Arrest and Detention

In one line

An arrest without a warrant is lawful only where the statute allows it and the officer is separately satisfied that the arrest is necessary, and the person arrested must be told the grounds, allowed a lawyer, allowed to have someone informed, and produced before a Magistrate within twenty four hours.

The four constitutional rights

Article 22(1) gives two. No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

Article 22(2) gives two more. Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of the arrest, excluding the time necessary for the journey from the place of arrest to the court, and no such person shall be detained beyond that period without the authority of a magistrate.

Article 22(3) excludes both clauses in two cases: an enemy alien, and a person arrested or detained under any law providing for preventive detention.

When the police may arrest without a warrant

Section 35(1) of the procedure code sets out the grounds. Two of them carry the weight.

Clause (a): a person who commits a cognizable offence in the presence of a police officer.

Clause (b): a person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, that he has committed a cognizable offence punishable with imprisonment which may be less than seven years or may extend to seven years, but only if two further conditions are satisfied. The officer must have reason to believe on the basis of the complaint, information or suspicion that the person committed the offence; and the officer must be satisfied that the arrest is necessary on one of five stated grounds, namely

• to prevent him from committing any further offence;
• for the proper investigation of the offence;
• to prevent him from causing the evidence to disappear or tampering with it;
• to prevent him from inducing, threatening or promising anything to a person acquainted with the facts so as to dissuade him from disclosing them to the court or the police; or
• because otherwise his presence in court cannot be ensured.

And the officer shall record his reasons in writing while making the arrest. A proviso adds the mirror image: where the arrest of a person is not required, the officer shall record the reasons in writing for not making the arrest.

Clause (c) deals with the graver offences, punishable with more than seven years or with death, and requires credible information plus a reason to believe, but not the separate necessity test.