stop such threat or avoid it.

According to Section 99 of the Code, the right also extends against any act of a public servant which is not done in the colours of his office or in good faith. Therefore, if a person is subjected to illegal arrest or detention, such person has a right to defend himself against any force used in such arrest and also escape from the public servant if the arrest is illegal[14].

Remedies in Case of Non-adherence of Procedure of Arrest

The most popular common law maxim states ‘ubi jus ibi remedium’, i.e. for every wrong, there is a remedy. The law is of no use if there is a remedy for violation of right. A right without a remedy is like a car without fuel; only utility is to snob. For non-adherence of procedure of arrest, a victim can claim two forms of relief:

• Relief of Release from Confinement: Where it is found that a person is illegally arrested, the High Courts or the Supreme Court can issue a “writ in the nature of habeas corpus” ordering the release of such person. In Sebastian M. Hongray v. Union of India & Ors.[15], the Supreme Court issued a writ of habeas corpus directing the respondents to release two named persons and if not, show cause as to why they cannot be produced before the court.

Similarly, in Smt. Harbans Kaur v. Union of India[16], the petitioner is a mother of four sons, all of whom were arrested by police officers without providing any reasons and informing her of the place of their detention. In the custody, one son Gurbaksh was beaten to death while others were illegally detained without presence before the magistrate. On the order of the court, the detenu was presented before the Judicial Magistrate and judicial custody was ordered. The SC observed that since one detenu has died and others have been lawfully detained in judicial custody habeas corpus cannot be issued. Nevertheless, the court ordered an enquiry by the DGP into the death and illegal detention of all the victims.

• Relief of Compensation: The relief of compensation for illegal arrest cannot begin without the landmark judgment of Nilabati Behera v. State Of Orissa[17]. The petitioner is the mother of the deceased who was arrested by the police officers and brutally beaten and later, his body was found near the railway track. The police claimed it to be an attempt to escape. However, the court was satisfied that the act was “done by the police officers” and thus, “a compensation of Rs. 1, 50,000 was awarded to the petitioner”. This was the first case where the court awarded pecuniary compensation for illegal arrest.

In Prabavathy v. The State of Tamil Nadu,[18] the petitioner filed the writ petition seeking for a direction to the respondents “to pay compensation of Rs.5 Lakhs to the petitioner for the illegal detention and death of her husband E.Nanjappan in the judicial custody”. Court held that the petitioners were supposed to pay 8 lakhs as compensation.

• Other Reliefs: The main relief which is usually sought is the release of the detenu and compensation. However, in certain cases, different reliefs have been sought and the courts have even accepted such reliefs. In P Rathinam v State of Gujarat & Ors.[19], the petitioner requested the court to formulate a committee to investigate the custodial rape of the petitioner after her illegal arrest. Further, in Sri Ramamurthy v. the State of Karnataka, the apex court directed the State government to amend their Police and Prison Manuals that give carte blanche powers to the public servant.

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[1] Bryan A. Garner, Black’s Law Dictionary 115 (10^th ed. 2014).

[2] P Ramanatha Aiyar, Concise Law Dictionary 87 (5^th ed. 2014).

[3] 1 D.D. Basu, Code of Criminal Procedure, 1973 183 (6^th ed. 2017).

[4] Code of Criminal Procedure, No. 2, Act of Parliament, §46, 1973 (India).

[5] Roshan Beevi v. Joint Secy., Government of Tamil Nadu, 1984 Cri. L.J. 134 (Mad).

[6] Joginder Singh v. the State of U.P., AIR 1994 SC 1349.

[7] D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.

[8] R.V. Kelkar, Lectures on Criminal Procedure 51 – 52 (6^th ed. 2017).

[9] K.D. Gaur, The Textbook on the Code of Criminal Procedure 67 (2016).

[10] C.K. Takwani, Criminal Procedure 51 (3^rd ed. 2011).

[11] Rishbud v. the State of Delhi, AIR 1955 SC 196.

[12] Nagendra Rao v. State of Andhra Pradesh, AIR 1994 SC 2663.

[13] Kasturilal v. the State of U.P., AIR 1965 SC 1039.

[14] M.P. Sharma v. Dist. Magistrate Delhi, AIR 1954 SC 300.

[15] Sebastian M. Hongray v. Union Of India & Ors., (1984) 1 SCC 339.

[16] Smt. Harbans Kaur v. Union Of India, (1995) 1 SCC 623.

[17] Nilabati Behera v. the State Of Orissa, (1993) 2 SCC 746.

[18] Prabavathy v. The State of Tamil Nadu, (2010) SCC Mad 3231.

[19] P Rathinam v State of Gujarat & Ors., 1994 SCC Crim 11630.

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1. Introduction to the Code of Criminal Procedure and Important Definitions(Opens in a new browser tab)
2. Difference between Illegal and Irregular Procedure