Yours Rights if
arrested
The Constitution of India guarantees the citizen's fundamental
rights to participate in the political life of the country and to express
themselves as political beings. But the freedom is hedged in by many legal
restrictions by the politicians. Even legitimate activities of citizens may be
considered as infringement of the law. The general ignorance of our legal rights
is being exploited by law enforcing agents of the State and consequently
violation of human rights is increasing day by day at an alarming proportion.
The objective of this note on Arrest and Bail is to raise the legal
consciousness of the citizens with regard to their rights when confronted by the
police and agents of the judiciary.
Arrest of a person
A person is
arrested when a police officer or a citizen takes him into custody or otherwise
substantially deprives him of his freedom of action so that he may be held to
answer for a crime or an offence. The police in
Warrant of Arrest
It is a written order issued by
a Court to a police officer to arrest and produce an offender or to search his
premises for a particular thing. A police officer who executes the warrant shall
notify the substance thereof to the person to be arrested and if he demands,
shall show him the warrant. He is expected to bring the required person before
the Court without unnecessary delay.
Valid Warrant
A warrant of
arrest should be (i) in writing (ii) signed by the presiding officer of the
Court and (iii) should bear the seal of the Court. It should also contain the
name of the accused, his address and indicate the offence with which he is
charged. If any of these factors is absent, the warrant is not in order and an
arrest made in execution of such a warrant is illegal. Warrants are of two
kinds:
i) Bailable
ii) Non-Bailable
A bailable warrant is a
Court's order which contains a direction that if the person arrested executes a
bail with sufficient sureties for his attendance before the Court, he may be
released from custody. In that case it shall further state the number of
sureties, the amount of the bond, and the time for attending the Court. (Section
71 Cr.P.C.)
In case of a non-bailable warrant the direction for bail will not
be endorsed on the warrant.
Arrest without
Warrant
A police officer has power to arrest a person without warrant if
he is suspected of having committed a cognizable offence. Normally in
non-cognizable offences a police officer cannot arrest a person without a
warrant from a Magistrate.
In the first Schedule of the Criminal Procedure
Code (Cr.P.C.) offences have been classified and enumerated as cognizable and
non-cognizable. The more serious offences such as murder, rape, robbery, theft,
waging war against the State etc. are cognizable.
When can a person be
arrested without a warrant?
A person can be arrested without a
warrant:
1. If he is concerned in a cognizable offence or if there is a
reasonable suspicion, complaint or information that he has committed a
cognizable offence;
2. If he possesses implements of house breaking;
3. If
he possess stolen property;
4. If he is proclaimed an offender;
5. It he
obstructs a police officer on duty'
6. If he escapes from a legal
custody;
7. It he is a deserter from the army, navy or airforce;
8. Where
he is out of India, if he commits an offence punishable under any extradition
law or under the Fugitive Offenders Act;
9. If he is released convict who
breaks the restrictions imposed by the Court on his movements;
10. If he is
suspected of preparing to commit a cognizable offence;
11. If he is habitual
criminal;
12. If he, after committing a non-cognizable offence in the
presence of a police officer, refuses to give the police his name and address or
has given him a false name and address;
13. If he is required by a police
officer of another police station who suspects that he has committed a
cognizable offence;
How is Arrest
made?
Arrest is complete when there is submission to custody by word or
action, and in such a case touching or confining of the body of the person
arrested is not necessary, but mere surrounding of a person by the police does
not amount to arrest. (Section 46).
What happens if you resist
arrest?
If you forcibly resist arrest, the police officer can use all means
necessary to effect the arrest. (Sec. 46). He can even cause your death provided
you are charged with an offence punishable with death or me imprisonment.
However, he is not justified in using force more than necessary to obtain the
arrest (Sec.46). Therefore, unnecessary restraints or causing physical
inconveniences tying of hands and feet are not permissible if there is no
necessity for doing so.
What are your rights
when you are arrested?
If you are arrested:
1. You must be informed of
the reasons for your arrest (Fundamental Rights : Article 22 and Sec.50
Cr.P.C.)
2. You have a right to see the warrant if you are arrested under
warrant (Sec.75 Cr.P.C.)
