 and Tamil Nadu Police Academy, the recorded version of this webinar will also be available and the link will be posted. Thanks for joining. Go to Mr. Sunderbhai. Thank you. Good afternoon friends, nice to see you all of you again. The topic for today, arrest may appear to be rudimentary, but we thought that this topic may be necessary for two, three reasons. First of all, it takes away the liberty of a person, and it is a fundamental right of a person that he cannot be deprived of his life and liberty except by procedures established by law. Now there are a lot of misconceptions about why an arrest is made during this investigation. So this has to be taken out and these misconceptions have to be voided. And even to this day, I can say with some statistics that this power to arrest is misused or there are arbitrary arrests or they are done in violation of the rules. Therefore, we must understand the law relating to arrest, how it evolved in our country over a period of time and certain details we tend to miss and as the saying goes, God lies in the details. We tend to miss those details, which will have a serious effect on our clients' rights. Now, we all know that under the CRPC, the arrest can be made for many reasons. There are arrests which are done in persons who have a warrant which are now dealt with in Chapter 6, Capital B of CRPC. So for today's topic, we are not concerned with those type of arrests because they have a judicial intervention if I may say so. The warrants are issued by the court therefore we shall not deal with that for the moment. Then we have these arrests without the warrant. That is the topic for today's discussion and even in that there are two types. One is arrests that are made during investigation and the arrests which are preventive in nature. The arrests that are preventive in nature are found in Chapter 11, Section 151 CRPC to be specific. Now, even in Chapter 5, there are different types of offenses or different types of acts for which arrest can be made without warrant, we will presently discuss about that. Now, this unfettered discretion to arrest and the arbitrary exercise of that discretion has been troubling the court for quite some time. We all know that misuse of the power of arrest depriving personal liberty have often been justified by the so-called societal interest it purports to take it upon. So this is where the clash comes in. Now, we have the law which is clearly spelled out as to in what manner and as to why an arrest should be made, but invariably these laws or these rules are violated very often and justified by the perverted societal interest it purports to take into account. So we all know that an arrest causes irreparable damage to a person's reputation besides causing other repercussions. Therefore, we must first understand what is the purpose of arrest during investigation. That is the first thing that we must all understand. In the last session, I shot in brief, I said about the reasons for arrest during investigation. Why this concept of arrest evolved? Because our law is that no man can be detained without a trial. That is the fundamental principle of criminal law. So why is that then you are allowing a person to be arrested? Fundamentally, there are only five reasons for that. One, the purpose of identification of the accused. Two, to ensure proper investigation. When I say proper investigation, it includes collection of evidence as well as prevention of destruction of evidence. And the number three is to ensure that he shall be available for trial. That is very important because otherwise if he doesn't have an identity, doesn't have a permanent residence, there is a possibility of his fleeing away from justice. Therefore, to ensure that is available for trial. Then fourth is to prevent him from committing other offenses, similar such offenses. And the fifth reason is to protect the accused himself from retaliation, etc. Now, these were the reasons that were found in the Police and Criminal Evidence Act 1984 that was enacted in England. This was pursuant to a report of the Royal Commission, which suggested that arrest cannot be made in all cases. And arrest can be made only in these circumstances that I just pointed out. And therefore, arbitrary arrest should be avoided. So, they, like our country, UK also had a similar issue about arbitrary arrest by the police. And therefore, they were forced to enact a law called the Police and Criminal Evidence Act 1984 for the purpose of streamlining the arrest, interrogation and detention of an accused. Now, interestingly, this particular recommendation was quoted by the Honorable Supreme Court in Jogindas Kumar's case and they suggested that we shall also follow this method. The Royal Commission, apart from saying the reasons or these are the only reasons for which an arrest can be made, also suggested another method of saying that if arrest, if the police decide that the arrest is not necessary or if there is no necessity arrest, they must issue a notice for his appearance and then use that for the purpose of investigation. So, you will find that this concept of issuance of notice is incorporated in CRPC in section 41, Capital A. That is in the year 2009. So, this was suggested as early as in the year 1994 following the recommendation of the Royal Commission that was made for enacting the British Act. All right. Now, we will discuss about 41A and its importance also. Now, the power to arrest and the necessity to arrest are two different things. Prior to 2009, the Act did not make a distinction about necessity to arrest and the power to arrest. It only conferred the power to arrest and did not specify or make any recommendation with regard to necessity of arrest. Now, they are two different things. Over the period, the law relating to arrest was evolved and both by judicial pronouncements and by legislative amendments. Now, and by virtue of all these things, we have tried to minimize the discretion for the police in effecting arrest as also to prevent arbitrary arrest. So, with this background, let us see how this law relating to arrest evolved in our country. So, only if we know the background, we will understand this principle of arrest, its object and how the misuse can be minimized. Now, in 1948, the United Nations Declaration of Human Rights in Article 19 declared that no one shall be subjected to arbitrary arrest. So, this was in 1948. India in the year 1979 ratified another covenant that is the International Covenant on Civil and Political Rights which declared that no one shall be subjected to arbitrary arrest or detention. So, this adoption of this International Covenant as you all know is by virtue of an executive action. The Supreme Court went into this and said whether or not this will have the effect of a law enacted by parliament, but yet since these rights have been adopted by an executive action and as the effect of quote, I am quoting the words of Supreme Court, this has got the effect of elucidating and effectuating our fundamental rights. They can be treated as facets of our fundamental rights. Now, therefore, the right to be not subjected to arbitrary arrest is a facet of fundamental rights. Although we don't have such a right explicitly made, it