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Summary
DISSERTATION
ENTITLED
DEPRIVATION OF LIBERTY IN CRIMINAL JUSTICE

SYSTEM: A COMPARATIVE STUDY
SUBMITTED TO: DR. RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
61
In Partial Fulfilment for the Award of Degree of
LL.M (CRIMINAL AND SECURITY LAW) 2020-21
Submitted By:
ANKUR KUMAR
Enrolment number: 200102025
Under the Guidance and Supervision of

DR. PREM KUMAR GAUTAM
Assistant professor
Dr. Ram Manohar Lohiya National Law University
Lucknow (India)
2021
CERTIFICATE
I certify that the dissertation entitled “Deprivation of Liberty in Criminal Justice System:
37
A Comparative Study” was carried out by Ankur Kumar for partial fulfilment for the
award of the degree of LL.M. in Criminal and Security Law.
This is the result of his endeavour under my supervision. He has worked very hard and
fulfilled the prescribed condition given in the regulations of Dr. Ram Manohar Lohiya
National Law University, Lucknow.
12
I, further certify that this dissertation, either partially or fully, has not been submitted to any
other University or institution for the award of any degree or diploma.
Dr. Prem Kumar Gautam

Assistant Professor
DEPARTMENT OF LAW
Dr. Ram Manohar Lohiya National Law University, Lucknow
DECLARATION
I, ANKUR KUMAR, student of LL.M. with specialization in Criminal and Security Law
hereby declare that the Dissertation entitled “Deprivation of Liberty in Criminal Justice
System: A Comparative Study” which is submitted by me under the guidance of Assistant
Prof. PREM KUMAR GAUTAM to Dr. Ram Manohar Lohiya National Law University,
21
Lucknow, in partial fulfilment of the requirements of the award of the Degree of LL.M. has
2
not been previously formed for the award of any Degree, Diploma, Associateship, Fellowship
or other similar title or recognition.
(ANKUR KUMAR)
56
ii
CERTIFICATE OF COMPLETION
This is to certify that ANKUR KUMAR, with Enrolment No. 200102025, has successfully
completed Dissertation in LL.M. titled “Deprivation of Liberty in Criminal Justice
System: A Comparative Study” under the guidance of Assistant Prof. Dr. PREM KUMAR
GAUTAM.
Signature of the Learner Name: ANKUR KUMAR
Enrolment Number: 200102025
Place: Lucknow
Date:
Signature of the Guide
Name: Dr. Prem Kumar Gautam
Date:
iii
ACKNOWLEDGEMENT
(For Submission of Dissertation)
This is to acknowledge that ANKUR KUMAR Enrolment No. 200102025 of _____ has
submitted the Dissertation at_________________
Date: Signature (with Seal)
iv
ACKNOWLEDGEMENT
10
I would like to express my gratitude to the Almighty God for blessing me with the
opportunity to be able to work on my dissertation even in times of difficulties. For giving me
16
strength and a sense of security to complete my work with ease. I would like to express my
heartfelt gratitude and sincere thanks to Asst. Prof. Dr. Prem Kumar Gautam my humble
supervisor who left no stone unturned in guiding me through this process and being there to
answer even my most minute queries with patience and helped me through every step of the
way. It was an honour to have worked under him and learned the value of precision and
honesty in doing my work. I will always be indebted for his nobility, his guidance and
47
support. I would also like to thank my friends and family who rigorously helped me in
whichever way possible.
(ANKUR KUMAR)
v
57
List of abbreviations
A.I.R- All India Reporters
All- Allahabad High Court
Art- Article
Bom - Bombay
CHRI- Commonwealth Human Right Initiative
CID – Criminal Investigation Department

8
CRBI – Crime Record Bureau of India
CrLJ- Criminal Law Journal
CrPC – Criminal Procedure Code
FIR- First Information Report
Govt. – Government
HRC – Human Right Committee
H RWC – Human Right Watch

8
ICCPR- International Covenant on Civil and Political Rights
ILR – Indian Law Review
IPC –Indian Penal Code
Ins. – Inserted
Ker - Kerala
Mad- Madras
MLA - Member of Legislative Assembly
MP – Member of Parliament
NHRC- National Human Right Commission
NGO- Non-Governmental Organization
vi
NPC – National Police Commission
33
S.C- Supreme Court
SCC- Supreme Court Cases
Sec – Section
UDHR – Universal Declaration of Human Rights
UNHRC – United Nations Human Right Commission
v. – Versus
U.S – United States
U.K – United Kingdom
vii
Cases
A. K Gopalan v. State of Madras AIR 1950 SC 27 ............................................................. 50

A.K. Gopalan vs The State of Madras 1950 AIR 27, 1950 SCR 88 ...................................... 15
Attorney-General v. Times Newspapers(1974) A.C. 273 ................................................... 113
Bhawoo Jivaji v Mulji Dayal, (I.L.R12 Bom.377). ............................................................ 108
Calder V. Bull, 1978 (3) Dallas 386 at 391. ......................................................................... 29
Carroll v. United States 267 U.S.132 (1925) ........................................................................ 82
52
Chimel v. California 395 U.S.752 (1969) ............................................................................ 74
Christian Community Welfare Council of India vs. Maharashtra State Government AIR 2004
SC 7 .............................................................................................................................. 111
32
Cupp v. murphy 412 U.S.292 (1973). .................................................................................. 75
D.K Basu v State of West Bengal (AIR 1997 SC 610) ......................................................... 88
D.K Basu v. State of West Bengal AIR 1997 SC 610 .......................................................... 16
Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and others
AIR 1991 SCC 2176 ...................................................................................................... 113
9
DK Basu v. West Bengal AIR 1997 SC 15. ......................................................................... 35
in Maneka Gandhi v. Union of India AIR 1978, SC 597 ..................................................... 50
in warden v. Hayden 387 U.S.294 (1967) ............................................................................ 75
International Covenant on Civil and Political Rights, 1966. ................................................. 22
J. K. Jute Mills v. State of U.P, AIR 1961 SC 1534 para 15. ................................................ 29
1 18
Jaccob Mathew v State of Punjab [(2005) 6 SCC 1] .......................................................... 114
Joginder Kumar v State of U.P (AIR1994 SC 1349). ......................................................... 117
Kharak Singh v. State of U.P. and Others AIR 1963 SC 1295 ............................................. 15
M. P. V. Sundararamier & Co. v. State of Andhra Pradesh AIR 1958 SC 468 ..................... 30
Maneka Gandhi v. Union of India and Another (1978) 1 SCC 248 ...................................... 16
Mopp v. Ohio 367 U.S. 643 (1961). .................................................................................... 83
Nardone v. United States 308 U.S. 338 (1939) .................................................................... 83
Nilabati Behra v. State of Orissa AIR 1993 SC 1960,1995 SCC Supl.(2) 572. ..................... 34
Prabhu Dayal Deorah v. The District Magistrate, Kamrup AIR 1974 SC 183 ...................... 87
PUCL v Union of India 1995 SCC Supl. (2) 572 ................................................................. 34
viii
R v. Barrell (1980) Crim.L.R.641. ....................................................................................... 66
66
R. v. Houghton and Franchiosy(1978) 68 Cr.App.R. 197..................................................... 69
R. v. Lemsatef (1977) All.E.R. 835 ..................................................................................... 68
Re. Sharmann and Apps, (1981) 2 All.E.R.612.................................................................... 68
Rubinder Singh V. Union of India, AIR 1983 SC 65. .......................................................... 28
5
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.................... 112
32
Shadwick V. city of TAMPA 407 U.S.345 (1972) ............................................................... 84
13
Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors ....................................... 15
44
Silver Throne timber co. v. United States 251 U.S. 385 (1920) ............................................ 83
42
State of Haryana v Dinesh Kumar (AIR 2008 SC 1083 ....................................................... 25
73
State of Punjab v. Ajaib Singh ............................................................................................. 25
39
Tarapada de v State of West Bengal AIR 1951 SC 174........................................................ 91
7
The Protection of Human Rights (Amendment) Act, 1993 ................................................... 23
11
Union of India v. Madan Gopal AIR 1954 SC 158. ............................................................. 29
weeks v. United States 232 U.S. 383 (1914) ........................................................................ 83
Statutes
Article 20(3), Right against Self Incrimination under Constitution of India, 1950 ................ 24
Human Rights Act, 1993 ..................................................................................................... 23
29
International Covenant on Civil and Political Rights ........................................................... 11
Juvenile Justice Act, 2000 ................................................................................................. 111
68
Protection of Human Rights Act,1993 ................................................................................. 23
ST/SC Prevention of Atrocities Act, 1989 ......................................................................... 112
74
The Betting, Gaming and Lotteries Act 1963....................................................................... 60
45
The Children and Young Persons Act,1933 ......................................................................... 59
The Criminal Justice Act 1967 ............................................................................................ 62
67
The Metropolitan Police Act 1839 ....................................................................................... 60
The Police and Evidence Act,1872 ...................................................................................... 57
75
The Sexual Offences Act 1956) ........................................................................................... 58
Other Authorities
24
Law Commission, 177th Report on Law Relating to Arrest (December, 2001). ................... 23
Report of the Working Group Committee of United Nation on Arbitrary Deprivation of
liberty ............................................................................................................................. 14
The report of CHRI .......................................................................................................... 14
ix
Contents
DISSERTATION ..................................................................................................................................................I
CHAPTER 1 .......................................................................................................................................................1
INTRODUCTION ...........................................................................................................................................1
PERSONAL LIBERTY AS A CONCEPT ..................................................................................................................3
Personal Liberty in Indian Reflection ........................................................................................................ 3
Colonial Experience: The Freedom Struggle and the Desire for Personal Liberty ........................................ 4
Personal Liberty and The Constituent Assembly — The Framing of Article 21 ............................................ 5
DEPRIVATION OF LIBERTY .............................................................................................................................. 10
Constitutional And Statutory Provisions Related to Deprivation of Liberty in Indian Legal System ........... 11
HYPOTHESIS .......................................................................................................................................... 13
Literature Review .................................................................................................................................. 13
STATEMENT OF PROBLEM ..................................................................................................................... 17
AIMS AND OBJECTIVES OF RESEARCH .................................................................................................... 18
RESEARCH QUESTIONS .......................................................................................................................... 18
RESEARCH METHODOLOGY ................................................................................................................... 19
CHAPTERIZATION .................................................................................................................................. 19
CHAPTER 2 ..................................................................................................................................................... 20
1
LAW ON ARREST AND DETENTION UNDER INDIAN STATUTE AND INTERNATIONAL STANDARDS .................. 20
25
United Nations Human Rights Committee: Procedure for lawful arrest and detention............................. 21
INDIA’S INTERNATIONAL CONTRACTUAL RESPONSIBILITY REGARDING UNLAWFUL DEPRIVATION OF LIBERTY
...................................................................................................................................................................... 22
16
UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948. ........................................................................................... 22
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR), 1966. ............................................................ 23
Protection Guaranteed by ICCPR ............................................................................................................ 24
1
DEPRIVATION OF LIBERTY UNDER INDIAN CONSTITUTION AND THE CRIMINAL PROCEEDURE CODE ............. 25
INTERNATIONAL STANDARDS VIZ-A-VIZ THE INDIAN CONSTITUTION ............................................................ 33
69
DEPRIVATION OF LIBERTY UNDER INDIAN CONSTITUTION AND THE CRIMINAL PROCEDURE CODE,1973 ............................... 36
41
Right to Know the Reasons for Arrest ..................................................................................................... 36
Right to Get Legal Assistance ................................................................................................................. 37
To provide Legal aid .............................................................................................................................. 38
19
Right to be Produced Before Magistrate within 24 Hrs ........................................................................... 39
ARREST IN CRPC......................................................................................................................................... 41
77
ARREST WITHOUT WARRANT ............................................................................................................................ 41
Arrest by police officer ........................................................................................................................... 41
20
ARREST ON REFUSAL OF NAME AND ADDRESS ....................................................................................... 44
Arrest by a private person...................................................................................................................... 44
Arrest by a magistrate ........................................................................................................................... 45
10
PROCEEDURE FOR LAWFULLY DEPRIVING THE LIBERTY OF AN INDIVIDUAL — ........................................ 45
JUDICIAL INTERVENTION IN CASE OF ARBITARY ARREST TO BEST SERVE THE INTERNATIONAL STANDARD 50
x
CHAPTER 3................................................................................................................................................. 57
DEPRIVATION OF LIBERTY OF PERSON IN UNITED KINGDOM ..................................................................... 57
1.warrantless arrest .............................................................................................................................. 58
Arrest by private citizen ......................................................................................................................... 61
ARREST BY POLICE CONSTABLES ............................................................................................................ 61
ARREST WITH WARRANT ........................................................................................................................... 62
REQUIREMENT RELATING TO ARREST TO SAFEGUARD LIBERTY OF PERSONS ................................................................... 64
USE OF FORCE ....................................................................................................................................... 65
OBJECT OF ARREST ................................................................................................................................ 67
Extent of powers of police to detain a person ......................................................................................... 67
LEGAL SYSTEM IN US...................................................................................................................................... 71
United States constitution on deprivation of liberty ................................................................................ 71
INTERNATIONAL OBLIGATION ON USA ON DEPRIVATION OF LIBERTY .......................................................................... 73
ARREST WITHOUT WARRANT ................................................................................................................ 73
Arrest by private citizen ......................................................................................................................... 78
17
Right to be Informed the Grounds of Arrest ............................................................................................ 80
Right to Get Legal Assistance ................................................................................................................. 80
Legal aid ............................................................................................................................................... 80
35
Right to be produced before the magistrate in 72 hours ......................................................................... 80
Right to medical personnel .................................................................................................................... 80
JUDICIAL DECISIONS .............................................................................................................................. 81
The exclusionary rule ............................................................................................................................. 81
CHAPTER 4 ..................................................................................................................................................... 84
JUDICIAL DECISIONS REGARDING DEPRIVATION OF LIBERTY IN INDIA ........................................................... 84
9
ON THE ISSUE OF RIGHT TO LIBERTY FOR THE LAW OF ARREST ................................................................... 85
21
SAFEGUARDS FROM ARBITRARY DEPRIVATION OF LIBERTY (ARTICLE 21 AND ARTICLE 22 AND DUE PROCESS
.................................................................................................................................................................. 88
5
Rights to be informed the Grounds of Arrest .......................................................................................... 89
Right to Consult a Lawyer ...................................................................................................................... 91
Right to Get Legal Aid ............................................................................................................................ 92
Due Process - No Handcuffing ................................................................................................................ 96
Due Process – Compensation ................................................................................................................. 98
Confession to a Police Officer............................................................................................................... 105
Good faith ........................................................................................................................................... 107
Arrest of Vulnerable Person ................................................................................................................. 109
ARREST UNDER PROTECTED LEGISLATION............................................................................................ 111
ARREST OF PUBLIC SERVANT ............................................................................................................... 111
JUDICIAL OFFICER ................................................................................................................................ 112
ARREST OF MEMBERS OF PARLIAMENT AND IN CBI CASES ................................................................... 112
Others: As take example of doctors...................................................................................................... 113
CHAPTER 5 ................................................................................................................................................... 114
CONCLUSIONS AND SUGGESTIONS .............................................................................................................. 114
BIBILOGRAPHY............................................................................................................................................. 118
BOOKS ................................................................................................................................................ 118
REPORTS ............................................................................................................................................. 118
INTERNET SOURCES (DOCUMENTS) ..................................................................................................... 119
xi
Chapter 1
INTRODUCTION
23
Liberty is derived from the Latin root word "liber," which means "freedom." It is not just the
lack of limitations, but also the absence of limits. Different philosophers and political
scientists have seen Liberty differently when it comes to law. A layman would think of
liberty as the ability to do anything one desires.
Liberty, according to J.S Mill, an individualist, is immune to any restrictions in the "self-
regarding" realm of human action. It was a highly egotistical and unrealistic view of liberty.
While collectivists and idealists believed that liberty is found in obeying the laws of the state.
T.H. Green defines it as the ability to perform or appreciate something worthwhile in the
company of others.
Some people believe that liberty means having the freedom to do anything they choose. They
also believe that law is what limits one's ability to exercise liberty. They don't contradict one
other; rather, they complement one another. True liberty is only possible because of
established law, and the only established law that exists is the one and only Lawgiver's law.
Individuals' freedom and liberty are guaranteed by the law, not the other way around.
The Indian Constitution provides to its citizen Liberty through Article 21, and a varied types
of freedoms including speech and expression, movement, assembly, profession etc. via
38
Article 19. The constitution of the United States of America in a series of Amendments
provided to its citizens freedom of press, speech, association, assemble etc.
64
Life and liberty are precious freedoms guaranteed by Article 21 of our Constitution, but they
60
have been hindered by police abuse of the already extensive powers granted to them by the
Code of Criminal Procedure (CrPC) adopted by Parliament in 1973.The government's
frequent abuse of personal liberty and constitutional rights through its own retained powers
for the ostensible “protection of the public" has been a much debated and contested subject.
The police force, which has been charged as the keepers of our peace and protectors against
evil, has been accused of such abuse in the media and in court records.
3
The Indian Constitution establishes a framework within which the state must offer protections
3
against any potential infringement on the right to liberty. The incredible scientific and
technical progress of the contemporary age is believed to have had a significant influence on
altering the rigours of antiquated and inhumane arrest and imprisonment procedures.
As a result, most constitutional democracies and monarchies guarantee freedoms and rights in
their constitutions. The judiciary is the guardian of these constitutions, enforcing the law to
safeguard the people's freedoms. This liberty is a mix of positive and negative liberty; it
allows individuals to develop and realise their full potential while also protecting them from
outside influences.
3
In this light, the researcher has conducted an analytical and impartial investigation of the
78 3
concept of "deprivation of liberty" as defined by the Indian Constitution, as well as the
interpretation of the law through judicial dicta.
12
The Commission made the following observation on page 31 of its Third Report on the
8
quality of police arrests in India, the National Police Commission identified the power of
13
arrest as one of the primary sources of police corruption. According to the study, over 60% of
arrests were either unnecessary or unjustified, and unjustified police action accounted for
43.2 percent of prison expenditures.
“It is evident that the majority of the arrests were made in connection with minor cases and so
cannot be considered absolutely required in terms of crime prevention. Detention in 'ail of the
people so detained has also resulted in unnecessary spending on their upkeep. During the
preceding decade, it was projected that 43.2 percent of the expenditure in the associated jails
was spent on just those inmates who, in the end, did not need to be arrested at all."
1
Moreover, Depriving liberty to an individual is undoubtedly a serious interference with
1
fundamental right of the citizen, which gives an arrestee or an accused, guaranteed protection
under Articles 21 and 22 of the Constitution of India and specifically lay down that liberty
1 1
has to be restricted strictly in accordance with the law. The purpose behind depriving a
person from 5 liberty under the Criminal Justice System is either to prevent the person from
committing a criminal offence and to ensure the presence of the accused at trial. Arrest is a
discretionary power of the State; hence it should be exercised with due care and cautious.
2
PERSONAL LIBERTY AS A CONCEPT
Personal Liberty in Indian Reflection
In ancient India the liberty was an essential concept, which included the innate
synchronization of spirit, body and mind. 1 Individual honour and independence, as well as
liberty in its broadest meaning, were highly prized in our old political system. 2
Individual liberty was described as the ability to achieve the Purusharthas 3 without being
2
bound by physical or social constraints - the legitimate goals or objectives of life And the
2
most essential responsibility placed on the king by Dharma, the Supreme Law, was to
safeguard liberty in its broadest meaning.
Dharma was regarded to be a more potent sovereign than the ruler, and it was believed to be
binding on both the ruled and the ruling. 4
In Indian political philosophy, the ruler was simply the Dharma's 5 custodian, executor, and
servant.
1
Sri Aurobindo, The Foundations gg Indian Culture, Pondicherry, (1968), p.2.
2
The four values which are recognised as the Purusharthas or legitimate goals of life in Hindu Philosophy are
Artha, Kama, Dharma and Moksha. For a detailed analysis of the Purusharthas see S. Gopalan, Hindu Social
Philosophy, Wiley Eastern Limited, Delhi, 1979.
3
Shantiparva of Mahabharata, Manusmriti and Sukranitisara all refer to this aspect. See P.V. Kane, History of
Dharmasastra, Vo1.III, 2nd edn. pp.2-3.
4
See Sri. Aurobindo, op.cit, p.347, see also The Majesty of Law as described in Brhadaranyaka Upanishad, 1.
4-14, as quoted
2
by justice Gajendragadkar in his essay, "The Historical Background and Theoretic Basis of
Hindu Law" in The Cultural Heritage 9; India, Vol.II (1962), c” p.414.
5
Ibid.
3
2
The Coronation Oath6, which enunciates not only the king's obligation to the people but also
2
his life's commitment to the affairs of the Nation, demonstrates the king's (sovereign power)
surrender to the supremacy of the sacred law.
The king was obliged to swear an oath promising to safeguard the moral, spiritual, and
2
material well-being of those committed to his care.7 In addition, of all the dharmas,
Rajadharma appears to have received the highest priority in sacred writings.
Raja dharma is believed to be the "root of the true essence of all dharmas" because, according
to Hindu philosophy, rulers' performance of their duties and obligations was critical to
2
society's stability and orderly growth, as well as the happiness of individuals in the State. 8
The first and greatest of the Rajadharmas (kingly responsibilities) appears to have been
'paripalana' — the protection of the subjects. Individual protection is described as the ultimate
dharma of the king by both Shantiparva and Manusmriti.
The king also had a responsibility to establish conditions in which people may freely seek the
'Purusharthas,' and thereby attain the true state of liberty. 9
2
Colonial Experience: The Freedom Struggle and the Desire for Personal Liberty
2
Since this essence of democracy and the Rule of Law, as well as an instinctive desire to
recognise, safeguard, and sustain the dignity and complete worth of respect for human life,
2
are integral and not alien to Indian history and culture, it must be admitted that the notion of
fundamental rights in the sense of personal and civil liberties, with their contemporary
attributes and connotations, is development more or less from the time of British
administration in India10, constitutional governance and parliamentary institutions. It is a
2
6
For a detailed analysis of Coronation Oath, see K.P.Jayaswal, Hindu Polity, (1955), p.216.
2
7
Bhagwan Das, ibid.; also see Gajendragadkar, op.cit., p.422.
2
8
P.V.Kane, History of Dharmasastra, Vol.III, 2nd edn., (1973), p.3. Santiparva (63.25) in the Mahabharata
states: ‘know that all dharmas are merged in rajadharma; that rajadharmas are at the head of all dharmas’.
2
9
K.M.Panikkar, op.cit., p.23, See Barhaspatya - Sutra (II.43); Sukranitisara (IV-4.39); P.V.Kane, op.cit., p.240.
10
2
Subhash (3. Kashyap, Human Rights and Parliament (1978), p.20.
4
reality that at each stage of a people's evolution, certain standards of living determine the
conditions under which men are ready to interact, live alongside, and suffer a particular order.
Members of society will go about their business in peace as long as these parameters are
2
satisfied; but, if these standards are not maintained and people's fundamental practices of
living and acting are disrupted, they revolt and demand their fundamental rights.
2
The interplay of human nature with the norms and expectations of society, which may be
referred to as its culture11, determines what those fundamental rights 12 are. That is why, in
recent years, basic rights have been linked not only to natural law but also to humanity's long
fight throughout history.13
2
The origins of India's constitutional right to personal liberty may thus be linked not just to its
cultural principles, but also to its national movements and independence war against British
rule. As a result, it is necessary to quickly review the historical events leading up to the
Constituent Assembly's start of constitution-making.
2
Personal Liberty and The Constituent Assembly — The Framing of Article 21
As envisaged in the Cabinet Mission Plan, 14 the Constituent Assembly on January 24, 1947,
elected an Advisory Committee for reporting on minorities, fundamental. rights and on the
ethnic and overlooked areas.15
11
John Dewey, Freedom and Culture (1954), p.15.
12
2
The philosophers and jurists in Europe who developed the concept of a natural law were as much concerned
with the supremacy of parliament against the arbitrariness of the executive as with the vindication of the rights
of man against parliament itself. See H. Lauterpacht, International Law Human Rights, London, (1950), p.135.
13
For a statement to this effect, see the Delhi Declaration adopted by the International Commission of Jurists in
1955, Journal of the International Commission 9: Jurists, Geneva, 61.11, No.1, p.17.
2
14
See, Paragraphs 19 and 20 of the Cabinet Mission Plan 1946.
15
C.A. Deb., Vol.1I pp.325—27.
5
The Advisory Committee then established a Subcommittee on Fundamental Rights 16 on
2
February 27, 1947. The Sub—Committee before framing the list of fundamental rights,
considered the various drafts submitted by its members. 17
2
Both K.M. Munshi and Dr. Ambedkar included the "due process" clause in their original list
of fundamental rights as a vital safeguard for life, liberty, and property.18
7
Munshi's draft provided:
"No person shall be deprived of his life, liberty or property without due process of law".
The draft's other sections, which effectively clarified the "due process" provision, promised
to every individual the right to be informed, within twenty-four hours of his deprivation of
liberty, by whom or on what grounds the conduct was being done. They also said that no one
7
would be exposed to exorbitant bail or arbitrary refusal of release, harsh or cruel punishment,
or denial of appropriate protections and due procedure while awaiting trial. 19
Munshi placed a high value on the ‘due process' provision since, in his opinion, it is based on
a fundamental principle, which was: “every citizen is entitled to fair treatment at the hand of
the Executive and the Legislature, and the Judiciary should have the power to see that it is
given”. This, he believes, is at the core of democracy. 20
In addition, Dr. Ambedkar's proposal also said that the state should not deprive anybody of
their life, liberty, or property without following "due process of law.". 21
The Subcommittee on Fundamental Rights debated the issue on March 25, 26, and 29, 1947,
and added two provisions, 11 and 29, in its draft Bill:
11. “No person shall be deprived of life, liberty or property without due process of law.
16
See, B. Shiva Rao, The Framing 9; Indian Constitution — A study, Bombay, (1968), p.175.
17
The most prominent of such drafts were that of B.N. Rau, Alladi Krishnaswami Ayyar, K.M.Munshi and of
Ambedkar See, B. Siva Rao, op.cit., p.176.
18
B.Shiva Rao, Framing of Indian Constitution: Select Documents, II, pp.67—114.
19
Munshi's draft, Articles V (1) (e) and \/ (4) and Article XII (3), Select Documents II, 4 (ii), pp.75, 79.
20
K.M. Munshi, Pilgrimage to Freedom, (1967), p.298.
21
Ambedkar's draft, Article II (1) (2), Select Documents II, 4 (ii) (d), p.86.
6
29. No person shall be subjected to prolonged detention preceding trial, to excessive bail, or
unreasonable refusal thereof, or to inhuman or cruel punishment.”22
The section in clause 29 about the entitlement to be notified of the authorities and grounds for
deprivation of liberty within twenty-four hours, as recommended by Munshi, was deleted due
to the ‘due process of law' in cl.11 23
B.N. Rau - whose influence was the single most important factor in the Constitution's 24
ultimate deletion of the "due process" clause. In his remarks on the draft Bill, he noted how a
substantive understanding of "due process" may conflict with social policy and result in a
blaze of litigation.25
G.B. Pant was the one who criticized the Advisory Committee's "due process" section the
hardest. He said that restricting the legislature's authority would result in chaos. He argued
that legislators should be able to adopt laws allowing the administration to detain people for
short periods of time and to acquire private property for public use without having to pay
market rates of compensation.26
The ‘due process' clause was supported by Dr. Ambedkar and K.M Munshi, according to
them there was no need to give the government green licence to imprison people with a
"facile provision"27, according to Dr. Ambedkar whereas Mr. Munshi responded to Mr. Pant
that no provision barring detention had been included in the section so that government
22
Minutes and Draft Report of the Sub—Committee, Annexure, Clauses 11 and 29. Select Documents II 4 (iii)
and (iv), PP 119-20, 122, 132, 139, 141. See B. Shiva Rao, Q study, op.cit., p.232.
23
B. Shiva Rao, ibid. 155. See. G. Austin, op.cit., p.102.
24
See. G. Austin, op.cit., p.102.
25
B. Shiva Rao, A study, pp.232—33.
26
See, ibid., at pp.233-34; also G. Austin op.cit., p.85.
27
G. Austin, ibid., at p.85.
7
activity would not be hampered. However, he said that "due process" prevented legislative
excess, and that there was no need to fear that judges would take the role of legislators. 28
B.N. Rau, the Constitutional Advisor, included this phrase in clause 16 of his Draft
Constitution, which was published in October 1947. However, he limited the meaning of the
term "liberty" by inserting the word "personal" before it. 29 His reasoning for the modification
was that the word "liberty" without the qualifier "personal" might be interpreted broadly
enough to embrace even contract freedom. 30 At its meeting on October 31, 1947, the Drafting
Committee likewise accepted this modification. 31
When B.N. Rau undertook his tour to the United States and other nations for discussions and
research concerning the creation of the Constitution, another strike was in the works. During
that visit, Rau met with Justice Frankfurter of the United States Supreme Court, who believed
that the judicial review power implicit in the 'Due process' clause was both undemocratic
(because only 21 judges could veto legislation enacted by the legislature) and burdensome to
the judiciary. This viewpoint was conveyed to the Drafting Committee by B.N. Rau, who
later recommended that the "due process" section be replaced with the wording "according to
the procedure established by law", which was adopted from Article 31 of the Japanese
Constitution.
The Constituent Assembly revisited the issue in January 1948, and on the 19th, the members
chose to exclude the phrase "due process," citing the apparently easy rationale that
"procedure established by law" was "more explicit" —- a devastating blow to personal liberty
in free India. The Drafting Committee rewrote the provision's language, which was then
inserted into Article 15 of the Draft Constitution:
"No person shall be deprived of his life or personal liberty except according to the procedure
established by law."32
28
Ibid.
29
Rau, Draft Constitution, C1.6. This change narrowed the scope and meaning of liberty considerably. See,
Alexendrowicz, Constitutional Developments in India, (1957), pp.11-13.
30
Select Documents III, 1(ii), p.199.
31
See, Draft Constitution, February 1948, f.n. to Article 15; also see Rau, Indian Constitution, (Ed) by B.Shiva
Rao, p.303.
32
Draft Constitution, February 1948, Article 15, see f.n. to the article. Select Documents, III 6, p.523.
8
From this brief history of the framing of Article 21, which makes the right to personal liberty
as a constitutional guarantee in India, one can legitimately draw certain inferences which may
have far-reaching consequences.
However, Assembly members fought tooth and nail, first for the preservation of ‘due process'
in Article 21, then for the restoration of the substance of ‘due process' in Article 22, they
appeared to have "wedged their faith on the behest of the legislature and the good character
of their representatives," and perhaps more likely on the wisdom of the judicial system and
the dynamics of judicial review. Let us now move to the Supreme Court of India, which the
Constitution acknowledges as the guardian and guarantor of individual liberty, as well as the
final authority to interpret the Constitution.
Because it was realised that putting fundamental rights at the mercy of Parliament would
cause them to lose their significance, it was decided that any law passed by the state that
takes away or infringes fundamental rights is void, and that any individual who is deprived of
his fundamental rights has the right to approach the Supreme Court explicitly to have his
rights enforced.33 The Supreme Court has judicial review authority, which allows it to issue
any relevant writ, order, or directive for the protection of basic rights 34 – a process that
includes interpretation of the constitution and, if necessary, the nullification of governmental
action, including legislation. As a result, the Constitution has designated the judicial system
as the stronghold of individual freedoms.
The function and significance of the Supreme Court, which was given with judicial review
authority by the Constituent Assembly, may be gleaned from Dr. Ambedkar's words:
"... If I was asked to name any particular article in this Constitution as the most important - an
article without which this Constitution would be a nullity - I could not refer to any other
article except this one (the present Art.32). It is the very soul of the Constitution and the very
heart of it and I am glad that the House realised its importance". 35
33
The Constitution of India, Art.32.
34
Ibid.
35
See. C.A.Deb., Vol.VII, p.953. Also, the First Chief Justice of India, Justice Kania, remarked on the occasion
of the inauguration of the Supreme Court thus: ". it (the Supreme Court) will play a great part in the building up
9
As it would be the ultimate authority on the interpretation of the Constitution, the Supreme
Court, as the apex of a unified judicial system, has emerged as a strong weapon for
preserving the supremacy of the Constitution and for harmonizing legal procedures across the
country.36
The internal strength and creativeness of an apex court with highest power to interpret a
constitution has been vividly brought to light by the United States' experience - an experience
that has been a great source of inspiration and guidelines for India, both during the making of
the Constitution and since.37
Deprivation Of Liberty
Liberty means being free to do the things you want to do and live where you want to live.
Deprivation of liberty means taking someone's freedom away. Article 5 of the European
Convention on Human Rights provides that everyone has the right to liberty and security of
person. Liberty and security of the person are taken as a "compound" concept - security of the
person has not been subject to separate interpretation by the Court. It also says that the
deprivation of liberty is subject only to lawful arrest or detention under certain other
circumstances, such as arrest on suspicion of a crime or imprisonment in fulfilment of a
sentence. No Statue has given a proper definition of arrest. However, the English law
provides that arrest consists of the ‘actual seizure or touching of a person’s body’ with an
intention to detain a person.
of the nation, and in stabilizing the roots of civilization ... and maintain the fundamental principles of justice
which are the emblem of God...." as quoted by KQM. Munshi, The Pilgrimage to Freedom, op.cit., p.319.
36
K.M. Munshi, ibid., at p.320. The Supreme Court was conceived as a great unifying force by many leading
members in the Constituent Assembly. K.M. Munshi held so because ‘the unconscious process of consolidation
which a uniformity of laws and interpretation involves makes the unifying unconcious and therefore more stable
‘. See, G. Austin, op.cit., p.184. To Dr. Ambedkar, ‘one single integrated Judiciary having jurisdiction and
providing remedies in all cases arising under the constitutional law’ was ‘essential to maintain the unity of the
country’ See C.A.Deb., Vol.VII, pp., 37.
37
The Report of the Advisory Committee on Fundamental Rights bears ample evidence to show the
Committee's reliance on the American example of justiciable fundamental rights. See, G. Austin, op. cit., p.169.
The examples of Judicial reliance on American authorities, in interpreting Indian Constitution, are innumerable.
To cite a few, see Kharak Singh V. State of U.P., A.I.R., 1963 S.C.l295; Satwant Singh v. A.P.O., A.I.R. 1967
S.C. 1836; Gobind V. M.P., A.I.R. 1975 SC 1378 etc.
10
In 1964, a Study conducted by the Human Rights Committee on the right of person free from
arbitrary arrest, detention and exile 38 defines the arrest and detention with a chain of terms
revolves with arrest and detention. They are as follows: Arrest can be defined as, “the act of
taking a person into custody under the authority of the law or by compulsion of another kind
and includes the period from the moment he is placed under restraint up to the time he is
brought before an authority competent to order his continued custody or to release him”.
Detention is defined as,” the act of confining a person to a certain place, whether or not in
continuation of arrest, and under restraints which prevent him from living with his family or
carrying out his normal occupational or social activities”. The term arbitrary under
International Law39 confirms that arbitrariness is not to be equated with something which is
against the law but must be interpreted more “broadly to include elements of
inappropriateness, injustice, lack of predictability and due process of law”. 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).
Constitutional And Statutory Provisions Related to Deprivation of Liberty in Indian