3. You have a right to consult a lawyer of your
choice. (Fundamental Rights: Article 22 of the Constitution);
4. You must be
produced before the nearest Magistrate within 24 hours (Fundamental Rights:
Article 22 of the Constitution);
5. You must be told whether you are entitled
to be released on bail. (Sec.50 Cr.P.C.)
Can you be
handcuffed?
According to the latest ruling of the Supreme Court,
normally an arrested person should not be handcuffed unless he is violent or he
is desperate character or he is likely to attempt to escape or to commit
suicide. Arrest is not a punishment. Hence unnecessary restraints are not
permissible, if there is no necessity for doing so.
Search of a place
entered by a person sought to be arrested
Sec.47 of Cr.P.C. compels all
persons to afford to the police facilities for search in a place for a person
sought to be arrested. Police officers have power to break open any door or
window to carry out a search and to liberate himself or any person who is
detained inside a premises.
Search of an arrested
person
A Police officer has the right to search a person only after he is
arrested. After the search the police officer must keep in safe custody all the
articles taken from the person and give him a receipt for the same.
A search
of an arrested female should be done with strict regard to decency. A woman can
be searched only by another women. (Sec.51)
Examination of
arrested person by medical practitioner
A police officer not below the
rank of a sub-Inspector may require an arrested person to be medically examined
if he feels that this may provide evidence to prove the offence. (Sec.53)
·
He may use reasonably necessary force to have the medical examination
performed;
· The accused person can make a request to the Magistrate that he
had not committed the offence. (Sec.54);
· A woman has a right to demand that
she be examined by a woman doctor. (Sec. 53 A(2), 54);
· In case of torture
in police custody, this provision of law must be taken advantage of and the
victim should demand in the Court that he be medically examined to prove torture
by the police.
Detention of an
arrested person
Article 22 (2) of the Constitution lays down that every
person who is arrested and detained in custody should be produced before the
nearest Magistrate within a period of 24 hours of such arrest exclusive of the
time necessary for the journey from the place of arrest to the Magistrate's
Court. However, Sec.167 of the Cr.P.C. vests the power in the Magistrate to
authorize the detention of the arrested person for more than 24 hours of the
investigation cannot be completed within that period. In no circumstances can
the accused be detained in custody for a moment more than twenty four hours
without a special order of a Magistrate who can order his detention for a term
exceeding 15 days on the whole. At the end of the 15 days he must be produced
before the Magistrate. If there are adequate grounds for further detention in
judicial custody (jail), he can pass an order to that effect, for a period not
exceeding 15 days. But the total period of detention cannot exceed 60 days,
whether the investigation of offence against him has been completed or not. The
order of a Magistrate sanctioning the detention for an indefinite period is
illegal. If the accused is not able to furnish bail during the stage of
investigation he may be detained in judicial custody beyond 60 days. In case of
a non-bailable offence the arrested person may be kept in jail until the trial
is over.
Search
Warrant
Search warrant is issued by the Magistrate for the following
purposes:
· For the recovery of a document or thing which may not be produced
in the court otherwise;
· For search of a house suspected to contain stolen
property, forged documents, etc;
· Seizing any publication banned by the
government;
· For discovery of a person wrongfully
confined.
A search warrant gives the
power to the police officer to search the required place and to seize the
objectionable article known as "Mudammal". Police may use force to effect a
legal entry provided that they have come, demanded entry and are unreasonably
refused.
The police officer executing the warrant may search any person in or
about such place if that person is reasonably suspected of concealing on his
person any article for which search is made. If the person to be searched is a
female, then the search shall be made by another woman with the strictest
possible decency.
Procedure to be
followed
The officer making a search shall:
· Call upon two or more
respectable residents of the locality (called Panches) to attend and witness the
search. Failure to attend is an offence under Sec.187 I.P.C.
· Make the
search in their presence. So, the search would be illegal if the panches: are
kept outside while the search takes place inside the building;
· Make a list
of all things seized and of all places in which they are found. (The list is
called the panchanama);
· Get the list signed by the witnesses - Panchas
·
Permit the occupant of the place to attend the search and give him a copy of the
list of things signed at his request;
· Panches are not required to attend
the court as witnesses unless specially summoneded by the
Court.