is one of the facets of the fundamental right which can be read into Article 21 of our Constitution. Now, this has been explained in PUCL's case in 1997-3 SCC 433 and Vishakha's case in 1997-6 SCC 241 where they talk about international covenants and how it is relevant for our country. Now, now that we know that this arbitrary arrest is also right not to be subjected to arbitrary arrest is a fundamental right. Now, wherever there was arbitrary arrest, the Supreme Court has come down heavily on the executive. There are a number of judgments talking about personal liberty of justice. Krishna here in the 80s, 70s and in the 90s for the first time in Jogildar Kumar's case where I was just referring to, it is reported in 1994-4 SCC 216 where they refer to the recommendation of the Royal Commission as to in what circumstances an arrest can be made and then you cannot leave completely to the description of the police and followed by DK Basu in 1997 where they made a number of recommendations. All those recommendations were suggested or became the part of suggestions by the in the 177th Law Commission report. This law commission was added by Justice Jeevan Reddy of the Supreme Court retired judge and he had suggested various reforms and amendments so as to prevent arbitrary arrests. This was and these recommendations were also some of it was incorporated from the recommendations made by the Supreme Court in Jogildar Kumar's case and also in DK Basu's case. And pursuant to this recommendation of the Law Commission in the year 2001, a number of amendments were made in chapter 5. The first of which came by the amendment act 25 of 2005, then the amendment act 5 of 2009 by which major amendments were made and which was followed by another amendment 41 of 2010. Or by all these amendments, the legislature to a large extent curtailed the discretionary power of police to arrest at least for the offenses punishable with punishment with less than seven years. Now then after what happened after 2009 when all these amendments came about which reduced the discretionary power of the police in large number of cases. When I say large number of cases, you will see majority of the offenses that we have are punishable with less than seven years. Well, there are only very few offenses in the penal code at least which are punishable with more than seven years. The after these amendments, the honorable Supreme Court in Arnesh Kumar's case, which is reported in 2014. Once again, after expressing displeasure in the manner in which arrests were being made an issued guidelines with regard to the action to be taken against police officer misusing the power of arrest besides also directing that the magistrate will be liable if they mechanically demanded the accused. Now what they did in arrest Arnesh Kumar's case was in, in addition to the amendments made in CRPC in the year 2009, they recommended a few more changes to the act and then they said this will be the law till some amendments were made by the legislature. Now let's see what Arnesh Kumar suggested and what are the amendments that changed the or which curtailed the discretionary power of the arrests. Now coming to chapter five, which is the subject for today's discussion. Now, as I told you this deals with the power of police officer to arrest mainly to power of the police officer to arrest in cases without a warrant by the magistrate. Now this also has been subdivided into three categories now personal development, it has been subdivided into three categories. The first category is cognizable offenses which are punishable with more than seven years punishment. That's the first category of division. The second category is cognizable offenses which are punishable with less than seven years and the third categories in other cases. Now in the other cases where arrests were made without warrant, these were already in the criminal posture court even prior to 2009. They were there since 1973. Now, so this is the first aspect of the what chapter five deals with in about arrests. They say in what cases arrests can be made divided into three. Now apart from that the chapter five also spells out the rights of the arrested person. This is very important. Many times we lose sight of these rights of arrested person and they are found in many details in some of the provisions. Then you have the duties of a police officer while making an arrest spelled out in chapter five. This is the third aspect and the fourth aspect is the incidental powers of the police officer while making arrests. These are the four God aspects that chapter five of CRPC deals with. There are other incidental issues that we will which are not of much significance. Anyway, we will discuss with that also. Now, like we saw there are four aspects which are dealt with by CRPC chapter five. First is in what cases arrests can be made that is divided into three categories. Second case is second aspect is the rights of the arrested person. Third is the duties of the police officer making the arrest. And the fourth is incidental powers of the police officer while affecting arrests. Now we will deal with this one by one. Now, arrest has not been defined in CRPC. The meaning of the word arrest has not been defined in CRPC. The courts have adopted the plain English language found in law dignities or English dignities to understand this word. In 1994, in Deepak Mahajan was the director of enforcement. The Supreme Court traced the origin of this word arrest and traced it to a French word called Arretil. A-R-R-E-T-E-R. Arretil meaning to stop or stay and signifies a restraint of the person. Now, in 2008-3 SCC-222, state of Oriana was the Dinesh Kumar. The Honourable Supreme Court quoted Hallsbury's Laws of England to define which defined the meaning of arrest. The meaning of arrest as per Hallsbury's Laws of England was like this. 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 circumstance of the case they are calculated to bring a tool and do bring to a person's notice that he is under compulsion and he therefore submits to the compulsion. So, it can be either by touching the person's body or it can be signified by words. You can tell a person that he is arrested and if he submits to that oral statement then that is also a deal to be an arrest. That is also an arrest. Though the word arrest has not been defined in CRPC but under section 46 as to how an arrest has to be made is spelled out in Chapter 5. Now, let us see section 46. I'll read the section 46 for you. Yes. In making, I hope all of you can see this screen. In making an arrest, the police officer or other person, when I read other person, I'll tell you the other persons also can arrest. We'll presently see who are those other persons who can arrest. 