Legal System
The Indian Constitution guarantees to its citizen right to life and personal liberty against the
Arrest power of State and in the same time it provides the State to deprive a person from his
personal liberty, but it is within the scope of ‘procedure established by law’. However,
Article 21 of the Constitution provides the authority to State to arrest and detain a person, but
such detention is according to ‘procedure established by law’ and the maximum time limit up
to which such detention could continue without judicial sanction fixed by Article 22 as 24
hrs. It is important that the arrest have been made within the Constitutional parameters. Arrest
per se is constitutionally justifiable on the grounds, which reasonably justify detention and
38
United Nations Human Right Commission available at
http://www.ohchr.org/EN/ProfessionalInterest/Pages/DetentionOrImprisonment.aspx.(Visited on July 21, 2021)
39
The drafting history of Article 9 of the International Covenant on Civil and Political Rights has given this
proposition.
11
the restrictions, which it consequently imposes on Article19 of the Constitution i.e.,
guaranteed freedoms. Under the Criminal Procedure code power to arrest are given to Police
forces, to the Magistrate and to a limited extent to Private person and under other Statutes,
power to arrest invests in different officials like customs, railways, excise, etc. While dealing
with Article 22 of the Constitution, Article 21 is very important because arrest and detention
deprive a person from his personal liberty. Hence, Article 22 provides safeguards’ to the
person who is deprived of his liberty. This was a debatable issue in the Constituent Assembly
on the term ‘procedure established by law’ as this empowered the State to deprive a person of
his life and personal liberty. The term Liberty is a very crucial, in its absolute term the liberty
is the willingness and the power to do what has been willed, without being influenced from
any other source – from within or from without. Liberty in a political context signifies
guaranteed fundamental right enjoy without undue interference by masses or from
Government. Hence, to maintain law and order the State is endeavouring to control the
liberties of masses and promote public good.
Hence, Article 21 lays down that a person can be deprived of his liberty according to the
procedure established by law and Article 22 provides the safeguards in the situation when a
person is unlawfully or arbitrarily deprived from his personal liberty. Article 22(1), (2) and
(3) lays down the provisions related to the arrest and detention and to prevent the illegal
deprivation of liberty of a person. It provides the following safeguards to the arrested
person40 –
1. Right to be informed the grounds for such arrest “as soon as may be” i.e., reasonably
possible.
2. Right to consult and to be defended by a legal practitioner of his choice.
3. Right to be produced before the nearest Magistrate within twenty-four hours after
arrest excluding the time necessary for the journey from the place of arrest to the
Court of Magistrate;
4. Right not to be detained in custody beyond twenty-four hours without the authority of
a Magistrate.
These procedural safeguards were already existed before the Constitution under Criminal
Procedure Code, 1898; they were picked up from CrPC and incorporated in the Constitution
40
M.P.Jain, Indian Constitutional Law 98 (Kamal Law House, Calcutta, 8th ed., 2018.
12
under the clause of a fundamental right. It was thought by the drafters, that incorporating
these provisions under Constitution would put a limitation on Parliament and Legislative
Provinces not to infringe or abrogate this right. Hence, the Constituent Assembly added these
provisions in order to meet with criticism which evolved on the encroachment on life and
personal liberty under Article 15 of old code44 which is now Article 21 of the Constitution.
As Article 21 provides that personal liberty can be taken away by procedure established by
law, which was also very controversial issue either to put ‘due process’ or ‘procedure
established by law’ under Article 21. Hence, after long debate, the Constituent Assembly
concluded to incorporate ‘procedure established by law ‘in lieu of’ due processes and as a
compensation to the substance of law. Section 15, CrPC, 1889. Extract from Constituent
Assembly Debate, Vol. VII (September 15, 1949). 10 of ‘due process’ Article 22 was also
incorporated in Constitution as the then article 15 of old code.
HYPOTHESIS
 India has incorporated the safeguards of International Standards against arbitrary
deprivation of liberty in its legal system but still there is increasing number of cases.
Indian law is weak which results in India’s failing to comply with International
standards to protect the person from arbitrary arrest and detention.
 There is mismatch in the approach of Judiciary while dealing with the cases of
deprivation of liberty. As it is noticed that the judiciary while talking about
Constitution its approach is citizen centric giving priority to citizens right but when it
comes on interpreting Criminal Procedure Code then its approach turned to support
State in exercising their power to arrest or can say it takes State centric approach.
Literature Review
A literature review is highly important and is the foundation for developing tentative
assumptions, and it helps in developing clarity and relevance of criterion as well as predictor
variable from all possible angle, and ultimately in formulating hypotheses. During this
research, number of books, magazines, articles, reports and material available on websites are
consulted. Numbers of judgments have been gone through by consulting some law journals,
13
which have direct bearing and effect upon this topic. The relevant and material data and
information has been incorporated at the appropriate place and level.
International documents
 United declaration on human rights (UDHR)

 European Court of Human Rights (ECHR)
 International Covenant on Civil and Political Rights (ICCPR)
Reports
The Law Commission of India report 41 - insisted that police is abusing their authority and
consistently doing contempt of court for not following the decisions of Court. Hence argued
that more needs to be done for proper implementation of law in order to prevent the abuse
and misuse of the power of arrest and maintain peace and law in the society. Hence, provide a
list of recommendations to implement the law.
The Reports on Human Rights Practices India 42 - depict that Indian legal system is
suffering from grievous violation of rights of individual. There is increase number of cases of
arbitrary arrest and detention, and lengthy pre-trial detention. The judiciary remained
overburdened, and court backlogs led to lengthy delays or the denial of justice. The report
says that the Code of Criminal Procedure prohibits arbitrary arrest or detention, but police
continued to arrest citizens arbitrarily. Police detained individuals for custodial interrogation
without identifying themselves properly or providing arrest warrants. Police also used special
security laws to delay judicial reviews of arrests. Pre-trial detention was arbitrary, lengthy,
and sometimes exceeded the duration of the sentence given to those convicted.
Various reports of National Human Rights Commission NHRC, CHRI, UNHRC, NPC
Report of the Working Group Committee of United Nation on Arbitrary Deprivation of

liberty43 - remarked that the Indian Criminal Justice System is incapable to live up with the
41
Law Commission, 177th Report on Law Relating to Arrest (December, 2001)
42
5 United States Department of State, 2013 Country Reports on Human Rights Practices - India, 27 February
2014, available at: http://www.refworld.org/docid/53284acb14.html (Visited on July 22, 2021).
43
Working Group Committee, “Report on Arbitrary Detention, Compilation of Deliberations” available at
http:// www.ohchr.org /Documents/Issues/Detention/CompilationWGADDeliberation.pdf. (Visited on July 22,
2021).
14
international standards. There is huge number of incidences related to arbitrary and illegal
detention of person by police.
The report of CHRI44 - has analysed that the India’s model of policing is the cause of such
violation and the atrocities of police, the report finds that frequent violation of safeguards
given by international law, which is now incorporated in constitution and CrPC by police by
unlawfully depriving a person from his personal liberty.
Cases
 A.K. Gopalan vs The State of Madras 1950 AIR 27, 1950 SCR 88 - Deprivation of
personal liberty, which inter alia includes the right to eat or sleep when one likes or to
work or not to work as and when one pleases. Several such rights sought to be
protected by the expression "personal liberty" in article 21, is quite different from
restriction (which is only a partial control) of the right to move freely (which is
relatively a minor right of a citizen) as safeguarded by article 19 (1) (d). The
expressions "personal liberty" and" personal freedom" have, as found in several
books, a wider meaning and a narrower meaning. In the wider sense, they include not
only immunity from arrest and detention but also freedom of speech, freedom of
association, etc. In the narrower sense, they mean immunity from arrest and detention.
The juristic conception of "personal liberty," when these words are used in the sense
of immunity from arrest, is. That it consists in freedom of movement and locomotion.
 Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors - This case involves
issues of great public importance pertaining to the importance of individual's personal
liberty and the society's interest. The society has a vital interest in grant or refusal of
bail because every criminal offence is the offence against the State. The order
granting or refusing bail must reflect perfect balance between the conflicting interests,
namely, sanctity of individual liberty and the interest of the society. The law of bails
dovetails two conflicting interests namely, on the one hand, the requirements of
shielding the society from the hazards of those committing crimes and potentiality of
44
Devika Prasad, “A Rapid Study on Police Complaints Authorities in India”, CHRI (December 2012).
15
repeating the same crime while on bail. On the other hand, absolute adherence of the
fundamental principle of criminal jurisprudence regarding presumption of innocence
of an accused until he is found guilty and the sanctity of individual liberty.
 Kharak Singh v. State of U.P. and Others AIR 1963 SC 1295 - Subba Rao, J. defined
`personal liberty, as a right of an individual to be free from restrictions or
encroachment on his person whether these are directly imposed or indirectly brought
about by calculated measure. The court held that `personal liberty' in Article 21
includes all varieties of freedoms except those included in Article 19.
 Maneka Gandhi v. Union of India and Another (1978) 1 SCC 248 - the court
expanded the scope of the expression `personal liberty' as used in Article 21 of the
Constitution of India. The court rejected the argument that the expression `personal
liberty' must be so interpreted as to avoid overlapping between article 21 and 19(1). •
 D.K Basu v. State of West Bengal AIR 1997 SC 610.- the court gave various
guidelines to be followed by the police while arresting a person.
Articles
 Commentary Police Reforms: Need to Review Power to Arrest 45 - It argued that the
major reasons for abuse of authority and excesses power by the police is the enormous
power they wield over life and liberty. The power of arrest is the most important in
this category and deserves a closer look from the angle of reducing the scope for
several attendant malpractices. The author insisted on the implication of N.P.C
guidelines to prevent abuse of power to arrest and implement the law properly
The deprivation of liberty should be within Constitutional mandate as according to the

procedure established by law. Various authors like (J.N Pandey, D.D.Basu M.P Jain) etc. all
has given the importance of right to personal liberty and safeguards against arbitrary
deprivation of liberty. The Court are required to put a check on preserving the person’s right
and punishing the violator. Police is the main agencies, which guards the right of person and
prevent the unlawful activities, but over centuries, police could be seen as misusing power
45
S R SANKARAN, “Commentary Police Reforms: Need to Review Power to Arrest” 45 EPW (2010).
16
and no criminal proceeding has been done so far against police misconduct. It is now a
concern for the justice system to restore the confidence of public and punish the wrong doer.
In the backdrop of the above-examined literature, the endeavour hereunder would be to

address the case of deprivation of liberty should be under constitutional mandate and code of
criminal procedure, 1773. The literature creates a theoretical understanding that the law is
sufficient but the problem is with its implementation and the main cause of defective
implementation is police. There is abuse of power to arrest and the rights of arrested person
have been violating from ages. From referring various reports and articles, it is clear that
implementation of law of arrest are not living up to the standard of law. The above literature
says that though India has good law against the arbitrary deprivation of liberty with bad
implementation and it is the police responsible for poor implementation.
STATEMENT OF PROBLEM
“Power tends to corrupt and absolute power corrupt absolutely”
-by Lord Atkins
Present research problem relates to the tracing of the changes in the law of arrest under
Article 22(1) and (2) of Constitution of India and when these guaranteed rights are translated
into the criminal procedure code then it is witnessed that the law is not guaranteeing the same
thing where they are coming from. There is a mismatch between the constitution and criminal
procedure code as court is also taking a two distinctive approach while dealing with
constitution and criminal procedure code i.e., citizen centric approach and pro state approach
respectively. According to the report submitted by India to United Nations Human Right a
committee in the year 2012, the Government is worried that police is abusing the power.
Therefore, in this paper the researcher want study the Law of Arrest.
What are the international norms on Deprivation of Liberty?
17
What are the laws of arrest in various countries?
What is the problem of law of arrest?
Is there problem with the law or with the implementation or judiciary fails to give a uniform
approach to the arrest and detention law?
Do we need to change the law?
What is the approach of Judiciary while dealing with the cases of Illegal deprivation of
liberty?
AIMS AND OBJECTIVES OF RESEARCH
The field of Research is basically focus on Constitutional Safeguards and Statutory

Safeguards, cases of protection against arbitrary deprivation of liberty provided under Article
22(1) and (2) and CrPC under State power to arrest. The researcher has analysed two things,
one is whether India lives up with the International Standard, while other is to find out the
approach of judiciary in cases of arrest and detention while dealing under Constitution and
Criminal Procedure Code, for that various judgment has been studied in order to justify my
hypothesis.
RESEARCH QUESTIONS
1. What is the law on freedom of liberty? Is there any mismatch between the principles
of Constitution and Criminal Procedure Code on law related to deprivation of liberty?
2. What are the laws on deprivation of liberty in India, England and United states?
3. Is there a difference between the provisions in India and Belgium and United States?
4. What is the Judicial Pronouncement on law on freedom of liberty? What is the
approach of judiciary in interpreting the Constitution and CrPC?
5. What is the crux of judicial pronouncement on deprivation of liberty?
6. What is the approach of judiciary while interpreting Constitution and CrPC, is it takes
citizen centric approach while dealing with constitution and state centric approach
while interpreting the criminal procedure?
7. Why the Supreme Court is curving out exceptions in cases of deprivation of liberty?
8. What are some groups that is picking out. Is there a class bias?
18
RESEARCH METHODOLOGY
The proposed method of research in the thesis will be doctrinal in nature, which requires in
detail study of various textbooks and reported case laws to find out various fact-situation of
the subject and the researcher will judicially analyse the available data by studying the related
literature. Researcher will collect the materials from secondary sources such as Law Journals
and reports including All India Reporter, Supreme Court Cases and other journals, research
papers in this area.
CHAPTERIZATION
CHAPTER-1: Introduction This chapter deals with brief introduction, statement of the
problem, significance of the study, review of literature, hypothesis formulated, definition of
important terms, methodology, scope of the study and plan of study
. CHAPTER II: Deprivation of liberty in criminal justice system under Indian Statue and
International Standards and freedom of liberty in India. This chapter deals with Constitutional
mandate regarding deprivation of liberty is in consonance with international standards. A
comparative study on the laws of arrest of various legal systems. Has India failed to comply
with International Standard?
CHAPTER III – deprivation of liberty in criminal justice system in England and United
States. This chapter deals with the constitutional and statutory provisions with regards to
arrest and procedure and also the international standard.
CHAPTER IV - Judicial Approach towards the deprivation of liberty in India, United states
and England. Under this chapter the researcher has analysed the Judicial approach to the law
of arrest and tried to find out that the Court is talking in double standard way while dealing
19
with the cases of arrest and detention as when it talks about Constitutional principles of arrest
and detention.
CHAPTER-V: Conclusions and Suggestions. This chapter has incorporated concluding

remarks and few suggestions regarding the field of research
CHAPTER 2
LAW ON ARREST AND DETENTION UNDER INDIAN

STATUTE AND INTERNATIONAL STANDARDS
The Indian law related to deprivation of liberty is mostly in harmony with the international
standards. India has incorporated diverse provisions of international law in its local laws.
The researcher in this chapter will study the international standards on regulating and
safeguarding the right against arbitrary deprivation of liberty
The international instruments does not always provide a person freedom from deprivation of
liberty, sometimes it is essential for a state to exercise this power to maintain law and order,
according to the Working Group Committee, which is evaluating regional states' docility with
international law. 46 Nevertheless the right to liberty prohibits the state from unlawfully and
illegally deprive a person of his liberty but it’s also provides that this right can be violated but
only with the procedures that are provided for lawfully depriving the liberty. If any individual
has been deprived of liberty without the procedure established by law, then he can seek
judicial relief. 47 A person can file a petition of habeas corpus with the court to dispute their
46
Working Group Committee, “Report on Arbitrary Detention, Compilation of Deliberations” available at
http:// www.ohchr.org /Documents/Issues/Detention/CompilationWGADDeliberation.pdf. (Visited on June 13,
2021).
47
Ibid.
20
imprisonment.48 So the state must follow the procedure international and national law lays
down to detain and arrest a person.
United Nations Human Rights Committee: Procedure for lawful arrest and detention
The international law constrains the practice of arbitrary depriving liberty of an individual in
war and in peace. Taking away the person’s liberty is considered as the crime against
humanity. It is illegal and unjust to arrest and detain or arrest a person arbitrarily. The United
States Human Rights Commission administered that no member state can claim necessity as a
defence for making an arbitrary arrest.49
The country should not be allowed to claim that unauthorised and unjust arresting and
detaining people is a necessary step in protecting society's interests. The UN Human Rights
Committee ruled that the International Covenant on Civil and Political Rights (ICCPR) grants
a person a "non-derogable" right to contest the legality of an arbitrary deprivation of liberty
before a court.50 As a result, all UN Member States have declared this right to dispute legality
as "non-derogable" and have incorporated these two principles against arbitrary deprivation
of liberty into their domestic legislation.
As a result, the Committee determined that any detention without a legal ground is “against
recognised state practices”. In a case, the International Court of Justice ruled that paragraph 1
and 2 of Article 9, I.C.C.P.R apply in principle to any type of detention, “whatever its legal
justification and the goal being initiated,” and that the scope of these procedures is limited not
only to criminal proceedings but also to administrative proceedings. 51
48
Ibid.
49
Human Rights Committee, General Comment No 29 (2001) on Derogation During a State of Emergency, p.11.
50
Supra note, 56 p.48.
51
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J.
Reports 2010, p. 77. available at http://www.worldcourts.com/icj/eng/decisions/2010.11.30_ahmadou.htm
(Visited on April 23, 2021).
21
INDIA’S INTERNATIONAL CONTRACTUAL
RESPONSIBILITY REGARDING UNLAWFUL
DEPRIVATION OF LIBERTY
Universal Declaration of Human Rights, 1948.
India has ratified the Universal Declaration of Human Rights. The Universal Declaration of
Human Rights52 was created with the goal of establishing a common standard for all people
and promoting their rights and freedoms through progressive measures.
As a result, the laws under the UDHR guarantees all individuals a high-quality and equal
legal protection against any prejudice in violation of the declaration, as well as any
encouragement to discrimination. 53 It is already included in the constitution's article 14.
While Article 9 of the UDHR protects people from "arbitrary arrest," "detention," or "exile,"
all of which can be referred to as "arbitrary loss/deprivation of liberty." Despite the absence
of the term "exile" in Indian law, Articles 22(1) and (2) guarantee freedom from arbitrary
arrest and detention. The UDHR further states that everyone accused with a criminal offence
has the right to be considered innocent unless proven guilty by law in a public trial in which
he has been given all the protections he needs to defend himself. 54
Article 20(2) of the Indian Constitution likewise protects this right. To summarise, the Indian
Constitution contains all of the UDHR standards, proving that India conforms with all
international safeguards against arbitrary detention and imprisonment.
As a response, the Universal Declaration of Human Rights(1948) articles that provides

protection to an individual against arbitrary arrest and imprisonment are: -
 Article 3 illustrates that “everyone has the right to life, liberty and security of person’.
 Article 5 says, “no person shall be no one shall be threatened to torture or to a cruel in
human or degrading treatment or punishment.”
52
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at:
https://www.refworld.org/docid/3ae6b3712c.html [accessed 24 July 2021]
53
Article 7, Universal Declaration of Human Rights 1948.
54
Law Commission of India, 177th Report on Law Relating to Arrest, (December, 2001).
22
 Article 9 lays down, that “no one shall be subjected to arbitrary arrest, detention or
exile.”
International Covenant on Civil and Political Rights (ICCPR), 1966.
Human rights protection is a rising topic that requires significant consideration all across the
world. As a result, on April 10, 1979, India ratified the International Covenant on Civil and
Political Rights, and is currently a signatory to both the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social, and Cultural Rights.55
Individual Human Rights cannot be compromised at whatever cost, according to the