Rights of the
occupants of the premises searched
· The accused himself cannot be
compelled to produce any document or property which is likely to involve him in
any criminal charge. Hence police have to get a warrant issued by a Court of
Law;
· The police have no general power to enter or search your premises
without your consent;
· The court may specify in the warrant a particular
place only to which the search will extend;
· It is important that the
warrant is read and the directions are taken note of before the police are
allowed to make inspection;
· If the police have no legal authority to enter
your premises you can refuse the entry;
· If they have no legal authority to
remain, you have a right to insist that they leave;
· If they refuse you have
the legal right to use reasonable force to remove them. (Sec.97, of
I.P.C.)
Bail
Bail
means releasing an arrested person from legal custody until his trial. Bail
gives the freedom to seek advice from friends to consult a lawyer, to trace
witnesses and to collect evidence for one's defence and to continue his
job.
When bail is not granted, the arrested person will be on remand and will
be kept in custody to facilitate the investigation and to obtain
evidence.
Provisions regarding bail can be classified into 2 categories:
i.e., (1) Bailable cases; and (2) Non-Bailable Cases.
Bailable
Cases
In the case of bailable offences, granting of bail is a matter of
legal right. This means that bail cannot be refused and shall be granted by a
police officer in charge of a police station having the accused in his custody.
The release may be ordered on the accused executing a bond, even without
sureties.
Non-Bailable
Cases
In non-bailable cases, only the Court can order release of the
accused person on bail. However, if the police officer or the Magistrate is of
the opinion that there is no sufficient material against the accused and that
the complaint needs further investigation he may also release the accused on
bail.(Sec.437 (2) Cr.P.C.)
Normally bail is not granted when the accused
person appears, on reasonably grounds, to be guilty of an offence punishable
with death or imprisonment for file. But women, children under 16, and sick
people can be released on bail by a Magistrate even if charged with offences
punishable with death or life-imprisonment.
An accused person is entitled to
be released on bail as soon as reasonable grounds for guilt cease to appear,
between the close of the case and the delivery of judgement. A person released
on bail may be taken into custody by an order of the Court, if his conduct
subsequent to release is found to be prejudicial to a fair trial Sec.48 Cr.P.C.
or if he does not observe the conditions of the bail.
Power of the Court to
grant bail
The discretionary power of the Court to grant bail is judicial
power and is given by established principles. Before granting bail the Court
must consider the seriousness of the charge, the nature of the evidence, the
severity of the punishment prescribed for the offences and in some cases the
character, means and the status of the accused.
If you are arrested,
how to get released immediately from police custody?
In warrant cases,
find out the directions endorsed in the warrant and execute a bond with sureties
(Sec.71):
· If the offence charges is bailable and the arrest is made without
warrant, ask the police officer in charge of the police station to grant you
bail after executing a bond.
· The police officer has the discretion to
release a person on his executing a bond without sureties. (Sec. 436 of
Cr.P.C.)
· If you are not granted bail immediately you have the right to
telephone your advocate, a friend or a relative. Give your advocate the names
and addressed of the possible sureties. If you don't have an advocate inform
your friend or relative:
· The name of the Court where you will appear;
·
The time the Court starts;
and request him:
· To take to the Court
anyone else who is prepared to stand surety;
· To contact an advocate if
possible.
If you can deal with these matters before you go to the Court, you
may be saved an unnecessary remand in custody.
Granting of Bail by
the Magistrate
If a person is arrested for a non-bailable offence, and
there exists a reasonable ground to believe the guilt of the person, he may not
be granted bail by the police officer. In such cases the accused person must
give a written application to the court to grant bail. The court must grant bail
unless he is charged with a crime punishable with death or life-imprisonment. In
such cases only the sessions or the High Court can grant bail.
Common police
objections to bail
· The accused will not appear at his trial;
· He
will interfere with witnesses or material evidence;
· He will commit further
offences while on bail;
· Police enquiries are not complete;
· Further
charges might follow;
· Stolen properties have not been recovered;
· The
co-accused are absconding;
· The weapons with which the crime was committed
has not been recovered.
Normally the police make an application for the remand of the accused. In such an application they give their reasons for further detention of the accused in custody. The reasons given by the police must be refuted to the extent possible.
Application for
Bail
· If the accused can afford an advocate he can make an application
and represent the accused before the judge;
· If the accused cannot afford an
advocate he may make a written application to the judge. For this he must get an
application form from the prison staff and complete it as fully as possible
giving sufficient reasons to convince the judge of the need of granting
bail.