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. So, by touch, it signifies arrest and otherwise if the person himself submits to the custody by word or action, the touch is also not required. So, this is how an arrest is made. A woman, if it's arrested unless the circumstances indicate to the contrary, a submission to custody on a oral intimation of arrest shall be presumed. So, a woman shall not be touched is the idea unless the circumstance otherwise required or unless the police officer is a female. The police officer shall not touch the person or the woman for making the arrest. Now, if such person forcibly resists the endeavor to arrest him or attempts to evade the arrest, such officer or other person may use all necessary means to effect the arrest. These are incidental powers given to the police officer. Now, for the time being, we'll ignore that. Now, alright, now we saw in 46 that an arrest can be made either by the police officer or by other persons. Now, who can arrest the police officer? Who can arrest other than a police officer? The first is a private person can arrest under section 43 if a cognizable and non-bailable offense is committed in his presence. Supposing there is a murder happening in your presence or a cognizable offense, a serious offense that is happening in your presence, you don't have to wait for the police officer to come and arrest. You have a right to arrest under section 43. Now, I'll read 43 for you. Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and a cognizable offense or any proclaimed offender. So, who is a proclaimed offender? A person so declared by virtue of section 82 to 84 of the CRPC, chapter 6, chapter C of the CRPC, which deals with proclamation and proclaimed offenders. So, if a person is declared so, he can also be arrested by any person. Now, and he shall immediately take such person to the nearest police station or to a police officer. So, that is the condition for a private party. He can't detain him, he has to immediately take him to the police station. So, that is the only condition. Now, you will see 44 is an arrest by a magistrate. Now, this assumes significance because a magistrate also can arrest when a person commits an offence in his presence. But here, there is no distinction made with regard to whether it is a cognizable offence or a non-bailable offence. He can arrest a person irrespective of whatever the offence is. A magistrate can arrest a person or order any person to arrest. He can say I call somebody to arrest him on his behalf. All right. Now, this may appear to be an offence, but this is relevant to understand the concept of surrender before a magistrate and how personal to a surrender he demands under 167. We will discuss about that also. Now, apart from that, a magistrate, whether executive or judicial, may at any time arrest or direct the arrest in his presence within of any person whose arrest is competent at the time and the circumstance you issue over. So, apart from making an arrest of a person who commits an offence in his presence, he can also arrest or direct the arrest of any person whom he is competent to arrest by virtue of his position as a magistrate and for whom he can issue a warrant. That is subclass 2. Now, we saw what arrest, how arrest should be made and who all can make arrest under the CRPC. So, what are the conditions? So, the private person immediately go to the police officer. Now, the subject for discussion that we are going to concentrate on today is the three types of arrests that we contemplated in the chapter 5 that a police officer can make. In three types of cases, if I may say so, that a police officer can arrest without warrant. Now, first is cognizable offences of punishable with less than 7 years, cognizable offence punishable with more than 7 years and in other cases. Now, let us see what are the other cases in which the police officer can arrest without warrant. That is found in 41 capital A, 41 one capital A, where a cognizable offence is done in the presence of a police officer. So, there is no restriction, he can arrest immediately. So, there is no difficulty about understanding that a proclaimed offender can be arrested under 41 one C. Then, when a person is found with stolen property and commission of an offence with regard to that property, there is a reasonable suspicion that he is found with stolen property and he has committed an offence with regard to that property. He can be arrested 41 one B. That is any offence that is shot off theft. Now, if it is theft directly, there is no issue. It is a cognizable offence, it can be arrested. Then, if a person obstructs a police officer in doing his duty or escapes or attempts to escape from lawful custody, that is found in 41 one E and a deserter from the armed forces and persons who are accused of an offence outside India, which is punishable in India if committed in India and by virtue of any law relating to extortion liable to be apprehended and detained in custody in India, that is found in 41 one G. So, these are offenses which are not pending investigation. Now, please understand when I say other cases that is found in 41 C 2 41 one C 2 41 one I, these are offenses which are not relatable to offenses which are pending investigation. So, what are the offenses that we are talking about is offenses pending investigation. Now, very interestingly you will find, we all know that only in cognizable offenses a police officer can arrest a person. It is all well known, but even in non-cognizable offenses, they can arrest in certain circumstances. That you will find in section 42 subclass one, section 42 subclass one, when any person who in the presence of a police officer has committed or has been accused of committing a non-cognizable offense, refuses on demand of such officer to give his name and residence or give a name or resume with such officer is to be false, which the 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. Now, go back to what I said as to the purpose of arrest. Now, the purpose of arrest is to first fix the identity of the accused. Now, like when you see an offense being committed in your presence, immediately you go and catch hold of a person and you ask for his name, identity, etc. That is the first purpose of arrest. So, even in respect of non-cognizable offenses, if the person who commits another offense in the presence of a police officer and refuses to give his identity, he can be arrested. Contrary to the general understanding that in non-cognizable offenses, a person cannot be arrested. So, here again there are certain safeguards. If the person gives his address and identity, then he has to be immediately released. Alright, this is about 42-1. Now, under section 41-2 and by virtue of an amendment, they made it very clear that no police officer can arrest a person who has committed a non-cognizable offense. Now, you see these two provisions have to be read 41 subclass 2. 