International Convention. 56 All Member States must exercise extraordinary vigilance when it
comes to the protection of human rights. As a result, all member countries must incorporate
the rights and safeguards provided in the Covenants into their national constitutions. As a
result, the Indian government has undertaken a number of changes to existing laws and
procedures in order to enshrine these safeguards in Indian law, and has eventually constituted
a new law, The Protection of Human Rights (Amendment) Act, 1993, to safeguard people's
rights.
The Act intends to create a National Human Rights Commission, State Human Rights
Commissions, and Human Rights Courts to address human rights breaches and provide
victims with quick restitution. 57 However, Section 2(d) of the Protection of Human Rights
Act,1993 defines the phrase "Human Rights" as "individual rights to life, liberty, equality,
and dignity” as preserved in international covenants and cherished by the Constitution of
India, Section 2 of the Act further states that these rights are enforceable in India by the
courts. 58 The Act calls for the creation of Special Courts to deal with cases of human rights
55
International Convent of Civil and Political Right, 1966.
56
Law Commission, 177th Report on Law Relating To Arrest (December, 2001).
57
Preamble of Human Rights Act, 1993.
58
Section 2, Human Rights Act. 1993.
23
violations and to ensure a fast trial in such situations. 59 As a result, this Act views arbitrary
deprivation of liberty as a violation of an individual's human rights, and it works to protect
those rights from being violated in any way.
Protection Guaranteed by ICCPR
The Covenant guarantees a person's right to life, liberty, and security, and it specifies
expressly that in order to secure these rights, a state must offer protection under the law to the
individual both nationally and domestically. 60 As a result, a government must take actions to
ensure that fundamental rights are not violated arbitrarily. The Convention forbids arbitrary
deprivation of liberty by arrest or incarceration and sets a number of safeguards to prevent
it.61 These safeguards include the right to be informed of the reason for arrest and any
charges,62 “to be brought before a Judicial Officer as soon as possible, to be tried within a
reasonable time, to bring proceedings before a Court, to have the lawfulness of an arrest or
detention determined without delay, 63 and to be compensated if an unlawful arrest or
detention is established”.64
The Covenant further stipulates that while deciding on a criminal charge against an
apprehended individual, the law enforcement officer must scrupulously adhere to the
following protocol, which must not be broken under any circumstances. 65 They are-
1. “The arrested person should be informed promptly the nature and cause of
charge levied against him in detail and in the language in which he
understands.
59
Section 30, Human Rights Act, 1993.
60
Law Commission, 177th Report on Law Relating to Arrest (December, 2001).
61
Article 9(1), ICCPR, 1966.
62
63
64
Article 9(5) ICCPR, 1966.
65
Article 20(3), Right against Self Incrimination under Constitution of India, 1950.
24
2. He can ask for an advocate of his own choice and adequate time and facilities
should be given to him and his counsel so that he will do preparation for his
defence.
Time should be an important factor; there should not be any undue delay in
trial.
3. The person should be provided legal assistance of his own choice and in cases
where the person is unable to engage the counsel then it should be provided by
the Court.”
Other legal instruments that will be referred to in this chapter are:
 The Body of Principles for the Protection of All Persons under any Form of Detention
or Imprisonment, adopted by the General Assembly in 1988;
 The Declaration on the Protection of All Persons from Enforced Disappearance,
adopted by the General Assembly in 1992;
 The Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary
and Summary Executions, recommended by Economic and Social Council resolution
1989/65.
DEPRIVATION OF LIBERTY UNDER INDIAN

CONSTITUTION AND THE CRIMINAL PROCEEDURE
CODE
The Criminal Procedure Code does not define the term "arrest," although it does mean "to
take or hold in custody by power of law." Detention and seizure of a person by someone
acting under authority (e.g., a police officer) can be defined as the development of the term. 66
The Supreme Court, on the other end, had enough and clarified the phrase Arrest in Article
22 of the Indian Constitution in case of State of Punjab v. Ajaib Singh.67.The word is
prescribe as "physical restraint of a person under the authority of the law in respect of an
66
"Arrest." Encyclopaedia Britannica 2009, Ready Reference - Chicago: Encyclopaedia Britannica, 2009.
67
AIR 1953 SC 10.
25
alleged allegation, failure, or breach of the law," according to the Court”. 68 Supreme Court
ruled that the term "arrest" relates to the restriction of a person's liberty, and thus keeping
anyone in custody under the CrPC is the same as arresting them. The terms "arrest" and
"custody" are interchangeable. It is a method of restricting a person's freedom. 69
The Indian Constitution is supreme above all other laws. It not only directs but also enforces
rigorous adherence to all of the guidelines it has established for the execution of all civil,
criminal, and other laws in the nation. The Indian Constitution has created some fundamental
criteria by proclaiming these yardsticks in the form of basic rights of accused persons. The
procedural and substantive criminal legislation mirror the constitutional principles in great
detail. They must be viewed and valued not only in the form and manner in which they are
codified in the Constitution and criminal laws, but also in the perspective of the Supreme
Court of India's interpretation of such rights as declared from time to time. 70
Certain basic and core rights cannot be infringed upon in the execution of any substantive or
procedural criminal legislation.
Without a doubt, all such substantive and procedural laws contain built-in devices of checks
and balances to make sure that, on the one hand, the compliance of penal laws is in the best
interests of the country at large, and, on the other hand, just, fair, and reasonable procedures
are followed in all such efforts to protect the accused persons' interests. The Fundamental
human rights guaranteed to a person in police custody under the law of the land are stated in
Chapter III of the Indian Constitution.
They may be listed as under:
3.1.1 Right to Equality
Article 14 of our Indian Constitution says that, “The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India”. 71
68
Ibid.
69
State of Haryana v Dinesh Kumar (AIR 2008 SC 1083).
70
Deepa Singh, Human Rights and Police Predicament, 170 (2002).
71
The Constitution of India, art. 14
26
Article 14's accepted stance is that it targets arbitrariness, and all acts of the state or its
apparatus that are arbitrary are in violation of the article.
As a result, if the arrestee's treatment is arbitrary and unjustified, it is a violation of Art. 14.
In reality, equality and arbitrariness are sworn rivals; one belongs to the rule of law in a
republic, while the other belongs to an absolute monarch's whims and caprices. When an act
is arbitrary, it implies that it is unfair in both political logic and constitutional law, and so
violates Article 14 of the Constitution. Article 14 prohibits the government from acting
arbitrarily and assures justice and equality of treatment. The idea of reasonableness, which is
an important aspect of equality or non-arbitrariness both legally and philosophically,
permeates Article 14 like a gloomy existence.
The notion of justice is founded on the doctrine of equality. It asks that all people, regardless
of their differences, be treated equally. In this context, the notion of equality connotes a type
of compensating treatment aimed at making all men equal before the law, regardless of caste
or faith, large or little, privileged or unprivileged, or rich or poor. However, the concept of
equality does not necessarily mean that everyone should be treated alike regardless of
individual differences. Since absolute equality is impossibility, therefore, it means that among
equals the law should be equal and equally administered. It further, means that everyone,
classified as belonging to one category for a particular object shall be treated in the same way
without any kind of discrimination. 72
Lest an accused, who has earned the wrath of the society for penal prosecution and sanctions
for the alleged violation of the prescribed norms, or an individual is chosen for indictment for
wrongs done in retrospect or for creating conditions prejudicial to his interests, does not
suffer in a discriminatory way, it is incumbent upon the State that protection is afforded to
him. A criminal trial is distinctive embodiment of social interest in the process of
administrating law. The accusatorial system of trial which obtains in the legal system of the
day has already recognised in favour of the accused as against the State, the right to remain
silent by prescribing the presumption of innocence, by requiring the State to prove guilt
beyond reasonable doubt, in the requirement of elaborate pretrial evidentiary screens, arrest,
charge and trial. The recognition of these rules is well within the scope of the equality clause
enabling the accused to get protective considerations against the powerful adversary which is
72
A. N. Chaturvedi, Rights of Accused Under Indian Constitution, 59 (1984)
27
the State. As the parties in the criminal trial viz. the State and the person are unmatched in
terms of strength and resourcefulness, and the individual is always at a disadvantageous
position, the imbalances are more likely to prejudice the individual's interests. As a result, the
doctrine of equality plays a larger role in understanding the rights of someone who has been
accused of committing a crime. 73
The promise of equality before the law is part of what Dicey refers to as England's rule of
law. It means that no one is above the law, and that everyone, regardless of position or
circumstance, is subject to regular judicial jurisdiction. "With us”.
"Any official from the Prime Minister down to a constable or a tax collector is under the
same responsibility as any other citizen for every act done without legal reason," 74 Dicey
wrote. Even when the aim is to secure paramount requirements of law and order75, the rule of
law mandates that no one be subjected to harsh, uncivilised, or discriminating treatment.
3.1.2 Right against Ex-Post Facto Laws
According to Article 20(1) of the Indian Constitution, by specifically declaring this right as a
fundamental right under Chapter III of the Constitution, the Indian Constitution guarantees
protection against punishment for acts committed retrospectively or retroactively.
73
A. N. Chaturvedi, Rights of Accused Under Indian Constitution, 60 (1984).
74
Dicey, Law of Constitution, 202-203.
75
Rubinder Singh V. Union of India, AIR 1983 SC 65.
28
The Constitution of India ensures protection against conviction for offences enacted
retrospectively or retroactively by its specific declaration of this right as fundamental rights
under Chapter III of the Constitution. Article 20(1) of Indian Constitution states as under:
“No person shall be convicted of any offence except for violation of a law in force at the time
of the commission of the Act charged as an offence, nor be subjected to a penalty greater than
that which might have been inflicted under the law in force at the time of the commission of
the offence.”76
There is difference between an ex post facto law and a retrospective law. The maxim “Nulla
Poena Sine Lege” reflects the notion that no one should be punished until he has committed a
specific violation of the criminal law, which must be enacted in exact and precise terms
beforehand.
I. The law precludes that, the imposition of criminality cannot be retrospective;

II. The application of a criminal law by analogy to a circumstance that does not clearly
belong inside it;
III. The use of too broad and ambiguous language in criminal law.
the difference between ex post facto law and retrospective law was drawn for the first time in
the United States of America in Calder v. Bull 77 and it was held that "Every ex post facto law
must necessarily be retrospective but every retrospective law is not ex post facto law. The
former only is prohibited. Every law that takes away or impairs, rights vested agreeably to
existing laws is retrospective and generally unjust, and may be oppressive, it is a good
general rule that a law should have no retrospect , but there are cases in which the law may
justly , and for the benefit of community, and also of individuals, relate to a time antecedent
to their commencement , as status of oblivion or of pardon ...that create or aggravate the
crime, or increase the punishment , or change the rules of evidence for the purpose of
conviction...there is a great and apparent difference between making an unlawful act lawfully
, and the making an innocent action criminal and punishing it as a crime."
Articles 245, 246 and 248 of the Indian Constitution provide the Parliament and state
legislatures the ability to create legislation. There is nothing in these Articles that says Indian
76
The Constitution of India, art. 20.
77
Calder V. Bull, 1978 (3) Dallas 386 at 391.
29
legislatures don't have the power to enact retroactive law, which any sovereign legislature
does. This issue was dealt in detail by the Supreme Court of India in J.K. Jute Mills v. State
of U. P78and held that:
“The power of a legislature to enact a law with reference to a topic entrusted to it is, as
already stated, unqualified subject only to any limitation imposed by the Constitution. In the
exercise of such a power, it will be competent for the legislature to enact a law, which is
either prospective or retrospective.”
In Union of India v. Madan Gopal79 , it was held by this court that, “the power to impose tax
on income under entry 82 of List I in Schedule VII to the Constitution, comprehended the
power to impose income-tax with retrospective operation even for a period prior to the
Constitution. The position will be the same as regards laws imposing tax on sale of goods.”
In M. P. V. Sundararamier & Co. v. State of Andhra Pradesh, 80 this The court had to evaluate
the constitutionality of a legislation approved by Parliament that gave retroactive effect to
laws passed by state legislatures imposing a tax on certain purchases made in the course of
interstate commerce. One of the arguments made against the law's legality was that, under the
wording of Art. 286 (2), retrospective legislation was not within Parliament's jurisdiction.
In rejecting this contention, the court observed:
Article 286 (2) merely provides that, “No law of a State shall Impose tax on inter-State sales
except in so far as Parliament may by law otherwise provide. It places no restrictions on the
nature of the law to be passed by Parliament. On the other hand, the words 'in so far as'
clearly leave it to Parliament to decide on the form and nature of the law to be enacted by it.”
“What is material to observe is that the power conferred on Parliament under Art.286(2) is a
legislative power, and such a power conferred on a Sovereign Legislature carries with it
authority to enact a law either prospectively or retrospectively, unless there can be found in
the Constitution itself a limitation on that power." And it was decided that the statute was
within the legislature's authority.
78
J. K. Jute Mills v. State of U.P, AIR 1961 SC 1534 para 15.
79
AIR 1954 SC 158.
80
AIR 1958 SC 468.
30
As a result, we must conclude that the Validation Act is not ultra vires the legislature's
authority under entry 54 since it acts retroactively.
The authority of retrospective legislation is, however, expressly limited in that it cannot
establish retrospective criminal laws. Any other law, including tax laws, may be rendered
retroactive under the Constitution if no basic right is infringed as a result of the retrospective
legislation removing a vested right. As a result, it cannot be assumed at face value and as a
matter of law that any restriction that has retrospective effect and affects rights obtained
under prior law is inconsistent with the constitution as obnoxious to the freedom guaranteed
by sub-clause. (f) or (g) of cl. (1) of Art. 19.12 is unconstitutional as obnoxious to the
freedom guaranteed by sub-clause.
The Indian Constitution protects citizens' right to life and personal liberty against the state's
arrest power, while also allowing the state to take away a person's personal liberty provided it
falls within the scope of “process established by law”. 81
Despite, the Constitution of India article 21 provide authorization to the government to

deprive the liberty of its subjects, but such detention should be according to the “procedure
established by law” and the ceiling of such detention should not extend to 24 hours without
any judicial sanction as fixed by article 22.
It's critical that the arrest was carried out within the bounds of the law. Arrest is
constitutionally justifiable on the grounds that fairly justify imprisonment and the constraints
that it imposes on fundamental freedoms under Article 19 of the Constitution. 82 Power to
arrest is granted to police forces, magistrates, and to a limited extent to private individuals
under the CrPC, while power to arrest is granted to various officials such as customs,
railways, excise, and others under other statutes.83 The phrase liberty is highly important; in
its most basic definition, “liberty is the willingness and power to do what one desires, without
being affected by any other source - internal or external.” In a political context, liberty refers
to the guaranteed enjoyment of fundamental rights without undue intervention from the
81
Article 21, COI, 1950.
82
M.P.Jain, Indian Constitutional Law 98 (Kamal Law House, Calcutta, 6th ed., 2010).
83
Ratanlal and Dhirajlal, The Code of Criminal Procedure, 1773 (Lexis Nexis, 17th ed., 2009).
31
masses or the government.84 So, the State is attempting to control the liberties of the masses
while also promoting the public good in order to maintain law and order.
As a result, Article 21 establishes that a person's liberty is revoked in accordance with legal
procedures, and Article 22 establishes safeguards in the event that a person's personal liberty
is revoked unjustly or arbitrarily. Laws pertaining to arrest and detention, as well as
procedures to prevent the illegal deprivation of a person's liberty, are contained in Article
22(1), (2), and (3).
It provides the following safeguards to the arrested person85 -
“(1) Right to be informed the grounds for such arrest ‘as soon as may be’ i.e., reasonably
possible.
(2) right to consult and to be defended by a legal practitioner of his choice
(3) Right to be produced before the nearest Magistrate within twenty-four hours after arrest
excluding the time necessary for the journey from the place of arrest to the Court of
Magistrate;
(4) Right not to be detained in custody beyond twenty-four hours without the authority of a
Magistrate.”
These provisions for the protection of liberty were included in the previous Code of Criminal
Procedure, which was enacted in 1898.; and later were inserted into the constitution under
part III to restrict the parliaments’ ability to invalidate this right. As a result, the Constituent
Assembly adopted these clauses in response to complaints of Article 15 of the previous law,
which is now Article 21 of the Constitution86, for “Infringing on life and personal liberty.”
Because Article 21 specifies that personal liberty can be taken away by legal procedure, it
was a difficult question whether to use the phrases "due process" or "means established by
law." As a result, the Constituent Assembly agreed, after much discussion, to replace
"procedure established by law" for "due process" as a compensation for the rule's essence.
Article 22 was likewise put into the Constitution as the previous Code's Article 15 A.
84
Uma Devi, Arrest, Detention and Criminal Justice System (Oxford University Press, 2012).
85
86
Extract from Constituent Assembly Debate, Vol. VII (September 15, 1949).
32
By way of Judicial Activism, The Courts played an important role in making the
constitutional protections more efficient and relevant, and in other terms, the Judiciary set
major procedural constraints for the use of the government's arrest and detention power. Not
just the courts, but also the Law Commission, the National Human Rights Commission, and
others have suggested that different provisions be incorporated into the CrPC to improve the
constitutional safeguards related to arrest and imprisonment.
The CrPC was amended many times as a result of the judiciary's and commissions' efforts to
make arrest laws more efficient and effective. However, police continue to abuse and misuse
their arrest power As a result, in situations of arbitrary arrest and detention, Article 32 and
226 of the Constitution give a judicial recourse. Under the writ of Habeas Corpus, a person
can petition the Supreme Court or a High Court to dispute the legitimacy of their arrest and
incarceration. 87
International Standards viz-a-viz The Indian constitution
Parts III and IV of the Indian Constitution gave expression to the concept of human rights by
providing fundamental rights to citizens and, in some cases, even the accused (see, for
example, Article 20(3)). In reality, the Indian Constitution has embraced and incorporated at
least 23 of the 30 articles of the 1948 Universal Declaration of Human Rights.
As a result, we may conclude that India has successfully implemented the safeguards offered
by the UDHRC and the ICCPR into its legal system, either by enacting new legislation or
amending existing legislation; in fact, some of them have already been incorporated into the
Indian Constitution. The Indian Constitution's Articles 21 and 22 are similar to the above-
mentioned international safeguards and are broad enough to include new laws in Article 21.
Except for Article 9(5) of the ICCPRC, India has adhered to all international norms to which
it is a signatory. The ICCPR's provisions are similar to different Articles and Sections of the
Indian Constitution and the Criminal Procedure Code,1973, respectively. It is self-evident,
87
33
however, that the ICCPR strengthens an individual's fundamental rights to life and liberty, as
well as the restriction of arbitrary arrest or incarceration, and that if a person's liberty is
denied, it must be on legal grounds or in accordance with the law. 88 and India committed to
follow these protections, which include that if a person's liberty is taken away, he must be
brought before a judge within a reasonable period, which cannot exceed 24 hours, and that a
Magistrate's permission is required for continuing detention; otherwise, he will be freed. 89
The person is entitled to take proceedings before Court etc.
It can be concluded that, the issue here is India's objection, which largely concerns the fifth
paragraph of Article 9 of the ICCPR, which states that victims of arbitrary arrest or
imprisonment entitlement to compensation. 90 The Indian legal system does not recognise
compensation for victims of arbitrary or unlawful arrest and imprisonment, reflecting and
perpetuating a stifling culture of judicial impunity and law enforcement agency
unaccountability. India has submitted a reservation to Article 9(5), which pertains to the right
to compensation for victims, noting that the Indian legal system does not recognise paying
victims of arbitrary or unlawful arrest and imprisonment.91 However, certain Supreme Court
of India judgements have recognised the right to compensation for victims, and this has now
been included into the Indian Criminal Justice System92.
The Supreme Court in Nilabati Behra v. State of Orissa and PUCL v Union of India93 has
ruled that, “the state can be held vicariously liable for the illegal acts of its officials, and that
the court can order the state to pay compensation in cases of illegal arrest and detention,
demonstrating that India's reservation to Article 9(5) of the ICCPR is no longer relevant and
is a positive step toward protecting people from arbitrary and illegal detention.”
88
Article 21, COI, 1950, ‘Procedure established by law.’
89
Section 57, CrPC,1973.
90
ICCPR,1966.
91
UK Essays, India’s Reservations and Declarations to Core Human Rights Conventions International Law
Essay (November 2013) available at: http://www.ukessays.com/essays/law/indias-reservations-anddeclarations-
to-core-human-rights-conventions-international-law-essay.php?cref=1 (Visited on May 20, 2014).
92
Nilabati Behra v State of Orissa 1993 SCR (2) 581, PUCL v UOI, Sheela Barse, etc.
93
AIR 1993 SC 1960, 1995 SCC Supl. (2) 572.
34
In accordance with Article 10 of the ICCPR, India has also declared that all those deprived of
their liberty must be treated with humanity and respect for the inherent dignity of the human
person. The main point of contention in this chapter is that India does not meet international
standards. Despite promises to respect and obey international standards in situations of
arbitrary arrest and imprisonment, and despite the fact that these standards were effectively
integrated into Indian law, India failed to uphold the international standards' responsibilities
to defend human rights. As shown in a number of reports on human rights violations by
“Human Rights Watch, NHRC, UNHRC, CHRI,” and others, police commit a variety of
human rights violations, the most prominent of which is arbitrary deprivation of liberty. All
of these reports reveal a rise in the number of arbitrary arrests and detentions by police,
implying that officers are misusing their arrest power. According to a Human Rights Watch
investigation, police officers make illegal arrests owing to political influence, bribery, or
allegations of police mistreatment. In reality, the police have stated that they employ illegal
methods to collect information and concoct false charges against the arrested individual, as
well as that they hold the person in custody for longer periods of time without forwarding to
the magistrate.94 Despite the fact that supreme court has provided the mandatory rules, in DK
Basu v. West Bengal.95 the police are not adhering to it.
The report on ‘Police Brutality in India' submitted to CHRI 96 also depicts the incidence of
atrocities and brutality by Indian police, as well as reports from the National Human Rights
Commission, the Law Commission, and the National Police Commission, all of which
continue to make recommendations to prevent power abuse. Despite incorporating all of
these measures into the legal system and providing people with secured rights, the frequency
of arbitrary arrests and detentions, as well as incidents of police violence and illegal loss of
liberty, has increased.
As a result, despite the fact that India's Constitution and Statutory Law include international
values, it fails to effectively implement them, and Indian police routinely violate international
norms. This shows that while the Indian legal system complies with international standards, it
94
Ibid.
95
AIR 1997 SC 15.
96
Supra note, 33.
35
falls short of the international ideal, because the goal of these international standards is to
protect individuals' rights against arbitrary and unlawful violations, which India is far from
achieving.
Deprivation of liberty under Indian constitution and the Criminal procedure

code,1973
Through the comparison in between the constitution and CrPC the researcher has studied
whether the provision in both the statutes are in line or not. An argument is that the law is
incoherent in and of itself, because several of the CrPC provisions contradict constitutional
guarantees about arrest and imprisonment. As a result, in order to support this claim, the
researcher conducted a comparative study on CrPC and Constitution. 97
Right to Know the Reasons for Arrest
Article 22 (1) deals with the grounds for arrest and how they should be disclosed to the
individual who has been arrested. It imposes a negative responsibility on the government,
mandating that no one be kept in the dark regarding why they have been arrested. It makes it
clear that if a person is detained, it is solely the obligation of the officer involved to inform
the arrestee of the reason for the arrest as soon as possible. The only provision in the old
CrPC related to notifying the reasons for arrest was Section 173(4), which stated that the
officer in charge of the police station must provide the arrested person with a copy of the
charge sheet and F.I.R before the start of the investigation and trial, which is in conflict with
the requirements of Article 22(1) of the Constitution.
As a result, the word "commencement of investigation and trial" was too broad and caused
too much lag, so because beginning of a trial can sometimes take several months. So, the
Criminal Law Amendment Act 2005 was passed, and Section 50 was included to the revised
Criminal Procedure Code 1973.This section extends the scope of Article 22. As a result,
Section 50 of the CrPC, 1973, mandates not only the notification of the reasons for arrest, but
97
CrPC,1898 and CrPC, 1973
36
also the notification of the arrested person's right to bail if he is arrested for a bailable
offence.98
In addition, Section 50 A of the CrPC99 has been added, extending the benefit to a greater
degree. Section 50A mandates the detaining authority to inform the detained individual of his
right to notify a family member or friend of his arrest, while also establishing a time limit,
requiring the police officer to inform the arrested person of this right "as promptly as" he is
brought to the police station.100
Under this Section, the police officer must further record the name of the person who has
been notified of the arrest101 in a diary issued by the Government. When a person is detained
and brought before a magistrate, the magistrate is responsible for ensuring that the
appropriate procedure was followed by the law enforcement officer. 102
Although, this section is similar to the section proposed by the law commission in its 154 th
report103 but the section is not as extensive as the report suggests. The law commission has
outlined the procedure to be followed when arresting or detaining an individual. In order to
best serve the constitutional principles 104, it is wise to substitute the law commissions
suggested section in place of section 50A of the Code of Criminal Procedure
Right to Get Legal Assistance