The following special
grounds for release must be mentioned in the application:
· Condition and
state of accommodation; whether there is a possibility of eviction in case bail
is not granted;
· Whether he is likely to lose his job;
· How refusal of
bail would create hardship to the dependent members of the family;
· How
keeping in custody would affect the poor state of health and
treatment.
Refusal of Bail by
the Magistrate
If bail is refused, the Magistrate must record the reasons
for the same. Such a record is necessary to make a proper appeal for bail in
higher Courts.
Appeal
If
application for bail is rejected by the Magistrate, the accused person can
appeal to a Sessions Court or High Court.
Disagreement with the objections
raised by the police in granting bail or the fact of no objection raised in the
Court must be incorporated in the application for bail. If one's application is
rejected, one may try again in one's next Court appearance.
Conditions for
Bail
The Magistrate may grant a bail:
· Without any condition
·
Subject to special conditions;
· Subject to bond with or without
sureties.
Special conditions usually state that the accused person must
report to the police station at specified times or surrender his passport. One
can challenge in a Court any unreasonable condition imposed by the Magistrate.
If the Court refuses to change the conditions, the accused person can reject
them. But in that case he will not be released until his appeal is heard and
disposed of in his favour.
Bond and Sureties
· An
accused person may be released on personal bond with or without sureties;
·
Sureties are people who guarantee a sum of money for appearance of the accused
in the Court on the appointed day and time.
· Those who stand as sureties
must be present in the Court and if asked must guarantee the Court under oath
that they are prepared to act and have sufficient funds;
· They can file
affidavits before the Court stating the fact to show that they have sufficient
funds to pay the surety and that they are even otherwise fit to be
sureties;
· The Magistrate has the power to reject the surety without giving
any reason. If the sureties are not in the Court, the arrested person will be
kept in custody until the police have interviewed them and found them to be
satisfactory;
· Sureties must be over 18, have a permanent address and have
sufficient money to cover the amount of surety after payment of all their debts.
The sureties may carry to the Court documents such as ration cards, rent
receipts, provident fund slips, salary slips and income tax challans;
· The
police and the Magistrate have no right to reject sureties on ground of their
personal character, political opinions, criminal records or sex, unless they are
professional sureties.
Bail after
Conviction
If an accused person is found guilty, the Magistrate will pass
the sentence after considering his past record. If the convicted person wants to
appeal against his sentence in a higher court, the Court which passed the
sentence must release him on bail.
· When the sentence is for imprisonment
for a term net exceeding 3 years, or;
· When the offence for which the person
is convicted is a bailable one and the person is already on bail.
The release
will be for a period that will enable the convict to present the appeal and get
the orders of the appellate Court.
Once a person files an appeal against his
conviction, the appellate Court may suspend the sentence and release him on bail
or on personal bond.
Anticipatory
Bail
When a person has reason to believe that he may be arrested for a
non-bailable offence, he may apply to the High Court or to the Court of Session
for a direction that in the event of such an arrest he may be released on
bail.
If such a person is arrested without a warrant by a police officer and
if he is prepared to give bail, he must be released on bail. In case a warrant
is issued against the accused by a Magistrate, it. The purpose of the provision
is to relieve a person from disgrace by being detained in jail for some days
before he can apply for bail when he is implicated in a false case by a
rival.
Recent Observations
and Recommendations of the Supreme Court on Bail
· The Bail system
prevalent in our country is oppresive and discriminatory against the poor, since
the poor would not be able to furnish bail on account of their poverty. The
court, by ignoring the differential capacity of the rich and the poor to furnish
bail and treating them equally, produces inequality between the rich and the
poor.
· The bail system should be thoroughly reformed so that it should be
possible for the poor to obtain pre-trail release as easily as the rich without
jeopardising the interests of justice.
· The Court and the police must
abandon the antiquated practice of release only against bond with sureties, and
if the accused has ties in the community and there is no substantial risk of
non-appearance, he may be released on his personal bond without monetary
obligation, subject to penalty in case of breach.
· The amount of bond the
Court fixes to release the accused on personal bond should not be based merely
on the nature of the charge but on the financial capacity of the accused and the
probability of the absconding.
· When the accused is released on personal
bond, the Court or the police should not insist upon inquiring into his solvency
as a condition of acceptance of his personal bond.