41 subclass 2 subject to the provisions of section 42. So, you have to read 41-2 and 42-2 together which says, subject to the provisions of 42, no person concerned in non-cognizable offense or against whom a complaint has been made or credible information has been received or reasons exist shall be arrested except under a warrant. So, this is clarified by way of an amendment. This was the law even prior to this amendment in 2009 but then they wanted to make it more explicit and therefore they brought in this amendment where police officers were arresting people in even in non-cognizable offenses and that is why they wanted to bring this very clearly. Now, that is of course subject to what we read section 42. Alright, these are the other cases that we just saw. Now, let us go back to section 41 which deals with these two classes of offense called the offenses. Now, let us read this provision very, very carefully. Now, this is the very important provision which will enable us to understand the what is the amendment that the legislators start to bring in. Now, any police officer may without an order from a magistrate and without a warrant arrest any person who commits in the presence of a police officer according to this we already saw. So, ignore that A. Now, B is leads to against whom a reasonable complaint has been made, has been received or reasoned suspicion exists that he has committed a cognizant offense punishable less than 7 years. Now, BA deals with, we will come back to B after we read BA, BA deals with offenses which are punishable with more than 7 years. Now, let us see BA for a moment. Now, BA deals with offenses punishable above 7 years. Now, here they say against whom credible information has been received that he has committed a cognizant offense punishable with the imprisonment for a term which makes it to more than 7 years. Whether with or without fine or rejection and the police officer has reasons to believe on the basis of that information that such person has committed the set offense. Now, what is the amendment that they brought in so far as offenses above 7 years are concerned is in the act prior to 2009 amendment in the code which is prior to 2009 amendment. It says reasonable suspicion and element of subjective satisfaction was enough so far as while affecting arrest. Now, here element of objectivity has been introduced by saying as reasons to believe. Now, reasons to believe is definitely more objective than saying reasonable suspicion. So, that is the amendment that is brought in for offenses above 7 years. Now, please make a note of that particular change. Now, let us go back to D now. D is offenses relating to punishments which are punishable for less than 7 years. This is where most of the offenses fall under this category. As I told you, there are very few offenses which fall under the category of 7 years and upwards. Many offenses like property offenses, many of your offenses relating to human body and all other offenses will fall under this category. Therefore, we will have to understand this very well. Now, let us see the conditions for making the arrest against who a reasonable complaint has been made or a credible information has been received or a reasonable suspicion exists that he has committed a cognisable offense punishable with the imprisonment for a term which may be less than 7 years or which may extend to 7 years whether with or without fine if the following conditions are satisfied namely first condition. The police officer has reasons to believe or the basis of such complaint information or suspicion that such person has committed the said offense. Now, the first satisfaction is that the police officer has reasons to believe. Now, as I told you, a reasonable suspicion is slightly lesser than reasons to believe. Therefore, they brought in this first change. Then, the police officer is satisfied that such arrest is necessary to prevent such person from committing any further offense for proper investigation and to prevent such person from causing the evidence of the offense to disappear or tampering with such evidence in any manner or to prevent such person from making any inducement, threat or promise to any person acquitted with facts of the case so as to dissuade them from disclosing such facts to the court or to the police officer or as unless such person is arrested is present in the court whenever required cannot be ensured. Now, you see all these five clauses where we read the Royal Commission where they suggested the arrest can be made only for these five reasons. Now, this was first found in Jogit Dakhumar and then by virtue of a report by the Law Commission, they suggested this and ultimately became a law in 2009. So, they say for offenses less than seven years, not only that the police officer should be satisfied that the person reasons to believe that the person has committed the offense that's the first condition. He also must be satisfied that any one of these five conditions are available for the purpose of making the arrest. If these five conditions are not satisfied, he shall not arrest even if the person has committed the offense. Now, so one of these funding conditions has to be satisfied the police officer while making an arrest. Now, and they don't stop with that. They say a police officer shall record while making such arrest is reasons in writing. This was not there in the previous court. So, here you see a police officer is obliged to record his reasons in writing for making such arrest. Now, the proviso is a very interesting proviso provided that a police officer shall in all cases where the arrest of the person is not required under the provisions of this subsection record the reasons in writing for not making the arrest. Now, please make a note of this particular proviso. The reason is not far to seek as to why they brought about this proviso. This proviso is was brought into only to ensure that once the police officer records that he's not making an arrest and thereafter if he decides to make an arrest he has to give reasons for why there was a change of mind. What was the intervening or change in circumstances which which made him to arrest in spite of recording his reasons for not making an arrest earlier. So, this is a very important amendment that was brought in by virtue of this amendment in 2009. Now, interestingly Arnaesh Kumar interprets this proviso and does not stop with it. In Arnaesh Kumar the Honorable Supreme Court says that this recording in reasons the first the decision not to arrest or to arrest must be made within the first two weeks after the affair is registered. Now, none of us will actually note this. Please note make a note of what Arnaesh Kumar said so far as this proviso is concerned. In Arnaesh Kumar they said though the time limit is not fixed in CRPC this decision as to whether an arrest should be made or not be made as to taken within the first two weeks. Now, this time limit was given in Arnaesh Kumar's case and we will take you to Arnaesh Kumar's case right away so that we will read that provision first. Arnaesh Kumar's case in Arnaesh Kumar's case the provision that I just said to you is extracted and then they say in the end to the end of Para 7. You see what I from a plain reading I'll read from Para 7.1. The plain reading of aforesaid provision it is evident that the person accused of an offense punctual recruitment for term which may less than seven years or which may extend to seven years or without fine cannot be arrested by the police officer only on his satisfaction such person has committed the offense punishable as a police officer before making an arrest in such cases as to further satisfy that such arrest is necessary to prevent such person from committing any further or for proper investigation which I read to you I will skip that. Now, let's go to 7.2. Now, here see the law mandates the police officers to state the facts and record the reasons in writing which led him to conclusion covered by any provisions opposite