In the previous Code of Criminal Procedure, Section 340, the provision relating to legal
assistance was institutionalized as a Statutory right (1)
This provision was taken from there and guaranteed by the Constitution as a basic right under
Article 22(1), which gives an arrested person the right to consult with a lawyer and “to be
98
Section 50, CrPC, 1973.
99
Ins. CrPC (Amendment) Act 2005.
100
Section 50A (2), CrPC, 1973.
101
Section 50A (3), CrPC 1973.
102 102
103
Please Refer. Law Commission 152nd Report on Custodial Crimes (August, 1994) available at,
http://lawcommissionof india.nic.in /101-169/Report152.pdf P 52(Visited on July 15, 2021).
104
Ibid.
37
defended by a legal practitioner of his choice.” 105 As a result, it is recommended that it is the
law enforcement officer's responsibility to tell the arrested individual of his right to consult a
lawyer of his preference, which should not be withheld under any circumstances; it is a
statutory necessity. 106 Now, Section 340(1) of the old Law has been integrated into Section
303 of the new CrPC, 1973, with the exception that the word "of his own choice" is absent in
the old code. Section 303, on the other hand, states that "Any individual accused of an
offence before a Criminal Court or against whom any process is filed in this Court has the
right to be represented by a counsel of his choice” 107.
As a result, to align with the constitutional immediate safeguard, the CrPC (Amendment) Act,
2008 added a new section 41D, which states that when a person is arrested and interrogated
by the police, he is entitled to meet with an advocate of his choice during interrogation, but
not throughout interrogation.108
To provide Legal aid

Under the Directive Principle of State Policy, Article 39 A of the Indian Constitution has
been included to give legal aid to individuals who do not have the financial resources to do
so.109 Persons are guaranteed fair treatment and free legal representation under Section 39A,
and the state is required to implement necessary laws or measures to provide individuals with
equal chance and free legal assistance in obtaining justice. It asserts that no one's right to
justice should be declined due to a handicap or financial difficulty. 110 Though this section is
not mandatory to be followed by the state but now due to judicial activism there are number
of case law which make it a settled principle that the fundamental right of the accused as
contained in the requirement of right to liberty and fair treatment as require by Article 21 and
also required under article 14 which insures individuals right to equality and equal protection
105
Article 22(1), COI, 1950.
106
Khatri and others v State of Bihar (AIR 1981 SC 928).
107
108
Section 41 D, CrPC (Amendment) Act, 2008.
109
42nd Amendment, 1976, COI, 1950.
110
Ibid.
38
before the law and prohibits state to infringe the liberty of an individual without even
providing him the opportunity to consult a lawyer. 111
While Section 304 of the CrPC 1973 provides for the granting of legal aid to accused persons
in certain circumstances. As a result, this Section mandates that the Court provide legal aid at
no cost to destitute people who are unable to hire a lawyer or be defended by a pleader in
order for them to have a fair chance at justice. 112 In a country like India, where nearly two-
thirds of the population is poor and illiterate, they are uninformed of these rights, therefore
they are limited to a few wealthy and educated individuals, which is clearly not a fair, just, or
rational process of justice. Everyone should have the opportunity to have a fair trial, hence
legal assistance has been included in the legislation as an inherent aspect of a fair trial under
Article 21 but still no drawbacks suffered. 113
Right to be Produced Before Magistrate within 24 Hrs

Article 22(2) of the Constitution provides a mandatory provision as per which, “no one can
be detained more than twenty-four hrs without the authority of magistrate.”114 This section
explicitly states that everyone detained must appear before the nearest magistrate within
twenty-four hours after his arrest, discounting the time it takes to transport him to the Court.
As a result, Article 22(2) has been incorporated with the intention of applying the judicial
mind to check the legality of a person's arrest and detention within twenty-four hours because
the power to arrest is constitutionally valid when it falls within the confines of Articles 14,
19, and 21, and it should not contravene any of these Articles. 115 This article establishes the
maximum time restriction for detaining a person in police custody, which is 24 hours, as well
as the minimum time limit required to pass the Constitutionality test. The reasonableness test
is used to determine whether a person's detention is constitutional. As a result, it should be as
quickly as possible, i.e., within a reasonable amount of time.
111
S.Singh, Legal Aid And Right To Equality, p.172 (Deep and Deep Publication, 2008).
112
113
Khatri and others v State of Bihar (AIR 1981 SC 928).
114
Article 22(2), COI, 1950.
115
D.D. Basu, Commentaries on the Constitution of India, Vol.3(Lexis Nexis, Butterworth, 8th ed., 2008).
39
Sections 56 and 57 of the CrPC, on the other hand, provide for the presentation of a person
apprehended without a warrant before a Magistrate.
Section 56 states that a police officer who makes an arrest without a warrant must take the
apprehended individual to the Magistrate with jurisdiction in the matter or any officer in
charge without undue delay and subject to the provision of bail. While Section 57
necessitates the presentation of a person before a magistrate within 24 hours, it is analogous
to Article 22, which mandates the production of a person to the nearest Magistrate.
However, in circumstances of arrest under a warrant, Section 76 of the CrPC provides the
similar procedure for the appearance of a person before a Magistrate. The police officer or
any other person executing a warrant is required by this provision to bring the apprehended
individual before the court “without undue delay.”
The old Code116 did not provided the time limit which the new code of CRPC has expressly
laid down that is within twenty-four hours. With the approval of the Magistrate, a law
enforcement officer may hold a person for more than 24 hours, and a fifteen-day extension to
retain a person in police custody is allowed under the Code of Criminal Procedure. If the
officer feels that additional custody is required for the inquiry, he can apply to the Magistrate
under Section 167 for authorization to detain him for up to 60 days, with a maximum of 90
days. The individual will be freed on bond after 90 days. If the individual is detained again,
the police officer will be obliged to pay compensation to the person.117
Now let's look at how Article 22 compares to the power of arrest under the CrPC.
Section 41 of the CrPC primarily deals with imprisonment without a warrant, but Section 42
and Section 151 of the CrPC, 1973 also deal with instances when a police officer can detain a
person without court authorization. 118
116
CrPC, 1898.
117
State of Maharashtra v Ravikant S. Patel (AIR 1991(2) SCC 373.
118
B.Uma.Devi, Arrest, Detention And Criminal Justice System, (Oxford Publication, 2012).
40
The Criminal Law (Amendment) Act 2008, on the other hand, has significantly altered the
law of arrest.
ARREST IN CRPC
Arrest without Warrant
As maintained earlier, the exigencies of the circumstances may require a person to be arrested
without a warrant if such person is reasonably suspected to have committed a serious ,
cognizable offence. Even in the less serious crime arrest may be necessary to ascertain the
name and address of the offender perpetrating the crime. It may also be necessary as a
preventive measure to make arrest without warrant for the fore stalling of impeding crimes,
and for enabling the police to discharge their duties effectively.
Arrest by police officer
Any police officer may without an order from a Magistrate and without a warrant, arrest any
person :-
Who commits a cognizable offence in the vicinity of a law enforcement officer; or against
whom a reasonable allegation has been made, substantiated evidence has been received, or a
sufficient evidence exists that he has engaged in a cognizable offence punishable by term of
imprisonment of less than seven years or a term of seven years, with or without fine, if the
following conditions are met:
(i) “the police officer has reason to believe on the basis of such complaint, information, or
suspicion that such person has committed the said offence;
(ii) the police office is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
41
(c) to prevent such person from causing the evidence of the offence to disappear or tampering
with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade him from disclosing such facts to the
Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be
ensured,
and the police officer shall record while making such arrest, his reasons in writing.
[Provided that a police officer shall, in all cases where the arrest of a person is not required
under the provisions of this sub-section, record the reasons in writing for not making the
arrest.]
(ba) against whom credible information has been received that he has committed a
cognizable offence punishable with imprisonment for a term which may extend to more than
seven years whether with or without fine or with death sentence and the police officer has
reason to believe on the basis of that information that such person has committed the said
offence;]
(c) who has been proclaimed as an offender either under this Code or by order of the State
Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen
property and who may reasonably be suspected of having committed an offence with
reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or
attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the
Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable suspicion exists, of his having been
42
concerned in, any act committed at any place out of India which, if committed in India,
would have been punishable as an offence, and for which he is, under any law relating to
extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5)
of Section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from another
police officer, provided that the requisition specifies the person to be arrested and the offence
or other cause for which the arrest is to be made and it appears therefrom that the person
might lawfully be arrested without a warrant by the officer who issued the requisition.” 119
Section 41120 “provides the police power to arrest a person without warrant or without any
order of magistrate121 in the following cases-
If there is a cognizable offence a police officer may arrest any person on suspicion or any
reasonable complaint for his involvement in the commission of offence. 122It provides a
detailed list of persons to be arrested by a police officer without warrant.”
These are,123 Anyone involved in housebreaking, or who is a proclaimed offender or in

possession of stolen goods, or who attempted to escape from lawful custody or disrupt police
in the performance of its duties, or who is guilty under foreign law or extradition law, or who
has violated Section 356(5), i.e., a person can be arrested on requisition. If the person fits into
one of the Section 109 or Section 110 categories, he may be arrested.
119
Id.
120
122
Ibid.,
123
43
ARREST ON REFUSAL OF NAME AND ADDRESS
section 42 of the CrPC illustrate the reasons for such arrest
(1) “When any person who, in the presence of a police officer, has committed or has been
accused of committing a non-cognizable offence refuse, on demand of such officer, to give
his name and residence or gives a name or residence which such officer has reason to believe
to be false, he may be arrested by such officer in order that his name or residence may be
ascertained.
(2) When the true name and residence of such person have been ascertained, he shall be
released on his executing a bond, with or without sureties, to appear before a Magistrate if so
required:
Provided that, if such person is not resident in India, the bond shall be secured by a surety or
sureties resident in India.
(3) Should the true name and residence of such person not be ascertained within twenty-four
hours from the time of arrest or should he fail to execute the bond, or, if so required, to
furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having
jurisdiction.”
Arrest by a private person
It is in the public interest for a person who commits a very serious offence to be apprehended
right away and dealt with swiftly in line with the law. The police's abilities to make arrests
without a warrant are useful in certain instances, but they may not be sufficient in all cases.
So, if a major crime is committed in front of a large number of private individuals and no law
enforcement officer is present, it is unrealistic to expect a private citizen to arrest the
perpetrator.
 Section 43 of CrPC states that,
1) “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,
44
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 to be taken in custody to the nearest police station.
2) If there is reason to believe that such person comes under the provisions of Section
41, a police officer shall rearrest him.
3) 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.”
Arrest by a magistrate
 Section 44 of the code proved that the magistrate also has the power to arrest a
person. “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. And 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.”
 Section 151 “gives police the authority to make arrests without the consent of a
magistrate in order to prevent the commission of a criminal offence. When the police
believe that there is no other way to prevent the crime but to arrest the person, he can
arrest him and hold him in prison. However, such confinement shall not exceed 24
hours unless prolonged detention is warranted”.
PROCEEDURE FOR LAWFULLY DEPRIVING THE LIBERTY OF AN

INDIVIDUAL —
Section 46 provide the procedure to a make an arrest
45
(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 woman shall be arrested after sunset and before
sunrise, and where such exceptional circumstances exist, the woman police officer shall, by
making a written report, obtain the prior permission of the Judicial Magistrate of the first
class within whose local jurisdiction the offence is committed or the arrest is to be made.”
In the instance of a proclaimed offender under Section 82, sub-section (4), this provision
proposes to alter Section 46 to enable the police officer to use whatever measures required to
achieve the arrest, including inflicting death. A new sub-section (4) is being introduced to
Section 46, making it illegal to arrest a woman after nightfall and before daybreak unless it is
unavoidable.
Section 46 has provided “the procedure to arrest a person. 124 and asserts that submission to
the custody either by word or action is sufficient to constitute arrest. The police officer can
also touch or confine the body of the person if there is no oral submission 125 and police can
use all means necessary to arrest the person if there is forcible resistance against arrest, or
person attempts to evade the arrest.126 It does not give any right to cause the death of a person
124
125
Section 46 (1), CrPC, 1973.
126
46
who is not accused of an offence punishable with death or with imprisonment for life while
arresting him.”127
When a subordinate police officer on the order of senior makes an arrest
Section 55 provide that, when a police officer on duty of a police station or a police officer
conducting an investigation under Chapter XII necessitates any officer subordinate to arrest a
person who may legitimately be arrested without a warrant (other than in his presence), he
shall deliver to the officer required to make the arrest an order in writing specifying the
person to be arrested and the offence.
This shall not affect the power of a police officer to arrest a person under Section 41.
Right to be produced in front of magistrate withing 24 hours
Section 57 states that, In the utter lack of a special order of a Magistrate under Section 167,
no law enforcement officer shall detain in custody a person arrested without warrant for a
longer period than is appropriate in the circumstances of the case, and such duration period
not exceeding twenty-four hours exclusive of the time required for the journey from the
location of arrest to the Magistrate's Court.
Arrest to made strictly accordance to the code
Section 60-A provides that, no arrest shall be made unless it is in compliance with the
requirements of this Code or any other legislation in effect at the time.
Section 49 provide that, The person arrested shall not be subjected to more restraint than is
necessary to prevent his escape.
Right to be informed about the grounds of the arrest and of right to bail
127
47
Section 50 of the CrPc mandates that, Any law enforcement officer or other person who
arrests a person without a warrant must immediately inform him of the nature of the offence
for which he has been detained, as well as any additional grounds for his detention.
If a law enforcement officer arrests someone without a warrant who isn't charged with a non-
bailable crime, he must tell the person detained that he is entitled to bail and that he can
arrange for sureties on his behalf.
Obligation of a person making arrest to inform about the arrest etc., to a nominated
person.
Section 50-A imposes requirements, any law enforcement officer or other person who makes
an arrest under this Code must immediately inform any of the arrested person's friends,
relatives, or other persons whom the arrested person has disclosed or nominated for the
purpose of receiving such information about the arrest and the location where the arrested
person is being held.
As soon as the detained person arrives at the police station, he must be notified of his rights
under paragraph (1), and the names of those who have been informed shall be recorded in a
police diary.
In the case of such an arrested individual, the magistrate should convince himself that the
requirements of sub-section (2) and (3) of the arrest procedure have been met.
Right to be Examined by the medical officer
Section 54 provides that, When a person is arrested, he must be examined by a medical

officer in the service of the federal or state government, or if the medical officer is
unavailable, by a registered medical practitioner, as soon as possible. If the arrested person is
a woman, the examination will only be conducted under the supervision of a female medical
officer, and if the female medical officer is unavailable, the examination will be conducted by
a registered medical practitioner.
And the medical officer after completing the examination of the arrested person has prepare a
record of such examination and mention the specifics of such examination such as the injuries
48
or the marks of violence upon the arrested, and the approximate time of such marks and
injuries.
The copy of such examination must be furnished to the person arrested and to the person
nominated by the arrested person.
According to the findings of the research, while some sections of the CrPC are in conflict
with Article 22(1) and (2) of the Constitution, the majority of it adheres to the Constitutional
Guarantee. This shows that the law is enough to prevent arbitrary arrest and imprisonment,
and that the commissions are working with the government to draught robust laws to
safeguard people's rights.
On a regular basis, the court interprets and moulds the law to meet the needs of society. State
agencies, on the other hand, continue to disobey these regulations. This implies that the
legislation concerning arrest and detention is good, and there is ample room for new laws or
amendments to current laws to remedy any problems, but the problem is with execution,
since these laws are poorly executed. These regulations are routinely abused and misapplied
by police, and no one is in charge of monitoring their adherence to the rules and, in the case
of a breach, harshly punishing them.
HOUSE ARREST IN INDIA
The notion of home arrest in India is based on regulations that allow for pre-trial
imprisonment. The National Security Act of 1980, Section 5, authorises preventative
detention.
The following is the text of Section 5: -
“Power to regulate place and conditions of detention. Every person in respect of whom a
detention order has been made shall be liable--
 to be detained in such place and under such conditions, including conditions as to

maintenance, discipline and punishment for breaches of discipline, as the appropriate
Government may, by general or special order, specify; and
49
 to be removed from one place of detention to another place of detention, whether
within the same State or in another State, by order of the appropriate Government:
Provided that no order shall be made by a State Government under clause (b) for the
removal of a person from one State to another State except with the consent of the
Government of that other State.”
JUDICIAL INTERVENTION IN CASE OF ARBITARY ARREST TO BEST SERVE

THE INTERNATIONAL STANDARD
The judiciary is crucial in safeguarding people's rights and assuring them that if wrongdoing
is committed against them, they will obtain justice. To prevent the violation of liberty, it has
interpreted and adopted a number of regulations. The judiciary has gone so far as to interpret
legislation to best serve international norms and satisfy the aims of international organisations
that India is a member of on several occasions. As a result, the researcher will highlight a few
notable cases that indicate how the judiciary is vigilant in preserving human rights and
engaging in the adoption of international norms by investigating situations of arbitrary arrest
and imprisonment.
Ever-growing Ambit of Article 21
The plain reading of Article 21 is that "No person shall be deprived of his/her life or personal
liberty except according to procedure established by law". However, with the creative judicial
interpretations, it has become an inexhaustible source of many other rights. To start with, in
A. K Gopalan v. State of Madras 128, the Supreme Court ruled that personal liberty cannot be
taken away without following the legal process. The procedure in question must be
determined completely by the legislature. The enforcement authority, like the police, must
adhere to the letter and spirit of the law.
128
AIR 1950 SC 27.
50
Almost three decades after Gopalan, the Supreme Court went a step further in Maneka
Gandhi v. Union of India129 While addressing the matter of the petitioner's passport being
impounded, the Supreme Court stated in Maneka Gandhi that the legal procedure cannot be
arbitrary, unfair, or unreasonable. Article 21's procedure must reflect reasonableness and
fairness, and the courts have the authority to adjudicate it. In the end, the Court determined
that, even though the Passport Act did not specifically require a hearing prior to the
impoundment of a passport, the obligation of such a hearing must be implicit. Furthermore,
the decision declared Article 21 to be the most sacred of fundamental rights.
This is also reflected in the statement of Krishna Iyer, J.,
"The spirit of man is at the root of Article 21".
The decision injected life and blood into the then dormant Article 21.
Between Gopalan and Maneka Gandhi, several attempts were made to expand the meaning
of 'personal liberty' under Article 21.
In Kharak Singh v. State of Uttar Pradesh', the police's visits at night involving the intrusion
into the plaintiff’s residence and knocking at door, which disturbed his sleep and comfort,
were held to be an invasion on the plaintiffs personal liberty. Thus, the plaintiffs basis human
rights were recognized and the police were asked to respect them, despite being a suspect.
This also led to the subsequent development of right to privacy- as part and parcel of
'personal liberty' under Article 21- a right, which is also available to convicts and under-trials.
The commonly resorted to telephone tapping by the police authorities is condemned by the
Supreme Court in People's Union for Oil Liberties v. Union of Inia' by saying that tapping the
telephone is a serious invasion of privacy. Such an intrusion is justifiable only for exceptional
reasons involving the interests of sovereignty and integrity of India, security of the State,
friendly relations with foreign States, public order and for preventing incitement to the
commission of an offence. The judicial trend after Maneka Gandhi is crystal clear that the
term 'personal liberty' under Article 21 means much more than liberty of body. Kartar Singh
v. State of Punjab' supplemented Maneka Gandhi by stating that the right under Article21 can
only be deprived by a procedure, which is not only established by the legislature but must
also be right, just and fair. In order to comply with the test of fairness, the principles of
natural justice must be followed by the enforcement authorities. These developments have
129
AIR 1978, SC 597.
51
seriously influenced the police's actions especially in the process of criminal justice
administration.
In the trial of criminal offenses, the right to fair and speedy trial has been recognised as one
of the constituent elements of human rights. In Hussainara Khatoon v. Home Secretary,
Bihar for, the plaintiff filed public interest litigation on behalf of the under-trials, who were
suffering in jail without trial. Justice Bhagwati observed that though the right to speedy trial
is not specifically mentioned as a fundamental right, it is implicit in the content of Article 21.
In Kadra Pahadlya v. State of Bihar", the Court commented that it is a crying shame to our
adjudicating system, which keeps people in jail for years without trial
Hussainara Khatoon v. Home Secretary, State of Bihar (1I)12 unveiled another shocking
feature of prison administration. There were several women in prison for a long time under
the banner of 'protective custody'. They were neither charged with any offence nor were their
actions under investigation; however, they were the victims of offences held for the purpose
of giving evidence. This effectively meant that they were imprisoned under the disguise of
protection. The Court directed their immediate release from prison as well as to provide
shelter in protective homes.
The judicial response towards handcuffing and the use of bar fetters is another area of
importance in human rights' protection. In Prem Shankar v. Delhi Administration",
handcuffing was held to be prima facie inhuman and unreasonable.
Therefore, the Court quashed the general rule of handcuffing every under-trial person
accused of a non-bailable offence with more than three years' prison term during transport for
trial. The handcuffing was confined to extreme circumstances, and required recording the
reasons, which should be approved by the presiding judge. Krishna Iyer, J., while conceding
that the prevention of escape of a prisoner is reasonable and in the public interest, stated that
"the insurance against escape does not compulsorily require handcuffing".
The judiciary has stated in a number of cases that an individual's right to liberty is important
and that it cannot be taken away by the state unless there is no other option. The Supreme
Court in Joginder Kumar v State of U. P130 exhibited worry about the abuse and misuse of the
state's arrest power, and gave police some rules to avoid the state's arbitrary deprivation of
130
AIR 1994 SC 1349.
52
liberty. The Court ruled that arrests should be made on a routine basis and only after
preliminary investigation. However, it is also alleging that whenever an arrest is made the
arresting officer is required to justify the arrest.131 As a result, the Court has chastised the
cops, mandating that arrests be made only when absolutely necessary and no other choice
exists. According to the court, such arrests should be undertaken solely for the stated reasons:
to ensure the person's attendance before the criminal justice system or to prevent the person
from committing more crimes, tampering with evidence, or intimidating witnesses. The Court
held that unnecessary and unjustified arrests will lead to undue harassment and will result in
the loss of faith of the citizens in the criminal justice system. 132
The next important case is D.K. Basu v. State of West Bengal 133. where the Supreme Court
takes one step further to prevent State authorities from abusing their power by laying down
comprehensive instructions on the process of making arrests and detentions and notifying that
these guidelines arise from Article 21 and 22(1) of the Constitution. Hence, it should be
strictly followed and any failure to comply with these guidelines will render the police officer
liable for departmental action as well as Contempt of Court134 The Court further stated that a
detained individual's friend, relative, or family member must be given detailed information
on the time and place of arrest, as well as the name of the arresting officer. It also stipulates
that in the officer's diary, the arresting officer must record the individual's arrest as well as the
person who is informed. To ensure that the aforesaid procedure is followed, the Court
additionally made it a duty for the Magistrate before whom the arrested individual is taken to
inquire about the police's compliance with the above regulations 135.
131
Ibid.
132
Joginder Kumar v State of U.P, (AIR 1994 SC 1349).
133
AIR 1997 SC 610.
134
Ibid.
135
AIR 1997 SC 610.
53
While in State of Madhya Pradesh v. Shobharam136 the Supreme Court has declared that
providing information to the arrested person about the grounds of his arrest is a mandatory
provision and cannot be violated in any circumstances.
The Supreme Court, on the other hand, employed judicial interpretation to try to prevent
arbitrary deprivation of liberty and came up with the concept of paying persons who were
unlawfully jailed. It further stated that if a person approaches the court to question his or her
validity of arrest and imprisonment and alleges that his or her right has been violated, the
court has the authority to award monetary damages.137
As a result, it is asserted that the law contains sufficient tools to prevent arbitrary deprivation
of liberty, but the bulk of the Indian population is unaware of these rights and safeguards,
preventing the person from obtaining a fair trial, either owing to illiteracy or poverty.
Although the Court's decision to give monetary compensation has not been demonstrated to
be a deterrence until the erring police officer is personally held accountable, not just for
departmental acts but also for some criminal charges, it is a start.
Hence, in State of Maharashtra v Ravikant S. Patil138 The Supreme Court ruled that,
“because the erring police officer acted under the guise of official duty, he was not liable to
pay compensation and ordered the State to pay compensation”, but in a subsequent case of
Arvinder Singh Bagga v State of Uttar Pradesh 139 The Supreme Court upheld its prior
verdict, ruling that the State could sue the erring police officer personally for monetary
damages.
As a result, it is obvious from several rulings that the judiciary is concerned with the
protection of the arrested person's rights as well as his or her dignity, declaring that a person's
dignity is extremely important and should be maintained in all circumstances. It should also
be noted that some international standards are already embedded in the Constitution, while
others have been incorporated as a result of the judiciary's ongoing efforts to implement
136
AIR 1996 SC 1910.
137
Bhim Singh v State of Jammu and Kashmir (AIR 1986 SC 494).
138
AIR 1951 2 SCC 373.
139
AIR 1995 SC 117.
54
international standards, and that arrest is not a rule, but rather an exception that can only be
made in the most serious of cases140.
Due to various efforts of Law Commission, NHRC, NPC, the guidelines of Supreme Court
given in Joginder Kumar and D.K Basu Case 141 have been incorporated in the CrPC by the
Code of Criminal Procedure (Amendment) Act, 2008. Despite the fact that the CrPC has been
amended to protect people from illegal deprivation of liberty through arrest and detention,
there is still abuse and misuse of the law of arrest by police. Laws can only be demonstrated
to be successful if they are correctly enforced. As a result, the Indian legal system must be
transparent in order to ensure that the law is obeyed in the Indian Criminal Justice System.
Otherwise, all of the Supreme Court's instructions, multiple Commissions' recommendations,
and modifications to the CrPC will be just another piece of legislation that won't be effective
unless the state's law enforcement agencies are made more transparent and accountable. For
example, Section 44 of the CrPC gives the Magistrate the power to check and call for a
general diary, which is frequently misunderstood and harassed by police authorities because
no entry is made in the general diary when a person is arrested, and these entries are only
made when a person has been taken to the Magistrate in order to show the Magistrate that
they are complying with these provisions, otherwise they are detained. Despite the fact that
the rights of accused under Article 22(1) and (2) are exercised with state impunity, it is
depressing to learn that neither the prescription nor the instruments have evolved to curb it,
and the current situation is that this practise has remained as reminiscent of the imperial era,
when the violator had immunity to violate the rights and no punishment was available. 142
Though India established the Protection of Human Rights Act, 1993 to safeguard its citizens'
human rights, this is a positive step toward ensuring openness and accountability in the work
of various law enforcement organisations. 143. The Act calls for commissions to be
established at the national, state, and district levels. Section 12 of the Act states that the
140
Ibid.
141
AIR 1997 SC 610.
142
B. Uma. Devi , Arrest And Detention And Criminal Justice System,( Oxford University Press, 2012).
143
National Human Right Commission of India, Annual Report 2003- 2004, p170, available at http://
nhrc.nic.in/Documents/AR/AR03-04ENG.pdf (Visited on May 25, 2014).
55
commission would investigate any complaint of a violation of human rights, as well as any
abetment or negligence on the part of a public official in the prevention of a violation of
human rights. The Commission has the authority to investigate the case either Suo moto or in
response to any complaints made by the victim or by the Court. It's a fantastic system for
quickly resolving concerns and saving money. However, there is a disadvantage in that State
Commissions are not functioning effectively since they are not watchful in situations
involving police. 144
Now a day to ensure its working effectively the National Human Right Commission is
collaborating with some of the Non-Governmental Organizations which is ‘eyes and ears of
people of India’. 145According to an Annual Report of National Human Right Commission, 146
Uttar Pradesh has the highest number of cases for the human rights violations it recommends
that in order to protect and promote the Human Rights of individual there is need to maintain,
strengthen, close and cooperative ties with the Nongovernmental Organization 147. As a result,
Section 12(i) of the Act was enacted in order to urge non-governmental organisations
(NGOs) to prevent human rights violations and raise knowledge about the Commission in
order to retain their faith in the Commission and its redressal mechanisms.
As a result, the Human Rights Commission, in partnership with a few NGOs, appears to be
doing excellently in the Indian system. It's a step in the right direction for improving the
country's administration and ensuring the Criminal Justice System's transparency and
accountability. Hence according to the researcher this collaboration of Government with
NGOS is to some extent is similar to Japanese Model of policing i.e., kobans and foot
patrols148 which is a good step taken by the government, which will also help in creating
awareness about the rights among masses.
144
Law Commission, 177th Report on Law Relating To Arrest (December, 2001)
145
Ibid.
146
National Human Right Commission of India, Annual Report 2017- 2018, p170, available at
http://nhrc.nic.in/Documents/AR/AR17-18ENG.pdf (Visited on July 25, 2021).
147
Ibid.
148
Gary T. Marxt, ‘Forces of Order: Police Behavior in Japan and the United States’ 201. (Berkeley, University
of California Press, 1976).
56
A large portion the persons deprived of their liberty consists of people who are not yet
convicted of a crime but are undertrials . a large population
CHAPTER 3
DEPRIVATION OF LIBERTY OF PERSON IN UNITED KINGDOM
Halsbury’s laws of England 149 summarises the law on the act, of arrest as follows:
"Arrest consists in the seizure or touching of a person’s body with a view to his restraint;
words may however amount to an arrest if, in the circumstances of the case, they are
calculated to bring, and do bring, to a person’s notice that he is under compulsion and he
thereafter submits to the compulsion".
Arrest is a legal deprivation of liberty, a restriction on one's personal liberty. In its most basic
meaning, arrest distinguishes between a scenario in which a person is free to travel wherever
he wants and one in which he has been informed that he is being held in prison. In the case of
R v. Brown150 where two police officers detained a person who fled from them, whereby
arousing their suspicion, Shaw L.J. said, the officers concerned reacted to what they regarded
as suspicious conduct by imprisoning him for so long as might be necessary to conform, their
general suspicions or to show them to be unfounded. They may then arrest him on a specific
charge in the first case, but they would be obligated to release him in the second case. They
may have made themselves responsible for trespass and false imprisonment damages in any
situation. 151
Arrest can be either done with a warrant issued by a magistrate or without a warrant.
149
Fourth Edition Volume-II para 99.
150
(1978) 64 Cr.App.R.231.
151
(1978) 64 Cr.App.R.234.
57
1.warrantless arrest
The most significant general powers of without warrant are enumerated in Section 24 of The
Police and Evidence Act,1872 which states:
Section 24 of the police and evidence act illustrates the general powers of arrest without
warrant
"(1) The powers of summary arrest conferred by the following subsections shall apply to
offences for which the sentence is fixed by law or for which a person (not previously
convicted) may under or by virtue of any enactment be sentenced to imprisonment for a term
of five years, and to attempts to commit any such offence and in this Act, including any
amendment made by this Act in any other enactment, ' arrestable offence' means any such
offence or attempt.
2) Any person may arrest without warrant anyone who is, or whom he, with reasonable cause
suspects to be, in the act of committing an arrestable offence.
(3) Where an arrestable offence has been committed, any person may arrest without warrant
anyone who is, or whom he, with reasonable cause, suspects to be, guilty of the offence.
(4) Where a constable, with reasonable cause, suspects that an arrestable offence has been
committed, he may arrest without warrant any one whom he with reasonable cause, suspects
to be guilty of the Offence.
(5) A constable may arrest without warrant any person who is, or whom he, with reasonable
cause, suspects to be, about to commit an arrestable offence.
(6) For the purpose of arresting a person under any power conferred by this section a
constable may enter (if need be, by force) and search any place where that person is or where
the constable, with reasonable cause, suspects him to be.
(7) This section shall not affect the operation of any enactment restricting the institution of
proceedings for an offence, nor prejudice any power of arrest conferred by law apart from
this section.”
The definition of "arrestable offence" in subsection (l) convers most, but not all, serious
offences including, for example, murder, wounding, theft, arson and other offences of
criminal damage some serious offences not covered by this definition carry specific powers
58
of arrest.152 but other such as indecent assault on a woman ( under s.14 of the Sexual
Offences Act 1956) do not carry any power of arrest without warrant. It, should be noted that
the powers conferred on a constable by subsections (4) and (5) are wider than the powers
conferred, by subsections (2) and (3), on "any person" (which means either a constable or a
private citizen). Under the latter provisions a citizen may arrest a person only if that person is
in the act of committing an arrestable offence or, in effect, only where an arrestable offence
has clearly been committed. Subsection (7) preserves powers of arrest contained in other
statutes and common law powers of arrest. The only common law power of arrest remaining
is where a breach of the...... peace. has been committed (or is reasonably Apprehended) and
there are reasonable grounds for apprehending it? continuance or immediate renewal.
Further powers of arrest are available in respect of certain offence against children or young
person specified in Schedule l to the Children and Young Persons Act,1933. By subsection 13
(l) of that Act a constable may arrest without warrant:
(a) if the constable does not know and cannot determine the identity and address of any
person who, in his opinion, commits any of the acts listed in Schedule 1 to the Act.
(b) any person who committed or has cause to suspect has committed any of the offences
listed in Schedule 1 if the constable has reasonable grounds to fear he may abscond or does
not know and cannot determine his identity and address.
Some of the offences listed in Schedule 1 of the 1933 Act, including as murder and
manslaughter of a person under s.17, are indictable under s.2 of the Criminal Law Act 1967.
The powers under s.2 of the 1967 Act are presumably available in respect of such offences.
But the limited power of arrest in subsection 13 (l) of the 1933 Act may be contrasted with
the additional power to detain under subsection 13(2) of the Act.
Many statutory provisions also expressly confer powers of arrest without warrant for
particular offences even though their maximum penalty is less than the Criminal Law Act
standard of five years' imprisonment. Some of than confer powers of arrest on persons other
than or in addition to, the police, for example the powers of arrest under s.5 of the Sexual
Offences Act 1967, s.11 of the Prevention of Offences Act 1951, and Section 2 of the
Coinage. Offences Act 1936 are exercisable by anyone, not only a police officer. In other
152
For example, fire-arms offences carrying an offensive weapon, and going equipped for theft or burglary.
59
cases, powers of arrest' are conferred on particular persons, for example, an Immigration
officer (Immigration Act 1971, Schedule 2) or a customs officer (Customs and Excise Act
1952, s.274). As the list shows, the provisions vary considerably. Some apply only where a
person is seen or found committing the offence specified, others where there is reasonable
suspicion that the relevant offence is being or has been committed. A number of powers of
arrest may be exercised only if the name and address of the suspected offender cannot be
ascertained to the satisfaction of the police officer. In some of these cases the power of arrest
is also (or alternative! linked to suspicion that the person may abscond.
The other statutes giving power to arrest without i warrant are: the Bail Act 1976 s.7(3) (a)
(person released on bail who appears unlikely to surrender to custody-arrest by a constable)
the Prison Act 195 2, s.49(l) (a person lawfully committed to detention who is unlawfully at
large-arrest by a constable);
the Street Offences Act 1959 section 1(3) (a) A policeman arrests a common prostitute
lurking or soliciting in a public area for the purpose of prostitution.); the Theft Act 1968
section 12(3) (taking a motor vehicle etc. without authority is to be treated as an arrestable
offence) t the Road Traffic Act 1972 section. 164(2) (reckless or careless driving arrest by a
constable unless the driver gives his name and address or produces his licence). It is an
offence for a driver not to stop when a uniformed constable requires him to do so. The
powers of a constable of the Metropolitan Police to stop, search and detain a person on
suspicion of having stolen or unlawfully detained goods under section 66 of The
Metropolitan Police Act 1839 whether or not it amounts technically to an arrest 153 must be
exercised subject to the common law on arrest, detention etc.154
Powers of summary arrest given by statute are strictly construed. In R v. Roff155 for instance
the power to arrest a person “committing” a drunken driving offence (Road Traffic Act 1972
section 5) means that the arrest must be contemporaneous with the offence or immediately
afterwards. A power to arrest on suspicion of something requires the suspicion to be
153
R v. Brown (1978) 64 Cr.App.R. 231.
154
Daniel v. Morrison (1979) 70 Cr.App.R. 142.
155
(1976) R.T.R.7.
60
reasonable and the reasonableness of the suspicion to be judged objectively in all the
circumstances as a question of fact.156
Section 5l(l) of The Betting, Gaming and Lotteries Act 1963 gives a constable, executing a
search warrant issued in respect of premises where it is suspected that an offence under the
Act is being committed, the power to arrest persons found there.
Arrest by private citizen

