What is Arrest in Legal Terms?
An arrest occurs when the police or an authority lawfully takes a person into custody. This action prevents the person from committing an offence or ensures their presence in court. Notably, an arrest must always follow due process of law.
According to Section 41 of the Criminal Procedure Code (CrPC), 1973, the police can arrest a person without a warrant in specific situations. These include cases where:
- A person commits a cognizable offence, such as theft or assault.
- The arrest is necessary to prevent further crime.
- The person attempts to evade legal proceedings.
What is Detention and How is it Different?
Detention refers to the act of keeping a person in custody, either as a precaution or as punishment. It can be of two types:
- Preventive Detention – Used to stop someone from committing a potential offence.
- Punitive Detention – Imposed as a result of a court’s judgment after conviction.
Unlike arrest, which typically leads to formal legal charges, preventive detention may occur even without a specific accusation. As a result, it requires closer scrutiny and stronger safeguards under the law.
Procedure to Be Followed During Arrest
The law mandates certain steps during an arrest. These procedures aim to protect the rights of the individual and ensure accountability.
In DK Basu v. State of West Bengal (1997), the Supreme Court issued key guidelines:
- The police officer must wear clear identification.
- A written memo of arrest must be signed by the accused and a witness.
- The arrested person must be informed of the grounds for arrest.
- A friend or relative must be notified without delay.
- The arrested person must undergo medical examination every 48 hours.
- The person must be produced before a magistrate within 24 hours.
These guidelines are not optional. Courts treat any deviation from these steps as a violation of fundamental rights.
Rights of an Arrested Person
Indian law protects the rights of the arrested individual at every step. Some key rights include:
- Right to be informed of the reason for arrest (Article 22(1), Constitution).
- Right to consult a lawyer immediately after arrest.
- Right to remain silent, protected under Article 20(3).
- Right to be produced before a magistrate within 24 hours.
- Right to apply for bail, if the offence is bailable.
These rights apply to every person, regardless of social status or background. Thus, authorities must respect these provisions without exception.
What is Illegal Arrest or Detention?
Illegal detention occurs when authorities take someone into custody without proper legal authority or fail to follow required procedures. Even if the person has committed an offence, failure to observe the law during arrest can make the detention unlawful.
Victims of illegal detention can file a writ of habeas corpus in the High Court (Article 226) or Supreme Court (Article 32). In many cases, courts have ordered:
- Immediate release of the person.
- Compensation for violation of rights.
- Punishment or suspension of the responsible officers.
For example, in Rudul Sah v. State of Bihar (1983), the Supreme Court awarded compensation for illegal detention after the man had been acquitted but was kept in prison.
Legal Remedies Against Wrongful Arrest
If a person suffers from wrongful arrest or detention, they have several remedies:
- Filing a habeas corpus petition for immediate release.
- Approaching human rights commissions for investigation.
- Filing a civil suit for damages.
- Requesting disciplinary action against erring officers.
Timely legal action not only ensures justice for the victim but also acts as a deterrent for future misuse of police power.