Joginder Kumar v. State of U.P. (1994)and D.K. Basu(1997) are landmark judgements in India pertaining to arrest. In Maneka Gandhi case ,Hon’ble Supreme Court of India opined that every individual have right to just, fair and impartial trail and dignity of individual is respected under constitutional laws.
The Article 21 of the Indian Constitution asserts the importance of due process. It says: “no person shall be deprived of his life or personal liberty except according to procedure established by law”.
- Securing a person who is suspect of crime or trial of crime
- Preventive or precautionary measure to stop committing a crime
- For obtaining correct name &address[if person refuses to give address]
- If person obstruct police man on duty, while discharging duties.
- Taking person under custody, who has escaped from police or prison?
- A police officer may arrest a person without warrant [cognizable offences or apprehension of committing a crime or preventive measure for public order or other purposes],
- Police officer in charge of police station may arrest a person as preventive measure without warrant
- A private person
- Any magistrate may arrest a person without warrant
- A person can be arrested with or with out warrant from magistrate
- Power to use force, there is resistance or evades arrest.
- Power to search place acting under warrant power.
- Power to arrest &pursue such person any place in India
- Power to seek assistance of any person for arrest or preventing the escape of person.
- Power to re-arrest escapee
According to Jerome Herbert Skolnick,”in dealing largely with disorderly elements of the society, some people working in law enforcement may gradually develop an attitude or sense of authority over society, particularly under traditional reaction-based policing models; in some cases the police believe that they are above the law”
Police brutality and uncivilised behavior includes
- Rights to a fair trial& Right to legal assistance :
- Article 6 of the ECHR' (which protects the right to a fair trial) applies to the pre-trial stage of criminal proceedings:
- A suspect must be able to benefit from the assistance of a lawyer already at the initial stages of police interrogation and as soon as he is deprived of his liberty, irrespective of any interrogation.
- Protection against ill-treatment in custody& prevent intimidation, including threats and abuse, notably by police in the crucial period immediately following arrest.
- Family members and employers to be informed of the detention
- Detained person is a non-national, it is appropriate for the consular authorities of the person's home state to be informed.
- Foreign suspects and defendants are an easily identifiable vulnerable group who sometimes need additional protection such as is offered by the Vienna Convention on Consular Relations (VCCR)
- what activities a lawyer can carry out on behalf of his client;
- waiver/mandatory defence;
- notification of the custody to the detainees relatives and consular authorities; and
- legal representation in European Arrest Warrant (EAW) cases.
The Hon'ble Supreme Court of India cautioned the police for indiscriminate use of arrest , preventive custody ,use of force during agitations and also warned custodial death &extra -judicial killing [fake encounters]