Any individual may arrest another person who is doing an arrestable offence or who he thinks
is committing one with good cause.157
Where an arrestable offence has been committed, any person who is or whom he thinks with
probable grounds to be guilty of such offence may be arrested.158
"Any person," of course, includes a policeman. The important distinction, however, between
the individual's power to arrest and the policeman's is that an offence must in fact have been
committed for arrest by an individual to be lawful. This is based on the common law. 159
When a private citizen makes an arrest, he has the option of taking the apprehended
individual before a magistrate or handing him over to the police as soon as practically
possible.
ARREST BY POLICE CONSTABLES

Additionally, a police constable may arrest without a warrant according to section 2(4) of
Criminal law act,1967:
156
King v. Gardner (1980) 71 Cr.App.R. 13.
157
Section 2(2) of Criminal Law Act, 1967.
158
Ibid
159
Walters v. W.H. Smith & Son (1914) 1 K.B.595.
61
(a) “Where he suspects with reasonable cause that an arrestable offence has been
committed anyone whom he suspects, with reasonable cause, to be guilty of it.160
(b) any person who is, or when he suspects with reasonable cause to be, about to commit
an arrestable offence161, A policeman may, therefore, arrest without warrant where an
arrestable offence has not in fact been committed, provided he reasonably suspects it
has been or is about to be committed.”
ARREST WITH WARRANT
Several statutory provisions162 gives power to magistrates to release warrants of arrest for
offence. The most frequently used provision is section 1 of Magistrate's Courts Act 1952,
subsection (l) of that section provides in part, that: "Upon an information being laid before a
justice of the peace for any county that any person has, or is suspected of having, committed
any offence the justice may issue a warrant to arrest that person and bring him before a
magistrates' court provided that the justice shall not issue a warrant unless the information is
in writing and substantiated on oath".
A limitation has since been added by subsection 24(l) of The Criminal Justice Act 1967,
which provides that:
The person who has not yet attained the age of seventeen cannot be arrested by the warrant
that is issued under the magistrate court act 1952, section 1 Unless the crime for which the
warrant was issued is heinous and punishable by imprisonment, or the defendant's residence
cannot be determined in order to serve him with a summons.
This provision has three intentions:
First, that where a person is alleged to have committed a minor offence the normal procedure
for bringing him before a court should be by summons, rather than by arrest;
160
Section 2(4) of Criminal Law Act, 1967.
161
Ibid Section 2(5)
162
Including the Magistrate's Courts Act, 1952, S.77 Extradition Act 1870 S.8 and Fugitive Offenders Act, 1967
S.6.
62
Second that, in general, offences which are not punishable by imprisonment should not attract
arrest, which is “the beginning of imprisonment”, but third, that an arrest can be justified
where the summons procedure will not be effective in bringing an alleged offender before the
courts.163
Where there is power to issue a warrant, the procedure is for a police officer (for any other
person) to “lay an information” before a magistrate. The decision whether or not to issue a
warrant is then a matter for the discretion of the magistrate. This discretion is not reviewable.
If the magistrate decides that it is proper to issue a warrant, he must then further consider
whether or not to endorse it for bail. If the warrant is so endorsed, the police are required to
release the accused (subject to any conditions of bail stated in the endorsement) to appear
before a magistrate’s court as specified in the endorsement. If the warrant does not authorise
the police to release the accused on bail, then he must be brought before the magistrate’s
court named in the warrant immediately. The provisions of issuance of warrant are limited by
the Magistrates' Courts & act 1980.
They can only be issued in the following cases:
(a) “where the offence is indictable or punishable with imprisonment; or
(b) where the accused's address is not sufficiently established for summons to be served on
him”164;
Where the summons has been issued in respect of the summary offence and –
1) the information for the instance of the day the summon was substantiated on oath, and
the accused has not appeared in answer to the summons, and
2) It has been shown that the accused was served with the summons 165, and that either
the act to which the warrant relates is punished by imprisonment, or that the court,
having found the accused guilty, intends to impose a restriction on him. 166
163
See O'Brien v. Brabner (1885) 49JPN 227.
164
Magistrate’s Court Act, 1980 S.1(4).
165
Magistrate’s Court Act,1980, S.13(2).
166
Ibid S.13 (3).
63
Even if a summons has already been issued, a warrant of arrest may be issued for an
indictable offence. 167 If the accused fails to show up in court to answer the charge, the judge
may issue a "bench warrant" based on an arrest warrant issued by the magistrate in the
territory where the accused resides, or where he is suspected to be or dwell. 168
Requirement relating to arrest to safeguard liberty of persons
The mode of effecting arrest is not prescribed by a statute, but the courts have laid down
certain requirements. Halsbury’s laws of England summarise the law on the act of arrest as
follows:
“Arrest consists in the seizure or touching of a person’s body with a view to his restraint;
words may however amount to an arrest if, in the circumstances of the case, they are
calculated to bring, and do bring, to a person’s notice that he is under compulsion and he
thereafter submits to the compulsion”.
In Anderson v. Booth (1969).169 lord Parker C.J. said:
“There are a number of cases both ancient and modern, as to what constitutes an arrest,
and, whereas there was a time when it was held that there could be no lawful arrest unless
there was an actual seizing or touching, it is quite clear that that is no longer the law.
There may be an arrest by mere words, by saying ‘I arrest you’ without any touching,
provided, of course, that the defendant submits and goes with the police officer. Equally it
is clear, as it seems to me, that an arrest is constituted when any form of words is used
which in the circumstances of the case were calculated to bring to the defendant’s notice,
and did bring to the defendant's notice, that he was under compulsion and thereafter he
submitted to that compulsion.” 170
167
Ibid S.1 (6).
168
Ibid S.1 (2) (c).
169
(1969) 2 Q.B.216.
170
Id at p.220.
64
An arresting officer must therefore, make it clear to the person arrested, either by action or
words, that he is under arrest and ensure that he is aware of the ground of the arrest. In the
leading case of Christie v. Leachinsky (1947)171,viscount set out:
1) “If a policeman arrests without warrant upon reasonable suspicion of felony, or of

other crime of a sort, which does not require a warrant, he must in ordinary
circumstances inform the person arrested of the true ground of arrest. He is not
entitled to keep the reason to himself or to give a reason which is not the true reason.
In other words, a citizen is entitled to know on what charge or on suspicion of what
crime he is seized.
2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from
certain exceptions, is liable for false imprisonment.
3) The requirement that the person arrested should be informed of the reason why he is
detained.
4) The requirement that he should be so informed does not mean that technical or
precise language need be used. The matter is a matter of substance, and turns on the
elementary proposition that in this country a person is prima-facie entitled to his
freedom and is only required to submit to restrains upon him if he knows in substance
the reason why it is claimed that this restrain should be imposed.
5) The person arrested cannot complain that he has not been supplied with the above
information as and when he should be, if he himself produces the situation which
makes it practically- impossible to inform him, e.g. by immediate counter attack or
by running away.”172
USE OF FORCE
171
(1947) A.C.573.
172
Id at p.587-588.
65
In case arrest is resisted, force may have to be used. It has long been the law that in making
an arrest a police officer is entitled to use force, but the use of force is judged on an objective
basis173 and it must be in proportion to any force offered by the person to be arrested. 174The
common law principle is now contained in sub section 3 (l) of the Criminal Law Act 196?
which reads as under:
“A person may use such force as is reasonable in the circumstances effecting or

assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully
at large.”
The subsection applies both to arrest under warrant and to arrest without warrant.
In exceptional cases, in order to restrain an arrested person, it may be necessary to use

handcuffs. On this the Hone Office has issued the following guidance to Chief Officers of
Police:
“Whether a prisoner should be handcuffed must depend on the particular

circumstances as for instance the nature of the charge and the conduct and temper of the
person in custody. Handcuffing should not be resorted to unless there is fair ground for
supposing that violence may be used or an escape attempted. Handcuffing cannot be
justified unless there are good special reasons for resorting to it". 175
Where the police act in execution of a magistrate's warrant they are protected under the
Constable Protection Act 1750 from a successful civil action. This does not apply to an action
in respect of the manner of execution of a warrant where this is unlawful.
173
R v. Barrell (1980) Crim.L.R.641.
174
Allen v. Metropolitan commissioner (1980) Crim.L.R. 441.
175
Consolidated Circular to the police in Crime and Kindred Matters,1977 Edn.para 4.65.
66
OBJECT OF ARREST
The ultimate goal of an arrest is to bring a person who has committed or is reasonably
suspected of committing a criminal offence before a court for trial. But because arrest
deprives the citizen of his liberty its use is to be restricted generally to offences that carry the
penalty of imprisonment (there are some exceptions in the case of Offences of causing a
public nuisance, for example being drunk and incapable) and to persons against whom the
summons procedure will not be effective. Arrest can also be used to stop or stop someone
from committing a crime. The general authority to detain someone without a warrant is
further limited to more serious offences. The duration of custody after arrest can be utilised
for a variety of purposes, and the power of arrest is linked to these as well. Indeed, the
following terms are the purposes for which current arrest powers are employed in practise. It
could be used to prevent the suspect from destroying evidence, interfering with witnesses, or
warning uninvolved accomplices. It may be used to prevent a repeat of the offence,
particularly but not primarily in the case of violent offences. Finally, having reasonable
grounds for suspicion sufficient to warrant an arrest is not always sufficient to warrant a
charge: hearsay evidence, for example, may be adequate grounds for reasonable suspicion but
not for a charge because it will not be accepted as evidence at trial. As a result, the detention
period might be used to dispel or confirm that reasonable suspicion by questioning the
suspect or obtaining additional material evidence with his help.
Extent of powers of police to detain a person

Where a private citizen effects an arrest, he must either take the arrested person before a
magistrate or hand him over to the police as soon as reasonably practicable without
unreasonable delay. 176
Where a constable arrests. a person without a warrant he must bring the arrested person
before a magistrate's court as soon as practicable. 177
The Divisional court in Re. Shermann and Apps178, considering these words in police custody
up to that time for three days without being charged or brought before a magistrate:
176
Archbold,40th Edition para 2806.
177
Magistrate’s Court Act, 1980 Section 43(4).
178
Re. Sharmann and Apps, (1981) 2 All.E.R.612.
67
Practicability is a somewhat traditional term that must take into account the availability of
police officers, transportation, and magistrates' courts. It must also account for any inevitable
delays in acquiring adequate evidence on which to make a charge, although this consideration
must be weighed against the police's ability to release suspects on bail with a condition that
they return to the scene. Any such release may involve a risk that the arrested person will
abscond, commit further crimes or interfere with witnesses, but that risk has to be balanced
against the vital consideration that no man is to be deprived of his liberty save in accordance
with the law.179
The general concept of police custody is that officers cannot force somebody to travel to or
stay at a police station against their choice unless they are arrested. This does not stop a
person from voluntarily choosing or agreeing to visit a police station. However, if the person
changes his mind, he has the legal right to leave the police station. The courts have ruled that
if he tries to do so and is stopped, he is considered to be under arrest; however, if he is not
informed that he is under arrest, he is not considered to be under arrest and is free to leave the
police station with reasonable force. 180
The courts have held that powers of arrest may be exercised only were. The requisite grounds
of suspicion already exist, and not for the purpose of establishing such grounds.
In R. v. Lemsatef .181 (a case involving custom officers) Lord Justice Lawton stressed this
point. It must be noted that neither customs agents nor law enforcement officers have the
authority to hold someone in order to get their cooperation in their investigations. 182
In R. v. Houghton and Franchiosy. 183 the Court of Appeal again in the person of Lawton L.J.
reiterated the point:
In the clearest possible terms, the court stated that police officers can only make arrests for
crimes. If they assume there is a difference between detaining and arresting, they are
mistaken. They have no power to hold someone for the purpose of investigation unless the
179
Ibid.
180
R. v. Inwood (1973) 2 ALL.E.R.645
181
(1977) All.E.R. 835.
182
Ibid.
183
(1978) 68 Cr.App.R. 197.
68
Prevention of Terrorism (Temporary Provisions) Act of 1976 applies. (Perhaps the police
should have powers to acquire information for investigations in instances like these; they
don't have them now, and Parliament will have to determine whether they should have them
later.).184
In short, save for the special case of the prevention of terrorism legislation, no one may be
arrested solely in order to enable the police to question him.
When a person is arrested and taken to the police station, the station officer must inquire as to
whether the arrest was warranted. If it isn't, the individual should be let go. If the police
officers involved do not have the authority to make an arrest (for example, because there are
inadequate grounds of suspicion), they may be held accountable for damages for false
imprisonment in a subsequent lawsuit.
During the period of detention, a writ of habeas corpus may be made on the person’s
behalf. 185
The amount of time a person can be held in police custody is limited. If a person is arrested
on a tinder warrant for a criminal offence, they must appear before the court issuing the
warrant (unless the warrant is endorsed for bail).
There are five possible outcomes in the instance of a person arrested without a warrant. For
starters, he may be. If the authorities uncover evidence that exonerates the suspect or
determine that there is insufficient evidence to justify his prosecution after making the arrest,
he will be freed without charge. Second, he might be released, with the possibility of
prosecution still being considered (the intention being, if he is prosecuted, that this will be by
way of summons). Third, he may be released on bail to attend at a specified police station if
the inquiries into the offence cannot be completed forthwith. Fourth, he may be released on
bail to appear before a magistrate's court. Fifth, he may be retained in custody and brought
before a magistrates' court as soon as practicable. In the case of a juvenile retained in custody
the requirement is to bring him before the court within 72 hours.186
184
Ibid.
185
Under Supervisory jurisdiction of High Court.
186
Children and Young Persons Act, 1969 S.29(3).
69
Subsection 13(2) of the Children and Young Persons Act, 1933, grants an additional power to
detain in custody. Unless his release would tend to undermine the interests of justice or create
inquiry or danger to the child or young person against whom the offence is claimed, a person
detained for an offence listed in Schedule 1 of that Act shall be released on bail. The offences
mentioned in Schedule 1 to the 1933 Act include murder and manslaughter of a child or
young person and various sexual offences and offences of violence committed against a child
or young person.
Where a constable has a power to arrest a person for an offence involving drunkenness, he
may take him to treatment centre for alcoholics instead of the police station if there is such a
centre available. 187 The offender cannot be compelled to stay there but it is deemed to be,
lawful custody; it does not preclude a charge and prosecution.
The procedure for police ball and the retention of an arrested person in custody are regulated
by s.38 of the Magistrates' Courts Act 1952 as amended by the Bail Act, 1976. 188
187
Criminal Justice Act, 1972,S, 34.
188
“ (1) On a person being taken into custody for any offence without a warrantee police officer not below the
rank of inspector, or the police officer in charge of the police station to which the person is brought, may, and if
it will not be practicable to bring him before a magistrates' court within 24 hours after his being taken into
custody, shall, inquire into the case and, unless the offence appears to the officer to be a serious one, grant him
bail in accordance with the Bail Act, 1976 subject to a duty to appear before a magistrates’ court at such time
and place as the officer appoints.
(1A) Where a person has been granted bail under subsection (1) above, the magistrates’ court before which he is
to appear may appoint a later time as the time at which he is to appear and may enlarge the recognizances of any
sureties for him to that time.
(2) Where, on a person's being taken into custody for an offence without a warrant, it appears to any such officer
as aforesaid that the inquiry into the case cannot be completed forthwith, he may grant him bail In accordance
with the Bail Act 1976 subject to a duty to appear at such a police station and at such a time as the officer
appoints, unless he previously receives a notice in writing from the officer in charge of that police station that
his attendance is not required; and the recognizance of any surety for that person may be enforced as if it were
conditioned for the appearance of that person before a magistrates’ court for the petty sessions area in which the
police station named in the recognizance is situated.
(3) (repealed).
70
where a person is not bailed or otherwise released and is retained in custody, subsection (4)
requires him to be brought before a court as soon as practicable. Subsection (l) and (4) taken
together distinguish between serious and less serious cases. 189 in both types of case the police
must bring the arrested man before a magistrates’ court " as soon as practicable” but in the
latter they are subject to the additional requirement that they must release the man on bail if it
will not be practicable to bring him before a court within 24 hours.190 There is, however, no
definition of the terms “serious offence” or “as soon as practicable” and no reference to the
proper reasons for not releasing the arrested person.
Legal system in US
United States constitution on deprivation of liberty
The primary duty of law enforcement is to identify crime, capture criminals, and investigate
the crime in order to gather evidence against lawbreakers so that they may be dealt with by
the courts in accordance with the law. In criminal trials, proof beyond a reasonable doubt is
required to convict and sentence the criminal defendant for the alleged crimes. The law
enforcement also has the responsibility of preventing potential crimes in order to avoid harm
to individuals or society as a whole. When the police are enforcing their functions of crime
detection and prevention, they regularly come with people who are unwilling to cooperate.
They must comply with the requirements of the "due process" clause and the provisions of
the Fourth Amendment of the American Constitution in order to achieve this goal.
The following is the text of the Fourth Amendment:
“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
(4) Where a person is taken into custody for an offence without a warrant and is retained in custody, he shall be
brought before a magistrates’ court as soon as practicable".
189
Ibid.
190
Ibid.
71
upon probable cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.”
The Fourth Amendment's language refers to the right of the people, not one person, as the
Fifth Amendment does, or to an accused person as the Sixth Amendment does, or to a home
owner as the Third Amendment does. Rather than focusing on finding a remedy for merely
those who have personally suffered, the courts must address the problem of regulating and
controlling police conduct so that Fourth Amendment violations do not arise.
The fourth amendment also does not specify about the remedies available to a person whose
rights have been violated.
Vth amendment
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces,
or in the Militia, when in actual service in time of War or public danger; nor shall any person
be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall private property be taken for public
use, without just compensation.”
The fifth amendment language refers to the right of people not to be deprived of the life,
liberty and property without the due process of law
Amendment VI
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by
an impartial jury of the State and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favour, and to have the Assistance of Counsel for his
defence.”
72
International obligation on USA on deprivation of liberty
American convention on human rights
Article 7 of the American Convention on Human Rights provides, inter alia, that:
 “Every person has the right to personal liberty and security.

