After Arrest Procedures Under Code Of Criminal Procedure, 1973

By | August 13, 2019
After Arrest Procedure

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After Arrest Procedures Under Code Of Criminal Procedure, 1973 | Overview

Introduction

Criminal Procedure is all about pre-trial, trial and post-trial procedures. Nevertheless, the pre-trial period is the most significant which determines the evidence to be available for or against the accused. Thus, elaborate provisions dealing with after arrest procedures under the Code of Criminal Procedure, 1973 have been laid down to ensure that material evidence is collected with expediency. Further, custodial violence is a by-product of pre-trial investigation and more specifically arrest. Thus, after arrest procedures also ensures surveillance on the authorities making the arrest.

Arrest means the “deprivation of a person of his liberty by a legal authority or at least by apparent legal authority” [1] e.g. a private person authorized by a legal authority. An arrest is necessary under five circumstances:

  • For ensuring the presence of the accused at the trial if there is a likelihood of his absconding,
  • As a means of taking precaution or preventive step,
  • When a person accused of committing a non-cognizable offence denies giving his correct name and address to the police,
  • When the police are impeded during discharge of any official function,
  • When re-arresting a person is necessary because either he escaped from custody or his first arrest was made by a private person [2].

To meet these purposes, the Code of Criminal Procedure, 1973 provides certain specific procedure and guidelines to be followed during the arrest.

Now, imagine a thief who has just stolen from a house and is running in the dark to escape from the police. He does not see a pit, falls in it and breaks his leg. Due to this, he is also caught by the police and when taken to the Magistrate, he claims that the police officers broke his leg by torturing him. In a country like India where custodial torture is not unheard of, it will not be difficult for the Magistrate to trust him. Therefore, the Code provides certain procedures to be followed post-arrest to ensure the legality of the arrest and also protect the honest police officers from false claims or hidden weapons.

Post-arrest Procedures

Sections 51 to 54, 58 and 59 of the Cr.P.C deal with after arrest procedures. These provisions can be divided into five heads for easy comprehension.

Section 51 empowers the police officer or any other person authorised by law to conduct a search in any place where there is a likelihood of discovering any evidentiary material. If such search is to any avail and the searching authority discovers any document, material or thing, it can seize them according to Section 102 of the Code and produce them in court to present on record[3].

Though the section does not require the search to be conducted in the presence of witnesses, the rules made under the Police Act, 1861 direct that “the search should be made in the presence of witnesses”[4]. The witnesses like in Section 165 of the Code, should be any individuals who are “independent and respectable members of the locality”[5].

According to §165 (3), the police officer has the power to seize any article in the possession of the accused person who has been arrested under the provisions of the Code and searched and the police officer shall give to the accused a receipt mentioning the articles seized and their numbers so that the same may be collected by him or his family after the investigation or trial as the case may be.

The second clause of the provision provides a special requirement for the search of an arrested person if she is a female. Such a search can be made only by a female police officer with strict regard to decency. The non-compliance or any irregularity in following the procedure laid down in this section does not vitiate the trial. For instance, in Mahadeo v. State[6], the failure of the police to take out a recovery memo of the seized articles was held to be not vitiating the trial.

  • Seizure of Offensive Weapons:

According to §52, it may be noted that the section empowers any person making an arrest under the Code to seize any offensive weapon from the possession of the arrested person. After such weapons are seized, the police are required to prepare a recovery memo with the detail about the weapons, any part of the weapon that is missing or is severed from it or is recovered separately from the weapons[7]. For instance, the recovery of a gun should be recorded along with any bullet or shell of the bullet found with it.

  • Medical Examination of the Arrested Person:

Section 53 and 54 of the Cr.P.C provide for medical examinations. The code entails two kinds of medical examination. First, under Section 53, medical examination of the accused by a registered medical practitioner[8] to ensure that anything can be found from the examination of the body of blood of the accused that may prove to be strong evidence in court. For e.g., if a victim claims that the accused was very drunk when he attacked, the discovery of alcohol in the blood can connote sufficient evidence.

The second examination is, conducted under Section 54, of a person arrested for the purposes of investigation or interrogation and such examination has to be conducted by a senior doctor in the service of the government known as ‘medical officer’.

Section 53 of Cr.P.C empowers senior police officers to compel the accused person in custody to submit to the medical examination. Now, questions have arisen whether this provision is violative of the right against self-incrimination under Article 20(3) of the Constitution of India.

The landmark case with respect to “self-incrimination is State of Bombay v. Kathi Kalu Oghad[9]. The Bombay High Court relied upon the principles laid down in Oghad by the Supreme Court and held that “Section 53 is not violative of Article 20(3) and a person cannot be said to have been compelled “to be a witness” against himself if he is merely required to undergo a medical examination in accordance with the provisions of Sections 53[10].

