The Supreme Court recently issued a statement indicating its intention to definitively resolve the legal question of whether an arrest is rendered invalid in all instances by the failure to provide the accused with the grounds for arrest. Justices BR Gavai and KV Viswanathan addressed the issue during the consideration of a petition contesting the arrest of Mihir Rajesh Shah in the Worli BMW hit-and-run case resulting in the death of a 45-year-old.
Despite acknowledging the defendant’s claim of inadequate notification regarding the grounds for his arrest, the Bombay High Court had decided against overturning the arrest. The High Court had determined that Shah’s awareness of his arrest was evident from his apparent flight from the crime scene and alleged attempt to conceal evidence, specifically the vehicle’s license plate. Consequently, the High Court determined that the Supreme Court precedents invalidating arrests lacking written grounds were inapplicable in this instance.
However, the Supreme Court declined to review the High Court’s dismissal of Shah’s petition, with the judges finding no basis for intervention. During the hearing in the Supreme court, advocates Rebecca John and Jay Bhardwaj, representing Shah, said the High Court’s observations amounted to pre-trial conviction.
Nevertheless, the top court acknowledged the presence of substantial constitutional questions, specifically concerning the interpretation of Article 22(1) of the Constitution. Article 22(1) stipulates that any individual under arrest must be promptly apprised of the reasons for their apprehension and afforded the right to legal counsel of their choosing. “Though prima facie we do not find that an error is committed by the Division Bench of the High Court, we find it appropriate to entertain the matter so as to consider the legal position,” the Court said.
The Court further said that it is needless to state that the observations made in the impugned order would not come in the way of the petitioner in any of the proceedings, including trial and application for bail, and if such proceedings are taken out, the same would be decided in accordance with the law on its own merits.
The Constitution and the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, provides certain rights to the arrested person. They are as follows:
- The arrested person has the right to remain silent during interrogation. He cannot be compelled to say anything in favour of or against himself. According to Article 20(3): “No man accused of any offence shall be compelled to be a witness against himself.”
- As per Section 58 of the Bharatiya Nagarik Suraksha Sanhita 2023, any person who has been arrested without a warrant shall not be detained in police custody for over 24 hours excluding the time necessary for the journey from the place of arrest to the magistrate’s court, unless special orders have been passed by the magistrate under Section 167.
- The right to get information is a fundamental right. The police should inform the arrested person about the grounds for detainment. As per Section 48 of the Bharatiya Nagarik Suraksha Sanhita, 2023, any person who has been arrested without a warrant should know the full details for which he is being arrested or other grounds for such arrest.
Other related issues involve the fact that there are many categories of offences; one of them is bailable and non-bailable offences. The arrested person has the right to get bail in bailable offences. Moreover, As per Section 48 of the Bharatiya Nagarik Suraksha Sanhita, 2023, if any person is arrested without a warrant in bailable offences, the police officer has the duty to inform the arrested person that he is entitled to be released on bail and that he may arrange for sureties on this behalf. Article 21 of the Constitution guarantees the right to personal liberty which includes the right to a speedy and fair trial. The State should not keep an arrested person in jail unnecessarily.
As per Section 340 of the Bharatiya Nagarik Suraksha Sanhita, 2023, any person accused of an offence before a criminal court, has a right to be defended by a pleader of his choice. Moreover, as per Article 22(1) of the Constitution, an arrested person has the right to know the grounds for arrest and he shall not be denied the right to consult and to be defended by a legal practitioner of his choice. Moreover, Section 53 of the Bharatiya Nagarik Suraksha Sanhita, 2023, says that when any person is arrested, he shall be examined by a medical officer in the service of central or state government, and in case the medical officer is not available, by a registered medical practitioner soon after the arrest is made.
Similarly, an arrested person may inform his relative or friend about the fact, time and place of the arrest. If the arrest is invalid on account of breach of procedure or violation of any other right or if the custody is not passed within the framework of the law by a competent magistrate who has jurisdiction over the issue, the person so detained can file a writ of habeas corpus under Article 32 or 226 of the Constitution. However, it must be noted that a writ does not lie against legal custody, no matter what rights may have been violated before the lawful custody.
The Bharatiya Nagarik Suraksha Sanhita, 2023, protects the accused’s right to fair trial, legal representation and protection against unlawful detention or coercion. It allows up to 15 days of police custody, which can be authorized in parts during the initial 40 or 60 days of judicial custody. In case of arrest of infirm or aged persons, the police cannot arrest a person who is infirm or above 60 years of age without the prior permission of an officer not below the rank of a DSP.
Joginder Kumar vs State of UP 1994 highlights important issues regarding the rights of individuals in the context of arrest and detention. The decision in this case addresses the fundamental right of personal liberty, due process and the protection against arbitrary arrest. The decision of the Supreme Court in this case gave clear guidelines to safeguard the rights and ensure that the powers of police officers are exercised within the framework of the law and respect for individual dignity. For effective enforcement of these fundamental rights, the Supreme Court issued the following guidelines:
- An arrested person being held in custody is entitled, if he so requests, to have one friend, relative, or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
- The police officer shall inform the arrested person when he is brought to the police station about this right.
- An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.
Case study
In Joginder Kumar vs State of UP 1994, the petitioner was a young man of 28 years who had completed his LL.B and had enrolled himself as an advocate. The Senior Superintendent of Police (SSP), Ghaziabad called the petitioner in his office for making enquiries in some cases. The petitioner on January 7, 1994, at about 10 o’clock appeared personally along with his four brothers before SSP. The SSP kept the petitioner in his custody.
When the brother of the petitioner made enquiries about the petitioner, he was told that the petitioner will be set free in the evening after making some enquiries in connection with a case. On January 7, 1994, at about 12.55 pm, the brother of the petitioner being apprehensive of the intentions of the SSP, sent a telegram to the chief minister of UP apprehending his brother’s implication in some criminal case and also further apprehending that the petitioner may be shot dead in a fake encounter.
In spite of frequent enquiries, the whereabouts of the petitioner could not be located. On the evening of January 7, 1994, it came to be known that the petitioner was detained in illegal custody of SHO, PS Mussoorie. On January 8, 1994, it was informed that the SHO was keeping the petitioner in detention to make further enquiries in some cases.
So far, the petitioner had not been produced before the magistrate concerned. Instead, he directed the relatives of the petitioner to approach the SSP, Ghaziabad, for release of the petitioner.
On January 9, 1994, in the evening when the brother of the petitioner along with relatives went to PS Mussoorie to enquire about his well-being, it was found that the petitioner had been taken to some undisclosed destination. Under these circumstances, the petition was preferred for the release of Joginder Kumar, the petitioner. The petition was filed under Article 32 of the Constitution.
—By Adarsh Kumar and India Legal Bureau