while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest. Now, the necessity of sending the reasons to the magistrate within two weeks is found in paragraph 11.5 will go to that 11.5 first. The decision not to please no make an order of this paragraph 11.5 the decision not to arrest and accused be forwarded to the magistrate within two weeks from the date of the institution of the case. With a copy to the magistrate which may be extended by the superintendent of police or the district for the reasons to be recorded in writing. So, it mandates on the investigating officer or the arresting officer to make a decision as to whether he would arrest or not arrest within the first two weeks off from the date of institution of the case and send the copy to the magistrate if he say if he decides not to arrest then he will record reasons for doing so and then send it to the magistrate immediately and then if that time needs to be extended it can be only be extended by the superintendent of police. So, some check is given so far as the discretionary power. Now, you see if the police officer now let us assume a case where a police officer records his reasons and sends it to the magistrate saying that I've decided not to arrest. Now, thereafter, he cannot make any arbitrary arrest. He has to definitely give reasons for changing his decision that he had made earlier and which is already recorded and sent it to the magistrate. So, this is one kind of protection that was suggested to prevent arbitrary arrest which is a very important rule. Now, next important provision is what if the police officer decides not to arrest? What if he decides not to arrest? Now, you see section 41A of CRPC and then we'll come back to Arnesh Kumar. Let's see 41A first and then come back to Arnesh Kumar which deals with section 41A. And before it's seen, I'll start reading for you 41 capital A. The police officer in all cases, very important in all cases where the arrest of a person is not required under the provisions of subsection 1 of 41. Now, this applies to both offenses punishable above 7 years and below 7 years. So, whenever a police officer issues a notice under section 41A, it means that the police officer has decided that the arrest is not required. Now, very often, we find that after the 41A notice, immediately people rush to file an anticipated ban. Now, unfortunately, this particular provision is lost sight of. A police officer in all cases where an arrest of a person is not required under the provisions of subsection 1, issue a notice directing the person against whom a reasonable complaint has been made, or a credible has been, or as he says, that he has committed to appear before him. Now, what does he do after appearance where such notice is issued to any person? It shall be the duty of that person to comply with the terms of notice where such person complies and continues to comply with this notice. He shall not be arrested. Now, please note this. He shall not be arrested in respect of the offenses referred to in the notice unless for reasons to be recorded. So, there must be some extraordinary reasons for affecting arrest after the decision that he made not to arrest. So, it is not easy for a person to be arrested once the police officer comes to the conclusion or that is the arrest is not required. Now, where such person, now 4 is important, where such person at any time fails to comply with the terms of notice or is unwilling to identify himself, the police officer may subject to such orders as may be passed by competent court in Ubiya. Now, that is also by subject to such orders. That is where there is a bail order, then he cannot do that. Subject to such orders means it could be any bail order or any other order as may have been passed by competent court in Ubiya. Arrest him for the offenses mentioned in the notice. Now, this came to be interpreted in Arreshma's case. Now, let us see paragraph 9 in Arreshma's case. Now, let us see paragraph 9 is an extract of the provision under section 41A and they reiterate in their own language. Now, ignore 41A and see the portion that is Placitum F. The aforesaid provision makes it weird that in all cases where the arrest of person is not required under 41 one of CRPC, the police officers are required to issue notice directing the accused to appear before him at a specific place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice, he shall not be arrested unless for reasons to be recorded, the police officers are opinion that the arrest is necessary. At this stage also, the conditioned precedent for arrest as we need to date under 41 has to be complied and shall be subject to the same scrutiny by the magistrate officer. So, they say it is not only the Ipsetic seat of the police officer who gives reasons but also the magistrate must independently apply his mind with regard to the reasons furnished by the police officer. Now, what is important is what they have added in addition to this safeguard is, you found in paragraph 11.4, 11.6, sorry, 11.6. Now, the notice of appearance in terms of 41A be served on the accused within two weeks from the date of institution of the case with a copy to the magistrate, which may be extended by the superintendent of police of the district for the reasons to be recorded in writing. Now, here also a time limit is fixed by the Honorable Supreme Court as with regard to notice and unless the superintendent of police extends the time limit. So, therefore, unless we are aware of this particular change that is sort to be made by Honorable Supreme Court Arnish Kumar and 11.6 and 11. The section 41A has to be read together. Likewise, you will see that 11.5 and the proviso that we saw that where they decide not to make an arrest and give furnished reasons have to be read together. So, therefore, the chapter 5 and Arnish Kumar have to be read together and they have to be treated as Bible so far as when you are dealing with arrest. Now, this is so far as the provisions relating to arrest and how the Honorable Supreme Court has modified to the benefit of the arrested person to a large extent. Now, what are the rights of the arrested person? Now, let us see the rights of the arrested person. We saw how arrest can be made and now let us see the rights of an arrested person. Now, the first important right is right to consult a lawyer that is found in that is a fundamental right under article 22 subclass 1. What is article 22 subclass 1? No person who is arrested shall be detained in custody without being informed as soon as maybe the grounds of such arrest. Now, information of grounds of arrest is a fundamental right nor shall be denied the right to consult and to be defended by a legal practitioner of his choice. Now, the moment he is arrested, he has these two fundamental rights. One, he has to be told the grounds of arrest and two, he has a right to be consulted and defended by a legal practitioner of his choice. Now, this fundamental right has now been incorporated in section 41 capital D. Now, that is the first right that we have talked about an arrested person. Now, the second right is right to have a friend or a relative informed about the arrest. Now, 41 D have explained this is just a reiteration of the fundamental right