 No one shall be deprived of his physical liberty except for the reasons and under the
conditions established beforehand by the constitution of the State Party concerned or
by a law established pursuant thereto.
 No one shall be subject to arbitrary arrest or imprisonment.”
DEPRIVATION OF LIBERTY UNDER THE STATUTE
Chapter 9 of the Model Code of Criminal Proceedure MCCP deals with the arrest and
detention of an individual. A person can either be arrested with or without warrant.
Article 169 states the Right to Presumption of Liberty and Freedom from arbitrary arrest or
detention.
1. “No person may be subjected to arbitrary arrest and detention.

2. No person may be deprived of his or her liberty except on such grounds in accordance
with such procedure as prescribed by the applicable law.”
ARREST WITHOUT WARRANT
73
In Chimel v. California191 it has been held that getting a warrant is the rule but there are
certain exceptions to this requirement where the searches and seizures can be done without a
warrant. The exception is a search conducted incident to an arrest which may be justified on
two grounds:
(l) to protect the officer’s life by allowing a search for possible weapons the suspect may use
to resist arrest and
(2) to prevent destruction of evidence by the suspect.192
The other exception extends to cases of “hot pursuits” As depicted in warden v. Hayden193 ,
when the police are chasing a suspect and he enters into a building, they are not compelled to
risk losing him by having to go back to the court-house to get a warrant but the test in such
circumstances is emergent situation.
“The fourth exception is where the evidence is likely to be removed out of jurisdiction of the
court. It covers automobile and other movable objects searches 10 and seizures.
Article 170 of Model Code of Criminal Procedure (MCCP) illustrates when a person
can be arrested without warrant
1. “The police may arrest a person without a warrant where;

(a) He or she is found in the act of committing a criminal offence;
(b) The police are on hot pursuit of a person immediately after the commission
of the criminal offence;
(c) Probable cause exist that a person has committed a criminal offence and
that there is likelihood that before the arrant could eb obtained the subject
will flee or destroy, hide, taint, or falsify evidence of a criminal offence, or
pressure, manipulate, or otherwise influence a witness, a victim, or an
accomplice; or
(d) Probable cause exist that a suspect has violated one of the restrictive
measures imposed on him or her under 184.
191
395 U.S.752 (1969).
192
See also Cupp v. murphy 412 U.S.292 (1973).
193
387 U.S.294 (1967)
74
1. Where the police arrest a person without a warrant, they must orally notify the
prosecutor immediately.
2. In addition, the police must also, without undue delay, submit a report of the arrest
to the prosecutor. The report must detail the circumstance in which the arrest was
made.
3. Where the prosecutor establishes that:
(a) He or she will not file a motion for detention; or
(b) He or she will not initiate or continue an investigation the prosecutor must
order that the arrested person be released.
4. A person arrested without a warrant under article 170 must be brought before the
court promptly and no later than seventy-two hours after the arrest to determine
the issue of detention under article 175.”
Article 170 outlines the conditions in which a person may be detained without a warrant.
The first scenario is when someone is apprehended while committing a crime. It is generally
commonly recognized that if a person is caught in the act of committing a criminal offence,
he or she will be arrested. The "hot chase" is the second legal ground for a warrantless arrest.
This implies that if a police officer is pursuing someone suspected of committing a crime, the
officer may arrest them without a warrant. When law enforcement has probable reason to
believe that a person has committed a crime, but the person escapes or interferes with the
evidence of the victim, witness, or accomplice before the warrant can be executed, the
individual is arrested without a warrant. When a warrantless arrest is made, the police must
immediately notify the prosecutor and file an arrest report with the prosecutor, detailing the
precise circumstances behind the arrest.
As a result, the prosecution must now choose between filing a petition for detention and
continuing the investigation while releasing the accused individual. A person detained
without a warrant under Article 170 shall be brought before the court within 72 hours.
The article provides the authority that allows police officers to make arrests without a
warrant. If an officer has probable grounds to suspect that the person to be arrested has
committed a crime, or has committed a misdemeanour or petty misdemeanour in his
presence, the officer may take them into custody. As a result, the Code accepts the long-
standing and nearly universal criterion for arrest without a warrant. In instances of need, the
75
section deviates from the customary threshold by allowing an arrest without a warrant for a
misdemeanour not committed in the officer's presence.
Article 171: arrest under warrant
1) “The article provides that an arrest cannot be made without warrant except as
otherwise provided for in article 170, a warrant is required for all other purpose to
arrest a person.
2) The prosecutor may make an application for an arrest warrant where:
(a) Probable cause exists that the person has committed a criminal offence;
(b) Reasonable grounds for detention under article 177(2) exist.
3) the application for an arrest warrant must contain the following:
(a) The name of the suspect and any other identifying information, including the
location of the suspect, if known;
(b) A summary of the facts that a alleged to constitute a criminal offence and a
specific reference to the criminal offence for which the arrest of the suspect is
sought, including to the relevance to the relevant legal provisions; and
(c) A request to the competent judge to issue arrest warrant.
4) Where the requirement oof paragraph 2 are met, the competent judge may issue an
arrest warrant.
5) The arrest warrant must contain the following;
(a) The name of the suspect and any other identifying information, including the
location of the suspect, if known;
(b) A summary of the fact that the alleged to constitute a criminal offence and a
specific reference to the criminal offence for which the arrest of the suspect is
sought, including a reference to the relevant legal provisions;
(c) The authority authorized to execute the arrest warrant;
(d) The date of the arrest warrant; and
(e) The signature of the competent judge.
6) A person arrested under a warrant must be brought before the court promptly and no
later than seventy-two hours after the arrest to determine the issue of the detention
under article 175.”
76
An arrest is an obvious interference with a person’s right to liberty, yet it can also be
necessary measure in criminal proceedings. As defined in article 169, the arrest must be both
nonarbitrary and lawful. Under the MCCP, an arrest is lawful only where a warrant is
obtained or where the grounds for the arrest without a warrant is defined in article 170 (1) are
present. In some legal system, when a person is arrested, it is taken to mean that he or she is
both apprehended and taken into police custody whereas in some legal system, the term is
taken to mean only apprehension.
Article 172 states the Procedure upon arrest
1. “When the person is arrested pursuant to an arrest warrant under article 172, the
police must give the arrested person a copy of the arrest warrant.
2. At the time of the arrest, the police must orally inform the arrested person in a
language he or she understands of
a. The reasons for his arrest
b. His or her right to remain silent: and
c. His or her right to notify family member
3. An arrested person may also be informed orally or and in writing, in a language that
he or she understands that he or she has a right to:
a. Silence and not to incriminate himself, and to be cautioned that any statement
they make may be recorded and used in evidence;
b. Legal assistance of the arrested persons choice or if they qualify for it, the
right to be provided with free legal assistance in accordance with article 67 or
68;
c. Contact council and communicate with him freely and confidentially;
d. The presence of counsel during all questioning by police;
e. Notify or require the police to notify a family member or another appropriate
person of his or her choice about the arrest, place of detention and any transfer
of detention;
f. Be brought promptly before a judge no later than 72 hours after arrest in order
for the judge to assess the legality of the arrest;
g. Contact and communicate orally or in writing the liaison office, consular post ,
or the diplomatic mission of the state of which he or she is the nation, if the
77
suspect is a foreign national, or with the representation of the competent
international organization, if he or she is a refugee or is otherwise under the
protection of intergovernmental organization;
h. Petition the court for release from any unlawful arrest or detention by filing
the motion of habeas corpus under chapter 16 of MCCP;
i. The assistance of the interpreter, free of cost, if the arrested person cannot
speak the language being used for questioning, and such translations are
necessary to meet requirement of fairness; and
j. Access to a doctor, including the right to be examined if the arrested so
wishes. If no doctor is available, the arrested person has the right to be
examines by a nurse or another medical professional.
4. No later than six hours after the arrest, an arrested person must be given the written
record specifying the reasons for the arrest and providing details of his or her rights.
5. Upon being given a record of his or her rights, the arrested person must be asked by
the police to sign the record acknowledging receipt of this record. Where the person
refusing to sign the record, this must be noted in the record as well as the reason for
the refusal to sign the record. An arrested person must be given written notification of
the charges leveled against him or her
6. The arrested person must be registered by to police in accordance with the model
detention act and the other procedure set out in the model detention act.”
Arrest by private citizen
Citizens' roles are limited to providing private information and assisting law enforcement
agencies when needed.
78
Even if rapid assistance by law enforcement officials was not always available, personal
engagement remained discouraged.
The need to encourage individuals to engage in justifiable intervention developed as a result

of the rise in crime in the 1960s, which prompted a shift in legislative policy.
The Model Penal Code of the American Law Institute serves as a template for many states to
model their laws after. These states created criteria for citizen arrest that were similar to the
authority of peace officers but imposed reasonable extra limits on individuals.
A private person can make an arrest if he has reasonable reasons to think a crime has been
committed, even if he is not present, and for a misdemeanour committed in his view or
presence, barring a violation of a municipal law. In most states, an arrest for a crime or any
other public offence committed in his presence is permissible.
use of force
For effecting an arrest with a warrant or without a warrant some force might be used by the
law enforcement officer. How much force might be used to provisions of the ALI Model
Code of Procedure are explanatory.
A law enforcement officer who is authorised to conduct an arrest may use as much force as is
reasonably required to achieve the arrest, enter premises to effect the arrest, or prevent an
apprehended person from escaping from custody.
Only if all of these conditions are met, the officer may use deadly force.
“(a) the arrest is for a felony; and
(b) the officer reasonably believes that the force employed creates no substantial risk to
innocent persons, And
(c) the officer reasonably believes that
(i) the crime for which the arrest is made involved conduct including the use or threatened
use of deadly force or
(ii) there is a substantial risk that the person to be arrested will cause death or serious, bodily
harm if his apprehension is delayed.”
79
Right to be Informed the Grounds of Arrest
When a person is deprived of his liberty on the basis of an arrest warrant issued under Article
172, the police must provide a copy of the warrant to the arrested person. The police must
orally tell the arrested individual in a language he or she understands at the moment of the
arrest. his or her right to remain quiet, as well as the reasons for his or her arrest and the right
to inform a family member
“Anyone who is held should be informed of the reasons for his imprisonment and shall be
immediately told of the charge or charges against him,” according to Article 7(4) of the
American Convention on Human Rights.
Right to Get Legal Assistance

An arrested individual may also be told verbally or in writing, in a language he or she
understands, that he or she has the right to stay silent and not to incriminate himself, and that
any statement they make may be recorded and used as evidence;
Legal aid
The right to get legal aid of the arrested person's choosing or, if they qualify, free legal
assistance in line with article 67 or 68; Contact the council and talk freely and privately with
him; Having a lawyer present at all times when the law enforcement officers are interrogating
anyone; Inform or demand the police to notify a family member or another appropriate
individual of his or her choice of the arrest, custody location, and any detention transfers;
Right to be produced before the magistrate in 72 hours

Be taken before a judge within 72 hours after being arrested so that the judge can examine the
legitimacy of the arrest; If the suspect is a foreign national, contact and communicate orally
or in writing with the liaison office, consular post, or diplomatic mission of the country of
which he or she is a citizen, or with the representation of the competent international
organization if the suspect is a refugee or otherwise under the protection of an international
organization. By filing a plea of habeas corpus under Chapter 16 of the MCCP, one can ask
the court to release an individual from any wrongful arrest or imprisonment.
Right to medical personnel

Access to a doctor, as well as the option of being examined if the arrested person so desires.
80
The arrested individual has the right to be examined by a nurse or another medical expert if
no doctor is available.
JUDICIAL DECISIONS
In Carroll v. United States 267 U.S.132 (1925) the Supreme Court ruled that motor vehicles,
because they are susceptible to speedy disappearance, are distinguishable from another
evidentiary context. The police officer can search on the spot such motor vehicles if he has a
probable cause.
Fifth exception operates when a police officer comes across any evidence of crime
accidentally while executing a search warrant, he may seize what he finds in plain sight. He is
not bound to close his eyes 11 from the evidence of crime which is lying before him.
Sixth exception is carved out for the searches which may still be lawfully carried out without
a warrant even if they are not covered under the above exceptions, so long as the probable
cause exists. The test is not whether the police officer had adequate opportunity to produce a
warrant, but where the search itself was reasonable in the light of all the circumstances. This
shift of the requirement from, the reasonableness of the opportunity to get a warrant to the
reasonableness of the search per se constitutes one of the major threads running through the
interpretation of Fourth Amendment.
The exclusionary rule
Evidence must be collected in a reasonable manner, and warrants must be issued only if
probable cause has been proven, according to the Fourth Amendment. After the amendment
was ratified, such restrictions became effective against the federal or national governments.
However, these constitutional requirements included in the Amendments have recently been
declared equally relevant to the States as a result of a recent development.
But these constitutional requirements included in the Amendments have recently been
declared equally relevant to the States as a result of a recent development. The Fourteenth
Amendment's due process provision did not include the Fourth Amendment until the 18th
81
Court's ruling in Wolf v. Colorado194 Because the Fourth Amendment does not include a
method for ensuring law enforcement officials' compliance.
In " weeks v. United States195," the Supreme Court decided that evidence obtained in
violation of Fourth Amendment standards was inadmissible in federal court; this concept
became known as "The Exclusionary Rule," and was intended to prevent law enforcement
officials from engaging in illegal activity.
According to the majority in Mopp v. Ohio 196, "the exclusionary rule" was added because
"previous approaches failed to restrict police behaviour in violation of Fourth Amendment
requirements." There may be other alternatives as well, such as lawsuits for damages, review
boards, and so on, all of which have failed to prevent police from breaking the law.
The exclusionary rule was created as a genuine response to Fourth Amendment breaches.
The applicability of the exclusionary rule is not confined to evidence that is directly taken by
the police in an unlawful manner.
The "Fruits of Poisonous Tree" concept, established by the court in Nardone v. United
States197and Silver Throne timber co. v. United States198 states that information received
through tips arising from unlawfully collected evidence is likewise inadmissible. Evidence
collected via compelled confessions was likewise subjected to the concept. To put it another
way, if the government wanted to prosecute the defendant on a criminal charge and the
evidence it had gathered so far was the result of an illegal search based on a coerced
confession, it would have to find other evidence to support its claims—evidence sufficiently
removed from the context of its own illegal activities to remove any taint of illegality.
screening magistrate
The magistrate holds an important position for satisfying himself regarding ‘probable cause’
and ‘reasonableness’ for issuance of search warrant under the Fourth Amendment
194
338 U.S. 25. (1949).
195
232 U.S. 383 (1914).
196
367 U.S. 643 (1961).
197
308 U.S. 338 (1939)
198
251 U.S. 385 (1920),
82
requirement. The magistrate should be a neutral, and detached person of learning, good legal
sense and sensitivity to constitutional doctrines
In Coolidge v. New Hampshire 199 search warrants and arrest warrants against the petitioner
were-issued by an Attorney General, of the State, acting in his capacity as a Justice of Peace.
He was the in charge of the investigation, and subsequently helped in prosecuting the case.
By virtue of the said search warrants 1951 Pontiac Automobile was seized by the police at his
home after his arrest. It was held in this case that the search warrant was invalid for the
reasons that it. was not issued by neutral and detached magistrate as required by the
provisions of the Fourth Amendment.200
In another case Shadwick V. city of TAMPA201 407 U.S.345 (1972) , A warrant of arrest for
impaired driving was issued against the appellant by a clerk of the municipal court who was
appointed by the city clerk from a qualified list of civil servants and whose duties included
receiving traffic files, preparing the court's dockets and records, and filling out commitment
papers and arrest warrants against those charged with violating municipal ordinances of the
City of TAMPA. The Municipal court clerk who issued a warrant was attached to a judicial
office of the judge of the Municipal court and was not# in any way connected with the police
or the Prosecutor. He was discharging judicial functions to a limited extent.
In Fed.R.Crim. P.41 Congress limited the class of persons who could issue warrants.
199
403 U.S.443 (1971)
200
403 U.S.443 (1971).
201
407 U.S.345 (1972)
83
CHAPTER 4
JUDICIAL DECISIONS REGARDING DEPRIVATION OF

LIBERTY IN INDIA
Through judicial activism, the Indian court has played a critical role in minimising the
possibility of arbitrariness in the arrest procedure. Despite the fact that India has a number of
constitutional and legal safeguards against arbitrary arrest and incarceration, the practise of
misusing the arrest authority is widespread.
So, the judiciary has taken a proactive stance to preserve a person's rights and prohibit
arbitrary police arrests. In a free society, individual protection from oppression and abuse by
police and other law enforcement agencies is paramount.
As a result, judicial activism is a critical component and one of the key principles of a
democratic society that aims to protect people' fundamental rights while also forbidding the
government from acting arbitrarily in any scenario. In order to defend an individual's right to
liberty, the judiciary has exerted judicial oversight over the police or other law enforcement
agencies for many years.
Examining court judgements is essential for understanding the law's consequences, rules, and
the judiciary's role in strengthening the law-related arrest process. As a result, the researcher
will concentrate on the judiciary's approach to arrest and detention cases in this chapter. The
researcher has attempted to justify his hypothesis that the judiciary's approaches when
dealing with the Constitution, which is very sensitive to citizens' rights, and when interpreting
the CrPC, which is less concerned with citizens' rights and makes hunky bunky statements
about citizens' rights and takes a State Centric approach, are incompatible.
The researcher is trying to figure out why, despite the fact that the Indian Constitution
contains lofty human-rights principles, these ideals have yet to be realised in practise. Is the
problem with the law or its implementation, or is it that the judiciary has a dual voice, which
84
means that when it comes to interpreting the Constitution, it takes a pro-citizen stance and
speaks of lofty ideals, but when it comes to interpreting the Criminal Procedure Code, it takes
a pro-state stance.
The researcher will investigate the following point in this chapter, which is why the Court
does not treat all citizens equally. The Court is now carving out privileged categories or
giving specialised arrest procedures to special groups when dealing with arrest processes,
revealing a class aspect in the judiciary's approach. To put it another way, the Court is
promoting a class-based system.
As a result, the researcher examined a number of decisions made under the Constitution and
the Criminal Procedure Code in order to support the claim that the judiciary applies a double
standard, i.e., pro citizen and pro state, and to find cases that support the claim that the
judiciary perpetuates the idea of a class-based society. What is the objective of giving
specific groups of people preferential treatment? Is it really required? As a result, the
researcher divided the chapter into two sections: the first covers key Constitution and CrPC
cases, while the second covers specific group rights.
ON THE ISSUE OF RIGHT TO LIBERTY FOR THE LAW OF ARREST
Depriving someone of their own liberty is extremely painful and causes immeasurable
suffering. The right to personal liberty is very important; hence Lord Denning has observed
that
"A man's liberty of movement is regarded so highly by the Law of England that it cannot be
hindered or prevented by anyone until there is some surest grounds to arrest."
Despite the fact that the law is clearly stated, many individuals are arrested and imprisoned
on the basis of fraudulent and malicious FIRs.” 202
The identical statement has been made throughout the Courts' judgments. Fundamental rights
are those that cannot be violated by the state, according to Article 13 of the Indian
Constitution. Fundamental rights provide restrictions on state power and require the state not
202
Ghani v. Jones [1970 (1) Q.B. 693 (709)].
85
to violate these restrictions in any way. Hence, the Court in R.C. Cooper v Union of India
AIR 1970 SC 564.203 “declares that the fundamental rights are very important and focusing
mainly on the power of State to arrest and the object of State’s action in exercising that power
is the ignorance of the true intent of the Constitution of India.”
The Supreme Court while emphasizing on the preservation of personal liberty of a citizen has
observed in the case of Prabhu Dayal Deorah v. The District Magistrate, Kamrup,204
said that:
“We say, and we think it is necessary to repeat, that the gravity of the evil to the community
resulting from anti-social activities can never furnish an adequate reason for invading the
personal liberty of a citizen, except in accordance with the procedure established by the
Constitution and the laws. The history of personal liberty is largely the history of insistence
on observance of procedure. Observance of procedure has been the bastion against wanton
assaults on personal liberty over the years. Under our Constitution, the only guarantee of the
personal liberty of a person is that he shall not be deprived of it except in accordance with the
procedure established by law."205
The Apex Court in one of the famous cases of Maneka Gandhi v Union of India206 has stated
that everyone has the right to a fair trial, and that no one can deprive anyone of this right in
any way. The court recognises the importance of people' rights. The Court said, "A person
does not give up all of his rights just because he is lawfully imprisoned and is not subjected to
any treatment that violates his basic human dignity while incarcerated.". In fact, the Court
went on to illustrate a significant amount of judicial activism by analysing that courts have
the authority to ensure that their own directives are followed by investigating allegations of
violations of accused persons' rights inside prisons. It also directed the states to ensure that a
humane and hospitable environment is provided within the prison.
203
AIR 1970 SC 564.
204
AIR 1974 SC 183.
205
Ibid.
206
AIR 1978 SC 597.
86
Hence the Court in Joginder Kumar V State of U.P,207 has interpreted right to personal liberty
and said that, “depriving a person of personal liberty is very traumatic and causes
incalculable harm to the person and his reputation208.” The Court in the said case clarified,
“that having the power to arrest is one thing, but justifying it is another; a police officer
cannot arrest a person solely because it is legal for him to do so; he must be able to justify the
arrest in addition to his power to do so.” The Court further added that, “the law of arrest is in
one hand of ‘balancing individual rights, liberties and privileges’ and on the other hand has
‘individual duties, obligations and responsibilities’.” Thus, the Court in its judgement cited
the National Police Commission report, which recognises the wrongful use of police arrest
powers and one of the main causes is corruption in law enforcement agency administration,
which shows that nearly 60% of arrests made by police officers are unnecessary and
unjustified. 209 As a result, the Court, while strongly rejecting the practise of conducting
random arrests, stated that a police officer must be able to explain his or her arrest. Arresting
a person and keeping him in police custody may do irreparable damage to a person's
reputation and self-esteem. 210 Therefore, the Court has laid down that –
“No one can be arrested in a routine manner on mere allegations of commission of

an offense against him. It would be prudent for a police officer in the interest of protection of
the Constitutional rights of a citizen and of his own interest that a person can only be arrested
when there is a reasonable satisfaction which can be reached after some investigation to
justify the Guinness and bona fide ness of a complaint registered against the person. Hence he
can arrest a person on a reasonable belief on person’s complicity and on the need of effect of
arrest.”211
On the other hand, the Apex Court in the case of D.K Basu v State of West Bengal212 In the
context of the importance of personal liberty, it has also incorporated detailed guidelines for
207
AIR 1994 SC 1349.
208
D.K Basu v State of West Bengal (AIR 1997 SC 610)
209
Ibid,.
210
Joginder Kumar V State of U.P (AIR 1994 SC 1349).
211
Ibid.
212
D.K Basu v State of West Bengal (AIR 1997 SC 610)
87
making the arrest, stating that Article 22 (1) of the Constitution states that, “A person has the
right to be informed about the grounds of his arrest as soon as possible, as well as the right to
consult and be defended by a lawyer of his choice. It states that no person shall be kept in
custody without first being informed of the grounds of arrest and their rights in connection
with such detentions, and that other requirements must be met before a person can be
arrested.” It further states that holding someone without registering an arrest for corrupt or
malicious reasons is punishable by a maximum term of seven years under the Indian Penal
Code.213
Despite the Supreme Court's categorical ruling, the police are not obeying it at all.
When a cognizable offence is reported, the police are almost always dispatched to the scene
to arrest the accused, which is why in a recent case of Lalita Kumari v. State of Uttar
Pradesh214, When a cognizable violation is discovered, the question is whether a police
officer is required to file a FIR. The Court stated that while police must register an F.I.R.,
they should not arrest a person without first conducting a preliminary investigation. Article
21 of the Constitution guarantees a precious right to liberty, which should not be treated
lightly. 215
Hence, it is noticed from the above judgments of “Maneka Gandhi, Joginder Kumar
D.K.Basu” 216that the Judiciary is committed with the protection of basic dignity of the
arrested person, and making continuous efforts to carry out the Constitutional and Human
Rights safeguards in the favour of the arrested person.
SAFEGUARDS FROM ARBITRARY DEPRIVATION OF LIBERTY