The power to compel the accused to submit to a medical examination is hedged in various conditions. The object of this section is to “balance the individual’s interest and society’s interest” [11]. In Bhabani Prasad Jena v. Orissa State Commission for Women[12] and Neeraj Sharma v. the State of U.P., the courts held that “examination of the person under Section 53 cannot be restrictively confined only to the examination of the skin or what is visible on the body” [13]. It may include X-Ray, blood test, serum test, etc. that may result in the discovery of any evidence.

By giving an elaborate explanation as to the meaning of “examination” and “registered medical practitioner”, the Amendment to the Code in 2005 inserted Sections 53A, 54(2) and 54A laying down the procedure for the conduct of the medical examination. The use of the term “shall” under Section 54, makes it “mandatory for the arrested person to be examined by a registered medical practitioner soon after the arrest”[14].

  • Identification of the Arrested Person:

After the police arrest one or more suspects, it is necessary that the suspect is being identified either by the victim or any witness who saw the person committing the offence or saw him at the scene of the offence. Section 54A provides for that. This process is generally called the ‘test-identification parade or T.I. Parade’ whereby the police officers prepare a lineup of the suspects along with other persons with similar built and look to ensure that the accused from amongst the suspect is identified with surety.[15]

It may be noted that no specific procedure to conduct the identification has been provided but the power is left to the court to decide the procedure. Thus, the parade can be conducted in the police station or the office of the Executive Magistrate, except when the identifying person is physically or mentally disabled. The person identifying the accused is always kept hidden from the suspects to ensure his/her safety. It is believed that T.I. the parade is not completely accurate because when two similar looking persons come together, the witness can be confused but, however, it is still an important step to dissect the accused from several suspects.

  • Report of Arrest to be sent to District Magistrate:

Section 58 of the Code requires a police officer to send the report of all cases where the accused person(s) is “arrested without a warrant within the local limits of his police station to the District Magistrate or if the District Magistrate directs, to the Sub-divisional Magistrate”[16]. The object of the section is “to keep the District Magistrate, etc. informed of the situation regarding grave offences”.[17] The administration of police in a district is under “the general control and direction of the District Magistrate”[18]. Therefore, report under this section would enable him to see whether the police are exercising their powers appropriately or not.

  • Discharge of Arrested Person only on Bond or Bail:

According to Section 59, once a person is arrested by the police, s/he can be enlarged only after taking a bond or bail for his appearance before a Magistrate. The police cannot discharge him on their own responsibility without the order of a Magistrate. The special order of the Magistrate contemplated in this section is an order under Section 167 of the Code which prescribes procedure when “the investigation, according to the police, cannot be completed within the stipulated period of 24 hours” [19].

Conclusion

The above mentioned procedural requirements relate to after arrest procedures. The effect of non-compliance of these procedures differ from provision to provision, generally, non-compliance of these procedures does not affect the validity of the trial or the investigation.

These procedures are multi-purpose since they create an obligation upon the police, they foster rights of the arrested person, further, these procedures facilitate investigation and also assists the police officer against any false accusations in future.


[1] Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure 101 (18th ed. 2006).

[2] R.V. Kelkar, Lectures on Criminal Procedure 24 – 25 (6th ed. 2017).

[3] 1 D.D. Basu, Code of Criminal Procedure, 1973 235 (6th ed. 2017).

[4] K.N. Chandrashekaran Pillai, R.V. Kelkar’s Criminal Procedure 76 (6th ed. 2018).

[5] §165, Cr.P.C, 1973.

[6] Mahadeo v. State, 1990 Cri. L.J 858 (All).

[7] Kamakshya Prasad, How to Arrest, Prosecute, Defend, Acquit and Convict 46 (1st ed. 2005).

[8] Pillai, supra note 3 at 77.

[9] State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808.

[10] Anil Lokhande v. the State of Maharashtra, 1981 Cri. L.J 125 (Bom).

[11] Bhabani Prasad Jena v. Orissa State Commission for Women, AIR 2010 SC 2851.

[12] Bhabani Prasad Jena v. Orissa State Commission for Women, AIR 2010 SC 2851.

[13] Neeraj Sharma v. the State of U.P., 1993 Cri. L.J 2266 (All).

[14] Basu, supra note 2 at 257.

[15] Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure 143 (18th ed. 2006).

[16] §58, Cr.P.C, 1973.

[17] Law Commission Report, No. 37, 1968 para. 206.

[18] Code of Criminal Procedure, No. 2, Act of Parliament, §4, 1973 (India).

[19] Pillai, supra note3 at 81.


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