that you found in article 221. When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of a choice during interrogation, though not through a drill. So, when you are talking about interrogation, it also refers to interrogation prior to production before the magistrate and also during interrogation after the magistrate orders police custody. It refers to both the types of interrogation and a right to be consulted is a fundamental right. Now, the second right that I was talking about is right to have a friend or a relative informed. Now, that you will find in 41 D cross C. Now, procedure for arrest and duties of officers. So, when you talk about duties corresponding the right is that on the arrestee. So, 41 BC says inform the person accused arrested unless the memorandum is attested by member of his family that he has a right to our relative or a friend named Vahim to inform it of that. Supposing his arrest is made at his residence, then the memorandum of arrest shall be attested by the person living in the house or family member or a respective member of the party. If a respective member of the locality attests it, then a right then a right accrues to the person to be informed to inform about his arrest to a relative or a friend that is class C. Now, that is second right. Now, so far as women are concerned, they were right not to be arrested before sunrise and after sunset as per section 46 subclass 4. So, 46 subclass 4 says unless, save in exceptions of circumstances no woman shall be arrested after sunset and before sunrise and where such exceptional property exists a woman police officer shall be making a written report obtained the prior permission of the judicial master of first class within an offenses committee. All right. Now, this is a right so far as the women are concerned. Now, the next important right that we many of us ignore is the right conferred under section 54 the right to be examined by a medical officer. Now, this is a very, very important right. Now, this has to be done immediately after arrest. Now, this particular provision has been followed in briefs many times. Now, what does this provision say? When any person is arrested, he shall be examined by a medical officer in the service of the central of the state government. And in case a medical officer is not available by a registered medical practitioner soon after the arrest is made. Provided if the person is a female, then he shall be examined by a female medical officer. Now, the medical officer or sub cost to say is the medical officer registered medical practitioner so examine that person shall prepare the record of such examination. Mentioning there in any injuries or marks of violence upon the person arrested and the approximate time when such injuries or marks have been inflicted. So, this is very, very important. Supposing at the time of arrest, there is an injury on the person that has to be noted and a report has to be made by the medical officer and the copy of the report must be given to the arrested person. Now, again, the reasons for this particular provision is also not difficult to understand because now when the person is followed with some injury marks or injuries at the time of arrest and during after his interrogation in the first 24 hours and his protection before a match state, there are a few more injuries. Then you have a record to show that these injuries have been inflicted during the interrogation. So, to prevent custodial violence and custodial torture, this particular right has been conferred. Now, many cases this particular right is being ignored, but however this right is given when the person is sent for police custody. When a person is sent to police custody, they ensure that there is a medical examination prior to his interrogation and there is another medical examination after interrogation. So, this has to be ensured immediately after arrest. So, this is something that we love to as lawyers to ensure that any person who is arrested must be immediately be examined by a medical officer. So, this is a very important right. Now, another new interesting provision was brought in in the chapter which says in 60 sub capital A, it says no arrest shall be made. Now, this is implicit in the language of chapter 5, but then they wanted to make it explicit by saying no arrest shall be made except in accordance with the provisions of this court or any other law of the time being forth providing for arrest. Now, what is the effect of this express statement is that if there is a violation of then then the arresting officer can be penal punished for offenses under the penal code. That is explained in DK Basu. We will presently see what are the consequences and what are the remedies that are available to arrestee if these conditions are violated. Now, the duties of a police officer making the arrest are one. So, when I talk about duties of a police officer that is a corresponding right for the arrestee. Now, section 41B, let us see section 41B. Every police officer while making an arrest shall bear an accurate visible and clear indication of his name which will facilitate easy identification, prepare a memorandum for us which shall be attested by at least one witness who is a member of the family of the person or the member of the family this we saw and then inform the person under the memorandum. Now, what is important is bear an accurate visible and clear identification of his name which will facilitate easy identification. So, person making an arrest must have an identification in his, he must have a badge containing his name which will facilitate his identification. This is very, very important. You can't go and arrest a person without informing him the police officer's name, the arresting officer's name. So, this is some important amendment. This was suggested in D.K. Basu to also to bring about responsibility on a particular person, to pin responsibility on a particular person who violates the disease. So, that is the reason why D.K. Basu suggested and this became amended in, brought in by an act by an amendment in 2009. So, these are duties of a police officer. Then you see section 50 talks about the police officer's duty to inform the arrested person, the 50, every police officer or other person, arresting any person without warrant shall forthwith communicate to him full particulars of offense for which he is arrested or other grounds of arrest. Where a police officer arrests without warrant any person other than a person of, he shall also inform, all right. Now, there are two things that the police officer is supposed to do. Immediately communicate to him the full particulars of offense that is section 50. Now, here there is a practical hitch. Now, the hitch is invariably the police say that they have communicated. The accused says that he has not been communicated. So, there must be an amendment which suggests that like you saw in section 54 where a medical officer will examine and furnish a copy of that report to the accused. Now, here also there must be a mechanism where the grounds of arrest is communicated in writing to the accused person and by an appointment and the copies furnished to the accused person. So, that is very important. Otherwise, this fundamental