(ARTICLE 21 AND ARTICLE 22 AND DUE PROCESS
213
Section 220, IPC, 1860.
214
AIR 2012 SC 203.
215
Criminal Procedure Code, 1973.
216
As referred above.
88
It is clear from the foregoing explanation that the Court emphasises the need of understanding
and appreciating the law of arrest in the context of personal liberty, as previously noted.
As a result, the researcher looks into how the Supreme Court interpreted the rights that accrue
following an arrest under Article 22.
Rights to be informed the Grounds of Arrest
Here, the Court has observed that this right is a mandatory and cannot be violated. The
following are the cases under this head:
In State of Madhya Pradesh V Shobharam,217 the Court has declared that, “giving
information to the arrested person about the reasons for his arrest is a required condition that
reaffirmed that a person's right to personal liberty cannot be restricted by detention without
telling the person as soon as feasible about the reasons for his imprisonment.”
The purpose of requiring this provision is to provide the accused the opportunity to defend
himself with the assistance of a lawyer, apply to the Court for bail, or submit a habeas corpus
petition to challenge his detention.
As a result, providing the arrested person with information about the grounds of his arrest
will provide him with a reasonable opportunity to prepare a defence; such grounds must be
precise, clear, and unambiguous; failing to fully disclose the grounds to the accused will
amount to a denial of a "fair hearing" and a violation of Natural Justice.
Hence, in the case of Guljar Singh v. State of Maharashtra 218, the Court held that, “The duty
to communicate the grounds of depriving a person from his liberty is mandatory and cannot
treated lightly and carelessly by the police officer. This shows that the Court is very sensitive
towards the right of the arrested person.”
In addition to this the Courts have reaffirmed the judgement under Dr. Ghanshyam Narayan
Singh v. State of Bihar219The court ruled that, “Informing the detained individual with the
217
AIR 1996 SC 1910.
218
AIR 1967 SC 487.
219
AIR 1958 SC 245.
89
grounds of his arrest would allow him to mount a reasonable defence or enable him to
comprehend the allegations made against him and build a case to defend himself with the
assistance of a lawyer.”
As a result, the Court decided that if the arrested individual has not been informed grounds
for his arrest, he might be freed immediately.
Also, in Ajit v. State of Assam,220 A person was arrested without an authorization; the person
filed an affidavit in court alleging that the details regarding the grounds of his arrest were not
communicated to him; a police officer responded that oral communication of the grounds was
made; however, the Court did not consider their plea and held that the duty of communication
of grounds is mandatory and should not be handled accordingly. As a result, it was decided
that if he failed to provide information regarding the reason for his arrest, he would be
freed.221.
In Re, Madhu Limaye case222 The Supreme Court stated that, “Article 22 (1) is a critical basic
right that protects a person's personal liberty while also ensuring the rule of law in the
country.”
The Court went on to say that Article 22 (1) has two requirements:
1. “The right to be informed of the grounds for arrest and the right to have a counsel
defend them.
2. To give the detained person the earliest opportunity to learn the true reason for his
detention and to defend himself as soon as feasible by calling a lawyer of his choice.
If he does not report the cause for his failure, he will be arrested.”
Further the Court in Tarapada de v State of West Bengal AIR 1951 SC 174 223added that, “if
due to any reason the information regarding the grounds of arrest is delayed, the grounds of
such delay must be justified by reasonable grounds.”
220
AIR 1965 SC 1196.
221
AIR 1965 SC 1196.
222
AIR 1971 SC 2486.
223
AIR 1951 SC 174.
90
The Judiciary's second argument is that the arresting authority does not have to reveal
complete details of the offence, but it can offer information to the degree that it informs the
224
accused of the reasons for his arrest and gives a sense of the crime alleged against him.
In a nutshell, the Court ruled that the grounds of arrest should be explicit and that the Court
can review the sufficiency of information concerning the grounds of arrest and, if the grounds
are found to be insufficient, declare the arrest unlawful and order the person's release.
However, it claims that just informing a person about the Section of Enactment under which
he has been arrested is insufficient information under Article 22. (1). Releasing a person on
bail doesn’t mean that the need to tell a person the ground of arrest is also comes to an end. 225
Right to Consult a Lawyer

Prior to Maneka Gandhi v Union of India,226 The Court stated that, “They were not obligated
to provide an attorney for the accused until he requested one. Following the Maneka Gandhi
case, a succession of decisions was decided in which it was decided that courts must offer
counsel to the detained person to defend himself in all situations, regardless of whether the
arrested person requested counsel or not”.
In the case of Shobharam V State of Madhya Pradesh 227 Article 22(1) is described as being
obligatory.
As a result, the accused's right to consult a lawyer of his choice becomes a legal requirement
that cannot be violated.
While in Hussainara Khatoon and Others v Home Secretary, State of Bihar AIR 1979 SC
1360.228 , The right to be represented by an attorney is guaranteed under the Constitution,
according to the Court, and it is extended to all individuals who are unable to hire a lawyer
and get legal assistance owing to poverty, indigenous status, or incommunicado status. In this
decision, the Court decided that depriving a person the right to be represented by a lawyer or
224
Vimal v State of Uttar Pradesh (AIR 1956 SC 1910).
225
Ibid.
226
227
1979 SC 1377.
228
AIR 1979 SC 1360.
91
providing him with no free legal assistance is a breach of Article 21 and renders the person's
trial void.
In Nandini Satpathy v. P.L. Dani AIR 1978 SC 1025.229 The Supreme Court stated that, “A
person's right to be represented by a counsel of his choice cannot be taken away in any case,
whether or not he is in jail.” In this case, the Supreme Court made a step forward by ruling
that Article 22(1) does not prevent the right to counsel from being refused to anyone who is
not indefinitely detained or arrested. The right to counsel was broadened by the Court to
cover any accused person subjected to near-custodial interrogation.
In the case of Hansraj V State of Uttar Pradesh AIR 1956 All. 641.230 At a train station,
several railway porters offered satyagraha. The Railways Act was used to arrest, try, and
punish them. The arrestees were not given any information about the reasons for their arrest,
the schedule of their court hearing, or even that they had been informed about their right to
consult with and be represented by a lawyer, which was found to be a violation of Article 22
of the Constitutional safeguards against deprivation of liberty in this case. As a result, the
Court determined that there had been a breach of Article 22 and that the trial had been
tainted.
Right to Get Legal Aid
In 1976, by Constitution 42nd (Amendment) Act, 1976, Article 39 A, was incorporated in

Constitution which provides for equal justice and free legal aid to the person who are
economically disable and have no means to get justice. This article promotes justice by
giving free legal assistance to the incompetent person on an equal basis, with no
229
AIR 1978 SC 1025.
230
AIR 1956 All. 641.
92
discrimination on any basis. As a result, Article 39A should be interpreted in conjunction
with Article 14, which provides free legal assistance to all people, including the economically
disabled, on an equal footing. As a result, in order to promote justice, the courts have
introduced numerous components to provide legal aid to the person.
In M.H.Hoskot v. State of Maharashtra AIR 1978 SC 1548,231 The Supreme Court points out
that, “free legal services are usually provided to those who are poor or otherwise unable to
get legal aid.”
Article 21 of the Constitution requires the state to offer free legal services to underprivileged
people in the spirit of the rule of law. As legal aid is an important component of a fair system,
it allows a prisoner to seek his liberty by defending himself with the aid of a lawyer.
In Mohammad Ajamal Kassab v State of Maharashtra AIR 2012 SC 3565. 232 The Court has
gone much farther, expanding the scope of legal help to non-citizens. The facts of this case
are that a Pakistani citizen was accused of the Mumbai terror attack, he was arrested, and a
lawyer was offered to him to defend himself. He declined the legal assistance offered by
Indian Court and requested that his native country allocate him a lawyer, which he did not
receive, so he sought help from Indian Court. As a consequence, the Indian Court decided
that the accused, whether a citizen or not, cannot be denied any of his constitutional rights
and must be supplied with a counsel as soon as possible.
The Court in Kishore Chandra v State of Himachal Pradesh AIR 1990 SC 2140. 233 further
clarified that the quality of service cannot be compromised while assigning a legal
practitioner or providing legal aid, which means that the counsel assigned to the arrested
person would be well versed in his profession. The right to legal aid does not include
incompetence; in order to offer a “effective Défense,” the lawyer must be competent and
skilled. 234
231
AIR 1978 SC 1548.
232
AIR 2012 SC 3565.
233
AIR 1990 SC 2140.
234
Ibid.
93
Nevertheless, the Court in the case of Khatri (II) V State of Bihar AIR 1981 SC 928.,235 The
Court stated that, “The State has a constitutional obligation to provide free legal assistance to
an indigent accused person, and that this obligation extends not only when the trial begins,
but also when the accused is produced before the Magistrate or when he is remanded from
time to time, implying that he can receive legal assistance immediately after his arrest.”
Finally in Centre for Legal Research Authority and another V State of Kerela AIR 1986 SC
2195.236 Despite social duties, the Court determined that if legal aid is exclusively in the
hands of the administration, it will not be able to achieve its aim of providing legal assistance
to the poor. As a result, the government should extend it to manage the legal aid programme
in its broadest and most comprehensive meaning, with the support of non-profit organisations
and social action groups.
Right to be produced Before Magistrate
When explaining Article 22(2), the judiciary stated that it is a very healthy provision that
allows the Magistrate to keep a close eye on the police inquiry and to punish the police if the
Magistrate finds any infringement or disobedience of the provision. The Magistrate can use
this provision to try to enforce the Constitutional sacrament's requirement. The Magistrate
can use this clause to try to enforce the Constitutional protections on the police while they are
conducting investigations. 237 In rare circumstances, the judiciary has deemed an arrest to be
unconstitutional if the apprehended individual has been held in police custody for longer than
24 hours, considering the arrest to be in violation of Article 22(2) of the Constitution and
Section 57 of the Criminal Procedure Code.
235
AIR 1981 SC 928.
236
AIR 1986 SC 2195.
237
AIR 1986 SC 2195.
94
In the case of State of Punjab v. Ajaib Singh,238 the Court held that, “right to be produced
before nearest magistrate is a Constitutional mandate, which is copied from CrPC 239and the
reason of putting it into Constitution is to make the provision mandatory and it cannot be
violated in any circumstance, it is incorporated in order to protect the arrested person from
unnecessary detention.” The Court went on to say that if the 24-hour time limit has elapsed,
the police officer must release the imprisoned individual, and if additional detention is
required, he must get the Magistrate's permission.
While Supreme Court in Ganapati K.Reddy v Nafisul Hasan240The court went on to define
the scope of this provision, ruling that Article 22(2) protects not just those held by police
under the CrPC, but also those involved in legislative processes.. In this case, the Speaker of
the Uttar Pradesh Legislative Assembly has issued an arrest warrant for a person accused of
contempt of Parliament. As a result, the Court has decided that Article 22(2) protection is
necessary and extends to legislative processes.
While dealing with this provision the Apex Court has severely criticized the act of the
Magistrate, in the case of Bhim Singh v State of Jammu and Kashmir,241 a Magistrate has
granted an order allowing the detained individual to be held by the law enforcers without the
accused being personally produced before him. The Court found it to be gross carelessness on
the part of the Magistrate to operate thus casually in a case involving deprivation of liberty.
As a result, the Court asserted that there is a gross violation of Articles 21 and 22(2) of the
Constitution in this case, in which the police acted in a mala fide manner by failing to
produce the arrested person before the Magistrate, and the Magistrate contributed by passing
an order without examining the person. As a result, the Court ordered the State to pay the
victim Rs 50,000 in monetary compensation.
238
AIR 1953 SC 10.
239
Section 56 and 57, CrPC, 1973.
240
AIR 1954 SC 636.
241
AIR 1986 SC 494.
95
The Court in Khatri v. State of Bihar,242 has emphasised the importance of adhering to the
Constitution's provision that an arrested individual be brought before a judicial magistrate
within 24 hours after his arrest. However, the Supreme Court in CBI V Anupam J. Kulkarni243
“has provided guidelines of arrest when the investigation cannot be completed within twenty-
four hours. The Court has observed that a person is allowed to be detained within twenty-four
hours and for further detention the authority of Magistrate is required.” 244
Hence, it is a significant case in which the arrested person has to be produced before
Magistrate within the specified time under Section 57 CrPC and the Magistrate on
satisfaction can authorize further detention either in police custody or in judicial custody, but
the time period of police custody cannot exceed more than 15 days and if police feel further
detention is necessary then the magistrate can remand him only in judicial custody for 60
days or further up to 90 days.245 A person cannot be held in police custody for more than 15
days, and if the investigation is not finished within 90 days, the accused must be released on
bail, as stipulated by section 167(2) of the Criminal Procedure Code. In this case, the Court
clarified that the time of incarceration begins on the date of the Magistrate's order, not the day
of his arrest, and emphasised the necessity of judicial custody beyond the 15-day detention
period.
Due Process - No Handcuffing
The Court has stated that no handcuffing should be allowed because it is a necessity of Due
Process to safeguard the dignity of the arrested person and to ensure that he is not exposed to
anything that would harm his reputation or violate his dignity. The Court has established
several restrictions regarding the usage of handcuffs in order to protect a person's dignity.
242
AIR 1981 SC 928.
243
AIR 1986 SC 494.
244
Section 57, CrPC, 1973
245
Section 167, CrPC, 1973
96
The Court in the case of Prem Shankar Shukla v. Delhi Administration246 has said, “when
handcuffing should be used and that the individual cannot be shackled because he is charged
with a serious crime and not for the escort party's convenience.” In this case, the court ruled
that, “all rules, regulations, and manuals of various statutes authorising the use of handcuffs
by the police are in violation of Article 14 of the Indian Constitution and must be struck
down.” In order to end the practise of using handcuffs, the Supreme Court established a
number of alternatives.247
While in Citizens for Democracy v. State of Assam248 In repeating the concept established in
the Prem Shankar Shukla case, the Court stated that, “the use of handcuffs indiscriminately is
inhumane, irrational, and arbitrary. Whether detained with or without a warrant, a person
cannot be shackled without the consent of a Magistrate. If a person is detained without a
warrant, handcuffing can only be used if police can show that the individual is likely to flee
or is harmful to others. It can only be used to transport the individual to the police station or
the Magistrate's office. Further the Court also declares that any officer who does not follow
the Supreme Court instruction should be punished for Contempt of Court249.”
While, the Court in Sunil Gupta Vs State of M. P250 said that, “the escorting authority shall
record the grounds for handcuffing undertrial detainees in real time, even if they must notify
the Court in severe situations, so that the Court can examine the facts and provide appropriate
guidance to the escort party.”
In Sunil Batra Vs Delhi Administration251The Supreme Court stated that, “handcuffs should
not be used on a regular basis and that the right to freedom of movement provided by Article
19 of the Constitution cannot be brutally curtailed by the use of handcuffs or other shackles,
even if the individual is a trial prisoner.”
246
1995 SCC 743.
247
Ibid.
248
1995 (3) SCR 943.
249
Contempt of Courts Act, 1971.
250
AIR 1978 SC 1675.
251
AIR 1983 SC 96.
97
Lastly, it is alleged by the Court that Right to inform about the arrest to the relatives or a
family member of the arrested person is also a part of due process. Hence, the Court in the
case of D.K Basu v. State of West Bengal,252 said, When a person is arrested, the information
about the arrest should be given to any family member, relative, or friend of the person.
The police officer is required to inform the individual of this privilege and record it in the
case diary of the person who has been notified of the arrest since it is an essential component
of the loss of liberty.
Due Process – Compensation
According to court rulings, due process necessitates compensation even if there is no

mechanism for reimbursement but if there is a reservation under international law. As a
result, the judiciary has gone beyond its reservations under the international agreement to
widen the protection of citizen rights, and to avoid violations, it has begun paying victims,
which was eventually integrated into the Criminal Procedure Code under Section 357A.
There was no provision in the law for compensation.
The following are the cases where court has provided compensation to the victim:
In the case of Arvind Singh Bagga vs. State of U.P & Others 253 The Court has denounced the
police brutality, as well as the wrongful arrest and detention of women witness in jail, and has
directed the State to take immediate action to pursue criminal charges against all of the
officers involved.
The Court further ordered the State to compensate the victim Rs. 10.000 and each of the other
persons who were unlawfully held and humiliated for no cause Rs. 5.000.
However, the Court in Nilabati Behra v State Of Orissa 254 It was stated that, “one of the parts
of Article 21 is the right to compensation, and that the State has a duty to ensure that the
guarantee of Article 21 is not denied to anyone, including convicts, prisoners, and undertrials,
and that it is the sole responsibility of law enforcement agencies to ensure that persons in
custody receive all of these guarantees.” The Court also stated that, “this is a strict obligation
252
AIR 1997 SC 610.
253
AIR 1995(1) SC 117.
254
AIR 1993 SC 1960.
98
of the State that accepts no exceptions, and that if there is a breach, the State must bear
responsibility by compensating the victim's family for the loss of life caused by its agents'
wrongful conduct.” The State has the right to reclaim the compensation sum from the
wrongdoers, according to the Court in this instance. As a result, the Court must clarify
explicitly that the goal of law is to ensure that individuals live in a legal system that protects
their interests and defends their rights, not just to civilise public authority. This decision
reflects the Court's position that, in order to protect citizens' interests, it may be necessary to
go beyond the legal system's limits. India has lodged an objection to Article 9 (5) of the 1966
International Covenant on Civil and Political Rights, which stipulates that anyone who has
been deprived of their liberty unlawfully has an enforceable right to compensation. Through
judicial interpretation, the right to compensation for victims has been institutionalised in the
Indian legal system.
In State of Maharashtra v Ravikant S. Patil255 The Supreme Court ruled that, “the state must
compensate an undertrial prisoner who was shackled and led through the streets by the police
in a parade.”
The Court also ruled that, “the state can file a criminal complaint against the wrongdoing
officer and seek monetary damages from them. However, the procedural law also empowers
the Criminal Courts, to compel the perpetrator to pay a fine to the victim at the time of
sentencing either in whole or in part for any loss or injury caused by the offence.” 256
In the case of Gopalanachari v. State of Kerala257 the Supreme Court has observed that, “the
Police have to exercise their power to arrest and detention in accordance with law as provided
by Article 21 of the Constitution and asserted that their actions must be ‘right, just and fair
and not arbitrary; fanciful or oppressive’." 258 As a result, the Court in this instance ruled that
Sections 107, 109, and 110 of the Criminal Procedure Code are preventive powers that should
be used with prudence. Innocent individuals must not be harassed and brought before judges
for the purpose of executing good behaviour bonds under the pretence of being suspected or
habitual criminals. The Court went on to clarify that police officials cannot detain someone at
255
AIR 1991(2) SCC373.
256
Section 357A, CrPC, 1973.
257
AIR 1981 SCC 674.
258
Ibid.
99
random under Section 151 of the Criminal Procedure Code. They are unwilling to trust
anyone they meet on the street, especially those from low-income backgrounds. It was
concluded that judicial scrutiny might be imposed if certain parts were used inappropriately,
and that magistrates had a responsibility to ensure that police officers do not abuse
preventative sections.
Despite the fact that these rules and rulings have given new structure to arrest and detention
legislation, leaving no room for arbitrary loss of liberty, India continues to see widespread
misuse of police authority to arrest, as well as incidences of arbitrariness and violence. All
atrocities and abuses of rights are the result of the Government's failure to implement the
norms and guidelines set forth in the Judiciary's decisions by making necessary changes to
the relevant areas of the CrPC and introducing some new ones. The government's political
will is required to put these instructions into action. As a result, in order to avoid arbitrary
arrest and imprisonment, the government should be required to follow the statute's standards.
Finally, it is apparent that the judiciary is attentive to citizens' rights, regards them as
essential, and has established a number of new rules and guidelines in their favour, despite
the fact that they do not exist in law or are subject to reservations under international law. As,
for example, India has expressed reservations about Article 9(5) of the ICCPR, but thanks to
judicial initiatives, it has now included compensation for victims in its legal system,
demonstrating that the judiciary is taking a citizen-centric approach. Hence, in lieu of the
above facts it can be said, that the Judiciary is protecting the individual as asserted in the R.C
Cooper v Union of India, that, “fundamental right cannot be violated as, these rights of
citizens are paramount259 which is also provided in Article 13 of the Constitution.”
3.3. APPROACHES OF JUDICIARY WHILE INTERPRETING

CRIMINAL PROCEDURE CODE, 1973
Although the judiciary has said that a person's personal liberty and other rights derived from
Article 22 are extremely essential. however, it adopts a different approach when it comes to
259
AIR 1970 SC 564.
100
interpreting the power to arrest under the Criminal Procedure Code of 1973. When it comes
to the CrPC, it's evident that the court is siding with the state and taking a state-centric
approach rather than a citizen-centric approach, as it has in the past. As a result, the
researcher has cited various examples from the Criminal Procedure Code in which the judge
has disregarded the right to liberty of citizens.
Bail and Denial of Liberty and Equality
The first point to consider in this case is whether or not a person should be granted bail in
order to be released. The Indian judiciary ruled that the right to bail exists in the Indian legal
system, allowing a person to be freed on bail until he is found guilty in a trial. The bail is
available to a person as a matter of right if he is arrested under bailable offences under
CrPC260. It is provided to anybody who is not facing the death penalty or life in prison, as
well as women, children, and the elderly who have committed non-bailable offences.
The judiciary in a number of cases has demonstrated that a person's right to personal liberty
cannot be infringed upon unless he or she has been proven guilty and convicted of an offence.
Article 21 of the Constitution guarantees it, and the objective of depriving someone of their
liberty is to secure their presence during the legal procedure. As a result, because holding
someone in jail for lengthy period of time is exceedingly undesirable, the Criminal Procedure
Code allows the offender to be released on bail after providing security to secure his or her
appearance at trial.
But in the case of Hussainara Khatoon And Others v. Home Secretary State of Bihar261 the
Court observed that, “Article 21 of the Constitution lays down that no one shall be deprived
of their life or personal liberty except according to the procedure established by law and the
procedure must be reasonable, fair and just otherwise such deprivation would be illegal.”262
The Court also noted that, “one flaw in the Indian criminal justice system is that certain
people end up spending long periods of time in custody, not because they are guilty, but
because the courts are too busy to try them and the accused are too poor to afford bail
because the bail amount set by the Magistrate or the police is so high that poor people find it
260
261
AIR 1979 SC 1360.
262
Ibid.
101
difficult to come up with such a large sum of money. The reason for excessive amount of bail
is that, the amount has decided by using a “property-oriented approach”. Such an approach is
based on the assumption that risk of monetary loss is the only deterrent that prevents a person
from fleeing the judicial process.” 263
These are following under trial figure which shows the status of undertrial prisoners’ waiting
for trial, according to the NCRB, Prison Statistics 264, The number of undertrial prisoners is
330487 which are waiting for trial for more than 2 years. Out of which the highest numbers
of undertrials are in the Uttar Pradesh with 73,418 people still in jail.
22
However, it has been witnessed that if the offence is bailable, the police are duty bound to
1
release the arrested person if the person is willing to give bail 265 and the amount of bail
should be decided keeping in mind the paying capacity of the accused.266 However, the
Court stated that this is a significant flaw in the criminal justice system since too many
individuals spend extended periods of time in prison merely because their bail is too
1
expensive and they are unable to afford it. As a result, it is the responsibility of police officers
and magistrates to ensure that bail terms are not so severe as to undermine the purpose of
granting release.
23
Although, under Section 438 of the Criminal Procedure Code, the possibility of granting bail
is a procedural protection. It has been discovered in some situations that the judiciary is not
51
particularly vigilant on the subject of not providing bail and leaves the decision to give bail to
1
the discretion of the High Court and Session Court. It is not a matter of right to seek bail, but
rather a matter of the Court's discretion. Section 56 further states that if a person appears
1
before a Magistrate within twenty-four hours, the Magistrate will decide whether he will be
263
AIR 1979 SC 1360.
264
National Crime Records Bureau, Prison Statistics in India, 2019, available at, http://ncrb.nic.in/(Visited on
June 15, 2021).
265
Section 436 (1), CrPC, 1973
1
266
Section 440 (1), CrPC, 1973, lays down that the amount of bail bond shall be fixed with due regard to the
circumstances of the case and shall not be excessive
102
released on bail or whether additional incarceration is necessary. But it is also found that
1
when a person comes to the Court about the excessive amount of bail then Court will see in
the matter otherwise no one is checking the what amount is put to grant bail. This shows that
1
the Judiciary is not very sensitive about after arrest procedure, they mostly concentrate on
compliance of provisions of Article 22(1) and 22(2). While in a case the Court held that the
police officer is not bound to inform the arrested person that he can be released on bail under
Section 41(2) and said that this Section gives no such indication that police officer is bound
to inform the person that he is entitled to be released on bail. 267
26 10
In fact, in the case of Rajesh Ranjan Alias Pappu Yadav vs State of Bihar268 the Court has
laid down onerous conditions to grant bail as it says that if the bail is granted to a person by
Magistrate, then the Court has to give specific reason and also laid that prolonged detention
or delay of police in investigations are not grounds to claim bail 269.
5
This shows that Judiciary on one hand talking about personal liberty and other rights to
secure freedom of the arrested person and on the other hand it is not letting the people to
come out or set free by laying onerous conditions to be released.
71
3.3.2. Communication of Grounds Arrest and Detention
1
Despite the fact that the right to know the reasons of detention under Section 50 of the
Criminal Procedure Code is a constitutional necessity, it requires the law enforcement officer
28
to notify the individual whose liberty has been deprived of the grounds of arrest.
1
Consequently, the police officer will be in breach of the Constitution's Articles 21 and 22(1).
As a result, non-compliance with the Constitution mandate will be considered a breach of a