right that you saw in article 221 will be violated. So, this is 50. Now, 50 is also obligation of the person making to inform of the arrest to a nominated person. Every police officer has a duty bound to inform the factum of arrests as also the place where the arrested person is being held to friends relative. So, it can't be kept as a secret. No, they can't say we were arrested and taken to some undisclosed regression that is not correct. That is a right that is confirmed under section 58. The person whom the arrested person says has to be informed either friend relative or any other nominated person has to be informed about the factum of arrests and also the place where he is kept in. This is another duty of the police officer. All right. Now, what are the incidental powers? We will quickly run through the incidental powers of the police after making the arrest. Now, police officer that we saw in section 46 that he has a power to exercise force if the arrestee resists or attempts to evade the arrest that he will find in section 46. Now, in 47, the police officer has the right to enter any premises and also break open any door or window to check whether the accused person or the person who is wanted is available or after he is allowed permission if he is detained. If the police officer is detained, he has a right to break open and come back and relieve himself. So, that is, these are some of our interesting provisions and police officer also can pursue an arrested person anywhere in India. There is no restriction. There is no division about of stating and pursue a person anywhere in India. There are of course certain rules. State wise, we say you have to inform the local police etc. Now, he has a power to search the person under section 51, power to seize offensive weapons under 52, power to subject the accused for medical examination. Now, under section 53 and 53A, it is a different type of medical examination. So, we saw 54, it's a right of the accused to be examined. 53 is the power of the police officer to subject a person to medical examination for the purpose of getting evidence for is the offense that is being investigated. So, 53 and 53A deals with the offense if the offense is accused of rape and 53 deals with other offenses. So, these examination and 54 shall not be confused. That is the right of the accused and this is the power of the police officer to subject the person to medical examination for the purpose of investigation and collecting evidence. Now, 54A is another amendment which says that the court, the police officer can make a request to the court and direct the accused person to subject himself to identification for identification parade etc. Now, we saw the some of the rights, powers, duties and what manner the arrest has to be made and read along with Arnash Kumar's case. Now, what if these violations are made? Now, the invariably arbitrary arrest in spite of all this, there are still arbitrary arrests. So, how do we counter that? What is the action? What is the remedy that a arrested person has? Now, there are 3-4 remedies that are suggested by the honorable Supreme Court. In DK Basu, for the first time, they said there cannot be any wrong without a remedy. So, when there is a wrong, there obviously has to be a remedy that is our maximum, it would be just a remedy. Therefore, there has to be a remedy. In DK Basu, they said that you can prosecute a police officer for the offenses under section 220, 330 and 331 of IPC. 220 is confining a person. For example, let me read 220 for you quickly. Now, extorting and forcing a person to confess. Now, 30 and 331 also can be involved is what the honorable Supreme Court says. For prosecuting a police officer who voluntarily causes hurt for the purpose of extorting from the sufferer, any person into any confirmation, any confession or information. So, the 330 and 331 deals with causing hurt and causing grievance hurt for the purpose of extorting confession. So, this is one remedy under the penal law. Now, the second remedy is, now you saw just now 60 capital A which says no arrest shall be made except in accordance with the provisions. So, a violation of that particular statement or express provision will make a police officer liable under section 166 also. That is also a non-cognizable offense. You can prosecute them by filing a complaint. Now, what are the other remedies? Now, the other remedies that are suggested by the court is, we saw that not being subjected to arrest is a fundamental right. Now, if that is violated, you can move the high court or the Supreme Court for compensation is on article 32226 for violation of fundamental right. In DK Basu case, this is what the honorable Supreme Court said. The old doctrine of only relegating the agreement to the remedies available in civil law suit limits the role of the courts too much. As the protector and the custodian of the indivisible rights of the citizen, the courts have the obligation to satisfy the social aspirations of the citizens before the court and the law are the people expected to respond to their aspirants. A court of law cannot close its consciousness and aliveness to start realities. Near punishment of offender cannot give much solace to the family victim. Civil action for damages is a long drawn and a cumbersome judicial process. Monetary consideration for retrosal by the court finding the infringement of indivisible right to life of the citizen is therefore useful and at times perhaps the only remedy. So, in DK Basu, they recognize this public law remedy of awarding compensation for violation of fundamental rights. Now, this, this originated first in Rudolsa's case in 1983, then followed in Nilabati Baira in 1993 to SEC 746. Then in Beem Singh in 1985 for SEC 677. And the latest of all the judgment is Rini Johar was a state of MP 2016-11 SEC 703. Now, this is the second type of remedy that a person can have. Besides a private law remedy of prosecuting or filing a civil suit for false arrests, you can file a civil suit for claiming compensation for false arrests, which is a thought. Now, these are some of the remedies. Now, besides all these remedies, the Supreme Court in Arnes Kumar says in paragraph 11.7 and 11.8 says that where the police officer fails to comply with the directions shall apart from rendering the police officers concerned live for department action. They can, you can complain to the higher officer for department action. They shall also be liable for punishment for contempt of court. Now, this is very important. And in a few cases, apologies were reported in the Madrasa court, contempt action was initiated somewhere let by taking apology, etc. Now, so contempt also can be initiated directly before the High Court having territorial jurisdiction. If an officer violates any of the provisions, this is an extraordinary remedy provided by the honorable Supreme Court in Arnes Kumar's case. Then they also suggested that a magistrate authorizing detention on the basis of a false arrest or arbitrary arrest also should be made punishable and department action should be taken. Now, the citation that I quickly went through, I'll, DK Basu is reported in 1997, one SCC 416. Rudalsha, which talked about public remedy is 1983, four SCC 141. Nilabati Baharas case, which reiterated this public remedy and payment of compensation is 1993, two SCC 746. And being seen is 1985, four SCC 677 and Rani Johar is 2016, 11 SCC 703. So with this, I will, this is about arrest and the remedies that you have for arbitrary arrest. So I stop here and take questions. I think I've exceeded the time limit already. Sorry about that. Can we take questions? Can I go to chat box and see? Yeah, I can read that. Is there any provision to punish the magistrate who made mechanical remark? Yes, the 11.7 says department action 11 points, 11.7 of Arnes Kumar's case is department action can be taken against the magistrate for mechanical remark. If there is an arrest warrant issued by the, on the culprit's name, will that warrant also act as a search warrant in his home or should he get a separate warrant for that? No, search warrant so far as the, to find out where he is, is automatic is part of the arrest warrant. But search warrant for other objects or which are objects of trial, that has to be by a separate warrant. Usually it is seen that for compliance of section 41 sub clause, clause one, sub clause B, police officers mechanically puts a tick mark on all the five reasons of arrest in the performer for compliance of section 41. How do you deal such a situation during the bail to show that the arrest is arbitrary? Yes, now that tick mark has to be followed by reasons and the magistrate has to satisfy himself about the reasons. And in fact, that reasons has to be discussed and you're right, they don't discuss those reasons that is kept as a secret by the police officer. And that has to be demanded. Saying that this reason is, there is a reason for specifying this particular provision where they say reasons has to be recorded and therefore it has a copy has to be given and you can attack those reasons. And that contempt here would be of this Supreme Court or High Court as procedure and power for one or two are different. Punjab and Arayana in the High Court refused to take cognizance of a contempt for violation of the Anesh Kumar statement saying that it is a contempt of Supreme Court. No, no, it says High Court, it has to be moved to the High Court. That may be wrong because specifically says the jurisdiction of High Court can be moved. In fact, Madras High Court has taken cognizance of a couple of contempt. Is the police officer authorized to take sumo to action under the Gunda Act? No. Gunda, he has to make a recommendation. The Gunda Act prevention is already by the collector executive master. Police officers can only make a recommendation. This is from YouTube. In one case, SHO file FIR accuses an old person so he is not filing the charge sheet for last two years. Is there any time restriction or what should be done? Here in Madras, we file a petition under section 482 for a direction to register or file a charge sheet saying that so that is the provision that we do. Same here in the Punjab and Arayana. If an accuser is arrested and demand for PCR and should the PCR he is admitted to the hospital and remains there for 15 days. What is it? PCR? What is the full form? Prevention of corruption maybe. Yes, yes, he can be arrested. It's like any other offense he can be arrested. He can't be sent to PCR. No, I don't think so. He can't be sent to PCR then what is the remedy for police? He will ask. All these rights are as the rest is made legally. What do they say if they call the, call to the police station and make them sit from morning to evening? That is wrong. Even illegal detention is wrong. So under 41A, they have to issue a notice and call for inquiry. That is the amendment that we have. PCR means police custody. I will read that question again. If an accuser is arrested and demanded for police custody and during the police custody he is admitted to the hospital and remains there for 15 days. Can't he be sent to the police station? Then what is the remedy for the police? He can't be sent. There is no answer to that in CRPC. He has to be sent only in the first 15 days. When the accuser is forwarded to the nearest magistrate by the police? As for section 42 sub-3 of CRPC, what order will the magistrate pass in such a case? He has a right to pass an order of remand. Because under 167, the nearest magistrate is equally empowered to apply his mind. That is what you find in Gautam Nawlaka's case. He will say that he has to be remanded and I am satisfied about remand. And then direct him to the police before the jurisdiction magistrate. Whether under section 41 sub-close A, notice is the applicant from 2009 amendment or from the Anesh Kumar's amendment? Anesh Kumar came later in 2014. 2009, he separately came from 2009. These are all the questions. Thank you. We are so thankful for again Mr. E.O. Prakash who has just to connect him. He will ask sir to unmute himself for a minute. Last question he says, what is the difference between a notice under section 41A and section 42? Let me see 62. 62 talks about someone's house out. What is he talking about 62 of CRPC? What is the difference between 41A and 62? 41A is a direction to the accused to appear before the police officer. 62 is someone's house out, served by a police officer. Two persons. So there are two different things. You can't be compared. It deals with process to compel appeal. Someone's house out or the person to whom it has been issued. That is 62 and 41A deals with a different subject altogether. If at the end of the prior, it is proved that the arrest is illegal. What will be the consequences? There are no consequences provided in the law. But you can always prosecute for malicious prosecution. There is a provision which says by the person who is trying, the lemma judge who is trying also can recommend action. But unfortunately, these are not put to practice. Nobody wants to pursue this once he is out of the system. He doesn't want to get into the system again through another method or through another door. He just wants to get out of the system. So this has not been tried and tested. Thank you, Mr. Sundar Mohan for educating us on a very interesting subject and a very essential subject also. Most of the times we see that whatever you have said on rules and paper being reached with not much of humidity. But in any case, educating the legal fraternity on these aspects is very, very important. Thanks Mr. Kass for having given this platform for a wonderful, educative system. Thank you very much. Thanks for all the participants. Thank you to all those participants who are watching us live on the Facebook, YouTube, as well as on this platform. Keep wearing your mask and maintain social distancing before we leave for the day. And thank you, Mr. Sundar Mohan. Thank you. As Mr. Umprakash just said that the topic was quite basic but not only for the judicial exams and for day to day practice, especially for the youngsters and the lawyers who want to understand or venture into this field of law. They will learn quite a lot of nuances in the suspect. And tomorrow again, we take a basic aspect, power autonomy, special power autonomy and general power autonomy by Mr. Suryaprakash Narendrao from Bangalore. Do join us tomorrow. Thank you everyone. Stay safe. Stay blessed. Thank you.