person's basic right, however the Court has given this clause two interpretations.
Even though the Constitution does not require it, a person who asserts disregards to Section
50 of the CrPC must show it..
267
Supritendence and Rememberance of Legal Affairs, Bengal v Jahir Ali, (Cr.L.J 1073).
268
2005 CrLJ, 242.
269
Ibid.
103
1
In the case of Ajit Kumar Sannah v. State of Assam270, “The litigant contends that the
arresting officer refused to inform him of the grounds for his imprisonment, barring him from
filing a Habeas Corpus petition with the court.”
The petitioner bears the burden of proving non-communication of grounds, according to the
1
Court. which is again confirmed in the case of Vikram v State271 that, “the subject of Section
50 process compliance is a substantive issue and must be decided based on the information
presented in the case.”
1
As a result, despite the fact that there is no "straight jacket formula" to justify whether all of
43
the required reasons have been communicated or not, the Court in this case held that knowing
1
the grounds of arrest is a requirement that must be communicated to the individual, and that
the person arrested must know the reasons of his imprisonment. It is a constitutional
guarantee that must not be infringed upon in any way.
In this instance, the Court stated that if anybody claims a violation of Section 50 of the CrPC,
26
the prosecution has the burden of proof, indicating that the Court is unconcerned with
procedural safeguards272.
58
In Om Prakash Dwivedi v. State273 The Court ruled that, “if a person is arrested while
committing a cognizable offence, he does not need to be informed of the reason for his arrest,
since he is already aware of it, and it is believed that he is aware of the grounds. Hence
detention cannot be challenged as illegal in such a case and the police officer is protected
1
under this situation.” In fact, in one case the Court has gone a step further and stated that, “If
any police officer not complies with the provisions of Section 50 of CrPC, the detention
cannot be held invalid and the person can be detained further with the authority of
Magistrate.274 The noncompliance of Section 50 will not affect the remand order and he can
apply to release on bail.”
270
1976 CriLJ 1303 (Guh).
271
1996 CrLJ 1536 (All).
272
Ibid.
273
AIR 1949 Mad.744.
274
104
1
In Sher Bhadur V State of U. P275 The Court has taken the liberal view that if a police officer
does not communicate the grounds of his arrest to the accused but does provide him with a
document, Section 50 has been completely complied with and the grounds have been given to
36
him. However, in the instance of Article 22(1) of the Constitution, where the Court has said
17
that the grounds must be presented in a manner that the accused can understand, this is not
1
the case.. As a result, this demonstrates the discrepancy in Court methods, which to some part
supports the researcher's claim that the court is communicating in two class.
Confession to a Police Officer
5
According to Section 24 of the Indian Evidence Act of 1872, any confession is immaterial in
a criminal case if the Court believes it was induced by a threat, enticement, or promise.
5
Section 25 states that a person's confession to a police officer is inadmissible in court as
27
evidence against them. Like-wise Section 26276 lays that any confession made by a person
while in custody of the police is also inadmissible as evidence against him, unless it is made
55
in the presence of Magistrate. The purpose of granting such provisions is to protect the
11
arrested person from unlawful conviction and to stop the police officer from gaining any
advantage or avoid any evil of a temporal nature in reference to the proceedings against the
person. 277
54
The argument being argued here is that if a confession given to a law enforcement officer
while in detention is inadmissible, it cannot be used as evidence against the person, and if it
15
is, it is a breach of the individual's constitutional protection against self-incrimination as well
as the Indian Evidence Act.
49
This issue has been brought up to decide in the Kartar Singh v State Of Punjab278 and State v
Navjot Sandhu279 In both of these cases, it was stated that, “ a confession given to a police
officer is admissible against the person under the POTA and TADA acts, which is in
275
1994 CrLJ 720 (728) (All).
276
Indian Evidence Act, 1872.
277
1961 CrLJ 504.
278
AIR 1961 SC 1787, 1962 SCR (2) 395.
279
Appeal (Crl.) 373-375, 2004.
105
violation of the Indian Criminal Justice System, is contrary to the principle of fair trial, and
was unfair and unjust in violation of Article 21 of the Constitution's ‘procedure established
by law’.” But the Court allowed the confession as admissible evidence 280 and while in
Parliament Attack Case, the Court goes further and laid down that even if an arrest is illegal,
any recovery on the basis of such arrest is legal and admissible and hence they allowed the
confession as admissible evidence. 281
This illustrates discrepancy in judicial approaches, where the Court, on the one hand, talks
31
about arbitrary arrest and detention and holds that the conditions of detention are very
40
important to protect the life and liberty of the arrested person, and on the other hand, it allows
5
confession to some individual and creates a group, which is contrary not only to the Indian
Evidence Act but also to the Constitution of India a criminal procedure code.
If it concerns Legality of arrests and detentions, the Court has ruled that if an arrest is
unlawful, any recovery made as a result of that arrest is likewise unlawful. It should be noted,
however, that in the instance of illegal searches and seizures, the Indian legal system enables
any material discovered to be valid and acceptable as evidence in court.
Hence, “While a confession acquired during an illegal remand to police custody of a person is
illegal, any material or evidence collected through a search or seizure is not regarded criminal
28
if it is not specifically prohibited by law”, the Court held in one in the case of State v N.M.T
Joy Immaculate282 .
The Court stated that, “if a law enforcement officer discovers evidence from an illegal search
and seizure, and his act is also in violation of Section 50 of the CrPC, the evidence is
admissible as evidence against him, and it will not affect a person's conviction, and the
evidence gathered from the illegal search will be held valid.”
Due to the claimed illegality of police custody, search, or seizure, the court specifically said
that any important information obtained under the circumstances is not forbidden by law. As
62
a result, the Court's minority decision provides that anybody who has been unlawfully held
18
280
6 Kartar Singh v. State Of Punjab, (AIR 1961 SC 1787).
281
State v Navjot Sandhu Appeal (AIR 2004 SC 373).
282
(2004) 5 SCC 729.
106
48
must be released, but any evidence obtained through an unjustified search and seizure can be
used against him.
1
As a conclusion, this is a contradictory clause that allows policemen to abuse their authority
and harass innocent civilians. This reflects the Court's stance on procedural law, which is in
support of securing the most convictions and providing police officers more power.
14
This is a major drawback of the Indian legal system in that evidence obtained illegally and
unlawfully is admissible, while most countries, such as the United States, treat such evidence
1
as not admissible and follow the doctrine of the "Fruits of Poisonous Tree," which states that
1
any material obtained illegally is inadmissible as evidence in court because it was obtained
illegally and on the basis of some justification283.
Good faith
1
There is some incidence in which the Court has given extra advantage to the police officer
who acted under good faith. The Court has laid down that, “any police officer acted in good
faith are fully justified even his act not have been strictly justified by law”. 284 there are
number of cases under this head, hence to justify the point take the case of Bhawoo Jivaji v
1
Mulji Dayal,285 The court determined that a police officer's actions in the name of good faith
1
are illegal, and that the complainant has no right to defend himself. A police officer,
according to the Court, is a public worker acting under his authority, and as such, he can
never do something that is threatening to others' lives or causes grave injury to others.
According to the Court, the individual has no right to resist, and while his conduct may not be
legal, detaining him on reasonable suspicion is legal under Section 41. Under the pretext of
good faith, the judiciary is backing the public servant rather than individual liberty by giving
the police disproportionate power and the possibility for abuse.
283
http://nationalparalegal.edu/conlawcrimproc_public/ProtectionFromSearches&Seizures/ExclusionaryRul
e.asp (Visited on August 8, 2021).
284
Ratanlal and Dhirajlal, Criminal Procedure Code (Lexis Nexis Butterworths Wadhwa, 17th ed., 2009).
285
1
Bhawoo Jivaji v Mulji Dayal, (I.L.R12 Bom.377).
107
1
The next case under which the Court has given a pro State approach is in re Om Prakash
Gupta,286 in this case the Court has refused to see in the merit of arrest and asserted that, “if a
police officer arrested a person without warrant, with the intention that he has no other option
but to arrest in order to prevent the commission of an offence then his act is fully justified.”
The Court stated that because this is a case of "instant arrest," which is a subject of police
1
discretion, the Court cannot substitute its own view to legitimise the arrest and order the
officer to utilise alternative options to avoid the conduct of an offence. 287
As a consequence of the preceding analyses, it is evident that the Court's approach is

conflicting: at times, it pays close attention to people, and at other occasions, it emphasizes
the State in executing its power.
1
As previously stated, when dealing with procedural provisions, the Court gives a very liberal
1
interpretation or tends to make a hunky bunky statement about a person's rights, sometimes
by giving preference to the State to curb the crime by extending the time of detention, and
1
other occasions by going beyond the scope of legality and supporting State agencies engaging
in illegal conduct.
FOR ARRESTING VARIOUS PERSONS, A SPECIAL PROCEDURE MUST BE

FOLLOWED.
It is argued under this heading that when the Court discusses the importance of liberty, it does
46
so in broad terms, i.e., for all individuals, but when it comes to translating the rights, it gives
special privileges to some people over others, highlighting that the Court is making a
1
distinction between people by establishing specific guidelines to arrest certain categories. The
approach used by this Court raises the question of whether the judiciary is creating a society
1
that is class-biased. As a result, the researcher has tried to figure out why these certain groups
63
have been given special treatment when it comes to arrest laws. Isn't this a flagrant violation
of the Constitution's equality ideals in Article 14? There should be no discrimination on any
34
basis since the law guarantees equality before the law and equal protection under the law,
1
implying that everyone is equal in the eyes of the law and that it is the law's job to treat
1
286
A.I.R 1949 Mad. 744.
287
Chakkappan v State of Kerala, (A.I.R 1960, Ker.297).
108
everyone equally. Isn't this a good suggestion? Is it feasible to instil a sense of class in
society?
1
Judges, M.P/MLAs, Doctors, Women, Children, arrests under 498A, and arrests under
Schedule Caste and Schedule Tribes under the Prevention of Atrocities Act are among those
who have received special treatment. The researcher has divided the people on this list into
the following categories: vulnerable people, people who are protected by law, public
servants, and others.
1
Arrest of Vulnerable Person
76
The Criminal Procedure Code additionally specifies that women cannot be arrested between
sunset and daybreak, unless in extraordinary circumstances and in the presence of a female
1
constable288 with a strong sense of decency. Bodily searches of females can only be
conducted by a woman and with decency. 289
The Supreme Court in Sheela Barse v State of Maharashtra 290, has established a number of
criteria for arresting women. The Court ruled that, “women's dignity and modesty must not
be violated. Physical and sexual abuse are particularly common among women in custody.
Custodial rape and harassment allegations are taken very seriously by the courts.”
1
The National and State Human Rights Commissions, as well as the Women's Commission,
are becoming increasingly involved in ensuring that such abuses are not overlooked. It is the
1
official in charge of a police station's responsibility to guarantee that women are not injured
and that searches of their person are conducted exclusively by women who adhere to
stringent decency standards.291
1
As a result, it is reasonable to conclude that women and children are vulnerable members of
society who must be safeguarded from all forms of abuse and exploitation. As a result, in the
matter of Christian Community Welfare Council of India vs. Maharashtra State
1
288
Section 46(4), CrPC, 1973.
289
Section 100(3), CrPC, 1973.
290
1983(2) SCC 96.
291
109
1
Government292, The Court has ordered the State Government to form a committee to ensure
that females cannot be detained without the presence of a female constable, that no female
may be arrested after nightfall and before daybreak, and that females are housed in separate
jails. 293
1
However, in cases of juvenile arrest, the Court decided that it should only be used as a last
resort and for a limited period of time.
Children are society's most defenceless members, and they must not be abused or tortured in
14
any form. Various laws and judgments have been passed to ensure their safety. On the arrest
1
of children, the National Human Rights Commission said that children should not be
frightened and that police should never use force against them.
In situations of juvenile arrest, however, the Court ruled that it should only be used as a last
14
option and for a limited duration. Children are the most vulnerable members of society, and
1
they must not be harmed or tormented in any way. Various laws and judgment have given for
their protection. National Human Right Commission on arrest of children held that children
should not be terrorized and police can never use force against them.294
1
Children under the age of 15 are not allowed to be taken to the police station for
questioning295, and if a child is arrested, they will be sent to the "special juvenile police unit"
or a designated officer, with knowledge about the arrest being instantaneously given to the
child's parents and guardians296, as well as the juvenile justice board.297
292
AIR 2004 SC 7.
293
Ibid.
294
1
National Human Right Commission, on Children Rights, available at
http://www.ncpcr.gov.in/index1.php?lang=1&level=1&&sublinkid=111&lid=296(Visited on August 4, 2014)
295
Ibid.
296
Section 13, Juvenile Justice Act, 2000.
297
1
Section 10, Juvenile Justice Act, 2000.
110
ARREST UNDER PROTECTED LEGISLATION
Some of the protected legislation has also given individuals who break the law considerable
immunity from arrest. This protection is for the benefit of others, not for the benefit of the
person to whom it is granted.
20
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Consumer
Protection Act, 2019 and other legislation, such as 498A of the IPC, provide for particular
1
procedures to be followed in making an arrest of a person who has committed a crime against
a SC/ ST person. According to this legislation, prior to actually making any arrest, a police
1
officer must conduct a preliminary investigation into the matter of the offence, and can only
be arrested in accordance with the rules of these Acts, with any infringement resulting in the
officer being punished for failing to perform their duties. The purpose of giving particular
1
protection is to safeguard SC/ST persons from prejudice. 298
1
The police officer should exercise caution and care when arresting a person who has
committed domestic abuse under Section 498A of the IPC. The reason for taking necessary
caution is that this is a situation involving a person's home life, and the culprit is someone
who is related to the victim, and any irresponsible behaviour will demolish the marriage's
terrified thread. It has been noticed that once a person has been arrested under this law, he
will never return to his wife. As a result, providing particular arrangements under protected
laws for persons is totally justified.
1
ARREST OF PUBLIC SERVANT
The Court has granted exceptional protections to a select set of persons, including judicial
officers, the CBI, and MPs and MLAs.
298
ST/SC Prevention of Atrocities Act, 1989.
111
1
JUDICIAL OFFICER
In the case Attorney-General v. Times Newspapers(1974) A.C. 273.299 The Court ruled that,
“when a Judicial Officer is apprehended by police, he or she cannot be beaten or
1
handcuffed.” While the Supreme Court in Delhi Judicial Service Association, Tis Hazari
Court, Delhi v. State of Gujarat and others AIR 1991 SCC 2176300 “In no case can a judge be
handcuffed; if the judge attempts to flee violently, the officer must immediately report his
reason for handcuffing to the District & Sessions Judge or the Chief Justice of the High
Court, and if handcuffed, he must prove the necessity of handcuffing; otherwise, he will be
guilty of misconduct and must pay a fine.”
ARREST OF MEMBERS OF PARLIAMENT AND IN CBI CASES
1
In the case of arrests of Parliament members and Legislatures, some safeguards have been
1
offered for them, such as the fact that they cannot be arrested within the precincts of the
House of Parliament without the Speaker's permission, and that if arrested outside the house,
information to the Speaker must be given immediately, as required by the Lok Sabha
manual. 301
A public worker can be arrested if it is necessary for an investigation or if he is attempting to

1
flee prosecution and action against him. It is stated that the Superintendent of Police and
Investigating Officers have the authority to arrest CBI staff, and that such arrests should be
made with caution. 302. It is also stated that the arrest should not be made in front of the
public, and that the officer arresting CBI staff must avoid undue notoriety and humiliation 303.
299
(1974) A.C. 273.
300
1
AIR 1991 SCC 2176, 1991 SCR (3) 936.
301
RULE 229 “Rules of Procedure and Conduct of Business for Lok Sabha”.
302
1
CBI MANNUALS, ARRESTS, CUSTODY, BAIL & REMAND.
1
303
Procedure for arresting public servants available at http://www.india-forums.com/forum_posts. asp?
TID=3299610. (Visited on July 8, 2021).
112
Others: As take example of doctors
1
In the event of a doctor's arrest, the court has granted them protection in criminal cases. As
in of case of Jacob Mathew v. State of Punjab and Anr304 the Court said that, “doctors have to
be protected from frivolous complaints of medical negligence and has to be provided certain
safeguards from being arrested. Hence, the Court held that a doctor accused of negligence
should not be arrested in a routine manner simply because a charge has been levelled against
him, unless his arrest is necessary for the investigation or for collection of evidence”.
The Court stated that doctors are life savers who should not be detained frequently, and
supported them by stating that, “surgeon with shaky hands under fear of legal action cannot
perform a successful operation and a quivering physician cannot give proper medicine to his
patient”305and specified that a doctor cannot be arrested on an allegation of carelessness, If
1
they do, the officer in question is guilty of contempt of court and might be prosecuted and
penalised.306
1
As a result, while the Judiciary discusses a person's rights in the Constitution, it considers
citizen's rights to be important and treats all citizens equally, but when it comes to arrest
procedures, it begins to carve out exceptions. Rather than cutting exclusions and putting
down specific provisions, the researcher suggests that a uniform standard be included, or that
1
the specific law be applied equally to all, lest it split society into two groups, affluent and
poor, or special and general, which will devolve the concept. So, rather than trying to carve
1
exclusions and laying down specific provisions, the researcher proposes that a uniform norm
be implemented, or that the special provision be applied equally to all, because it might
1
304
Jaccob Mathew v State of Punjab [(2005) 6 SCC 1].
305
Supra note, 303, p51
306
Ibid., p52.
113
1
divide population into two parts, rich and poor, or special and general, devolving the concept
of rule of law and causing society to descend into anarchism.
1
In conclusion, the Court or Commission should think about the impending problem and come
up with laws that don't create a class-based society. As a human being, everyone should have
1
the right to liberty and dignity, and everyone should be treated equally unless they are proven
guilty.
4
Chapter 5
CONCLUSIONS AND SUGGESTIONS
4
In India, the criminal justice system assumes that the prosecution, using its investigative
resources and employing competent prosecutors, will do everything possible to prove the
case, while the accused, on the other hand, will hire the equally competent services of a
counsel to defend himself and challenge the accusations levelled against him.
Furthermore, the concept of a person being assumed innocent until proven guilty continues to
loom large. It is undeniably true that erroneous acquittals are unpleasant and undermine
31
public trust in the legal system; but so, does the mistaken conviction of an innocent
29
individual. The criminal justice system is started when a First Information Report (FIR) is
filed, which leads to the investigative phase. Arrest is a necessary component of a successful
4
inquiry. The prosecution has a legal obligation to find the crime by whatever means
necessary, and it bears responsibility if no progress is made in the inquiry.
114
59
The constitution of India provides its inhabitants with the basic right of protection against
19
unauthorised intervention by others. According to the most essential right, the right to life and
personal liberty, loss of liberty can only be accomplished through the legal process. Article
1
22 protects a person who has been deprived of his personal liberty due to arrest and
imprisonment.
Arrest and detention being a state authority that has the consequence of directly infringing on
3
a person's liberty, should be used in conformity with the law.
30
Article 9(5) of the International Covenant on Civil and Political Rights provides that “anyone
who has been the victim of unlawful arrest or detention shall have an enforceable right to
15
compensation”, and this provision is applicable to all unlawful or arbitrary arrests and
15
detentions. 307 Article 5(5) of the European Convention provides that “everyone who has been
the victim of arrest or detention in contravention of the provisions of this article shall have an
enforceable right to compensation”
70
Everyone has the right to compensation if their liberty is unlawfully taken away due to
72
violations of international or national law. Compensation may be contingent on the showing
of injury.
1
The Indian criminal justice system is sacred, and its principles must operate within the
bounds of and in accordance with the Constitution's safeguards. Within the constitutionally
3
permitted boundaries, it is the State's bounden obligation to investigate methods and means to
regulate crime and criminality.
The fact that the current criminal justice system has failed to contain the rising crime rate
underscores the urgent need for the State to go beyond the outdated legislation of arrest and
imprisonment and embrace a constitutionally valid and scientifically successful means of
dealing with crime and offenders.
1
In order to avoid arbitrary arrests and safeguard the rights of those who have been detained,
1
the Supreme Court has ordered the government to revise the legislation and incorporate the
recommendations of the National Human Rights Commission, Law Commissions, National
Police Commission, and Court into the statute.
307
65
See General Comment No. 8 (16) in UN doc. GAOR, A/37/40, p. 95, para. 1 and p. 96, para. 4.
115
The Judiciary Proclamations on Law of Arrest, as well as modifications to the CrPC. 1973
issued in the years 2005, 2008, and 2010, emphasised the need of arresting solely for legally
acceptable grounds Just because you have the capacity to make arrests doesn't mean you may
1
use it whenever and whenever you choose. The interest of public and sovereignty should be
53
the only justification to deprive a person of his liberty. 308
Getting people insurances to get legal help
There are insurance companies that specialise in life, health, and general insurance. Why not
use an insurance business to assist undertrials in getting justice through legal assistance?
Professional indemnification for medical practitioners is the most prominent example.
Technology
From military to space, India has achieved technical achievement. We should use our
technical expertise to create software that examines various data from our undertrials,
allowing undertrial cases to be heard according to seriousness and undertrials to be released
based on the results of the computer study. The adage "Man above Machine" must be upheld.
Computer analysis can only aid in determining which cases require a speedier trial and
resolution; nonetheless, the dispersion of cases will be handled by reputable judges.
Utilization of services of our highly revered retired judges
We may adjust our system to use the skills of our retired judges as part of a service
procedure, akin to "Officers on Special Duty. "These judges can hear the cases of on fast
5
track basis and who have committed less serious offences, depending on the gravity of the
offence, to ease the load of undertrial cases in our current judicial system.
Suggestions
The law is majestic, but its grandeur is being soiled by the police and judiciary's unlawful
25
actions. The Supreme Court of India and certain High Courts of India have recommended
that police and judicial officials receive legal training to better grasp the demands of the law
and the lawmakers' intent behind the laws that have been established. In most situations, the
308
24
Joginder Kumar v State of U.P (AIR1994 SC 1349).
116
police and the judges follow well-worn paths and make arrest and remand automatic. The
50
undignified arrest and automatic remand should come to an end with the recent revisions to
the Criminal Procedure Code regarding the law of arrest, including the insertion of section 41
A into the Criminal Procedure Code.
As previously mentioned, "law is not an abstract concept; it is a living organism since it is

applied to real human beings." The police and the judges should keep this in mind and adopt
a more compassionate mentality.
The empirical investigation parameters determining the rights of arrestees and the duties of
4
police officials aim to ensure authorised arrest, prevent illegal detention, and devise
procedural mechanisms in which an account of arrest is found in the case files of the
investigating officers, duly signed by witnesses and countersigned by the arrestees
themselves, with a parallel record in the court system.
9
Though the study reveals that an arrestee's time, place of arrest, and venue of custody are
6
telegraphically notified by the police where the arrestee's next friend or relative lives outside
the district or through the Legal Aid Organization in the district and the police station of the
area concerned within a period of 8 to 12 hours after the arrest without failure in all
telecommunications which is the arrestee's home neighbourhood, and from there to the native
village's police station, where it is served to the arrestee's family members.
Through reverse signals, the compliance of its service to the worried members is reported to
the investigating officials.
It is proposed that, in addition to the standard practise of transmitting arrest information

through telegraph, the same be done on a daily basis via uploading to District Police
websites.
117
BIBILOGRAPHY
BOOKS
1. B. UMA DEVI, ARREST, DETENTION, AND CRIMINAL JUSTICE SYSTEM
(ED., 2012).
2. M.P. JAIN, INDIAN CONSTITUTIONAL LAW 98 (6TH ED., 2010).
3. RATANLAL AND DHIRAJLAL, CRIMINAL PROCEDURE CODE, 1973(ED.,)
4. R.M. TUFAIL, SKP. SRINIVASAN, POLICE DIARIES (3RD ED., 2013).
5. A.B. SRIVASTAVA, COMMENTARIES ON POLICE DIARIES (12TH ED., 2012).
6. D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, (8TH ED.,
2008).
7. V.R MANOHAR, SUPREME COURT CRIMINAL LAW DIGEST, VOL. 1(1950 –
2010).
8. DAVIS. H. BAYLEY, FORCES OF ORDER: POLICE BEHAVIOR IN JAPAN
AND THE UNITED STATE, YALE L.J PP. 201. 510. (1976) [REVIEWING GARY
T. MARXT (2005)].
REPORTS
1. CONSTITUENT ASSEMBLY DEBATE, (SEPTEMBER 15, 1949), VOL. VII

THIRD REPRINT, LOK SABHA SECRETARIATE, NEW DELHI.
2. NATIONAL HUMAN RIGHT COMMISSION ANNUAL REPORT (2003- 2004)
available at ,http://nhrc.nic.in/documents/ar/ar03-04eng.pdf.
3. HUMAN RIGHT WATCH, (2009) REPORT ON BROKEN SYSTEM
DYSFUNCTION, ABUSE, AND IMPUNITY IN THE INDIAN POLICE HUMAN
RIGHTS VIOLATIONS BY POLICE( AUGUST) available at,
http://www.hrw.org/sites/default/files/reports/india0809web.pdf.
4. NATIONAL HUMAN RIGHT COMMISSION, III REPORT ON VISITS TO
POLICE LOCKUPS/GUIDELINES ON POLYGRAPH TESTS AND ARRESTS
(NOVEMBER, 1999) available at, http://nhrc.nic.in/document/sec-3.pdf.
5. NATIONAL POLICE COMMISSION 3RD REPORT ON ‘INDIAN PENAL
CODE’, NEW DELHI. http://ipc498a.files.wordpress.com/2008/09/firstreportnpc.pdf.
85
118
6. LAW COMMISSION OF INDIA (1989) 135TH REPORT ON ‘WOMEN IN
CUSTODY’, 1973, NEW DELHI. available at,
http://lawcommissionofindia.nic.in/101- 169/report135.pdf.
7. LAW COMMISSION OF INDIA (1994) 152ND REPORT ON ‘CUSTODIAL
CRIMES’, NEW DELHI available at, http://lawcommissionof india.nic.in /101-
169/report152.pdf
8. LAW COMMISSION OF INDIA (1969) 177TH REPORT ON LAW RELATING
TO ARREST, NEW DELHI. available at, http://lawcommissionof india.nic.in
/report/177.pdf p.
INTERNET SOURCES (DOCUMENTS)

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International Law, 5 B.C. Int'l & Comp. L. Rev. 345 (1982), at
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2. Icelandic Human Right Centre at http://www.humanrights.is/the-human-
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ntivehumanrights/therightstoliberty/(Visited on August 24, 2021)
3. 3. United Nations Human Right Commission at
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4. United States Department of State, Country Reports on Human Rights Practices -
India, (February2013) at, http://www.refworld.org/docid/53284acb14.html (Visited on
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essay.php?cref=1 (Visited on July 20, 2021)
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9. 2021).
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PAPER NAME AUTHOR

ANKUR_200102025.pdf Akash Aditya

WORD COUNT CHARACTER COUNT

43214 Words 227578 Characters

PAGE COUNT FILE SIZE

132 Pages 1.6MB

SUBMISSION DATE REPORT DATE

Excluded from Similarity Report

DEPRIVATION OF LIBERTY IN CRIMINAL JUSTICE

SUBMITTED TO: DR. RAM MANOHAR LOHIYA NATIONAL LAW

Under the Guidance and Supervision of

Dr. Prem Kumar Gautam

Signature of the Learner Name: ANKUR KUMAR

Enrolment Number: 200102025

Dr. Ram Manohar Lohiya National Law University, Lucknow

Signature of the Guide

Name: Dr. Prem Kumar Gautam

Dr. Ram Manohar Lohiya National Law University, Lucknow

(For Submission of Dissertation)

Date: Signature (with Seal)

A.I.R- All India Reporters

All- Allahabad High Court

CHRI- Commonwealth Human Right Initiative

CID – Criminal Investigation Department

CrLJ- Criminal Law Journal

CrPC – Criminal Procedure Code

FIR- First Information Report

HRC – Human Right Committee

H RWC – Human Right Watch

ILR – Indian Law Review

IPC –Indian Penal Code

MLA - Member of Legislative Assembly

NHRC- National Human Right Commission

NGO- Non-Governmental Organization

SCC- Supreme Court Cases

UDHR – Universal Declaration of Human Rights

UNHRC – United Nations Human Right Commission

U.S – United States

U.K – United Kingdom

A. K Gopalan v. State of Madras AIR 1950 SC 27 ............................................................. 50

Personal Liberty in Indian Reflection

Constitutional And Statutory Provisions Related to Deprivation of Liberty in Indian

 United declaration on human rights (UDHR)

Report of the Working Group Committee of United Nation on Arbitrary Deprivation of

The deprivation of liberty should be within Constitutional mandate as according to the

In the backdrop of the above-examined literature, the endeavour hereunder would be to

“Power tends to corrupt and absolute power corrupt absolutely”

-by Lord Atkins

What are the international norms on Deprivation of Liberty?

What is the problem of law of arrest?

Do we need to change the law?

AIMS AND OBJECTIVES OF RESEARCH

The field of Research is basically focus on Constitutional Safeguards and Statutory

CHAPTER-V: Conclusions and Suggestions. This chapter has incorporated concluding

LAW ON ARREST AND DETENTION UNDER INDIAN

Universal Declaration of Human Rights, 1948.

As a response, the Universal Declaration of Human Rights(1948) articles that provides

International Covenant on Civil and Political Rights (ICCPR), 1966.