When you are being arrested, before taking you away, you can choose a person (friend or family member) whom the police must inform about your arrest. If the arrested person’s friends or family live in a different district or town, the police must notify them of :
- the time of arrest
- place of arrest
- where the arrested person is being held
The police can notify the relative or friend through the Legal Aid Organisation in the district and the police station of that area within a period of 8 to 12 hours after the arrest.
Upon being arrested you have certain rights, namely:
- You can ask the police to identify themselves as they should bear accurate, visible and clear identification and name tags with their designations.
- You can ask the police to call your lawyer. If you do not have a lawyer or cannot afford a lawyer, then you can ask the court to appoint a lawyer for you.
- You can ask the police to show the warrant for arrest, police report and other documents for your arrest and the police are required to show you this.
- You should verify the accuracy of the memo of arrest prepared by the police before signing it. The memo of arrest should contain the date and time of arrest and should be attested by at least one witness.
- You should be informed about your eligibility for bail for the offence by the police.
- You can ask to be examined for major and minor injuries on your body by a trained doctor and the police must comply. This examination has to be done every 48 hours if you are in their custody. This physical examination has to be recorded in the Inspection Memo and signed by the police officer. This is done to prevent violence by police while you are in their custody.
- You should get a copy of the signed Inspection Memo.
Inform
Within 12 hours of the arrest, the police officer has to inform the police control room of
- your arrest
- the place where you are being detained.
Investigate
The police will conduct an investigation and maintain a case diary during the investigation. The case diary is a daily diary kept by an officer detailing all that happens in an investigation. He will need to provide a copy of the entries in the case diary to the Magistrate.
Chargesheet
Based on the investigation the police will then file a charge sheet. The charge sheet should be filed within 90 days if the accused person is in the custody of the police.
Apart from all the rules that need to be followed while making an arrest, the police also have to keep a few important things in mind while arresting a woman. They are:
- A woman cannot be arrested after sunset and before sunrise (unless in exceptional circumstances).
- A lady constable has to be present when a woman is being arrested.
In the exceptional circumstance when the woman has to be arrested at night, the woman police officer has to take permission in writing from the local Judicial Magistrate.
However, to some extent, the Supreme Court has relaxed this rule. If the arresting officer is reasonably satisfied that if the lady officer is not available and the delay in getting the lady officer would impede/obstruct the investigation, he can carry on with arresting the woman. But he has to provide, in his arrest memo, the reasons and circumstances for his actions either before the arrest or immediately after.
While different authorities in law have the right to make arrests, they are generally carried out by the police. Please read our explainer to understand more about arrests by police.
Besides the police, the law also gives power to Magistrates, to arrest people and take them into custody, if the person has committed an offence. There are two types of Magistrates i.e. Executive Magistrates and Judicial Magistrates. An example of an Executive Magistrate is Tehsildar. A Judicial Magistrate is a judge.
Under certain circumstances, the law does permit ordinary people to make arrests if they witness someone committing a very serious crime. In such cases, the person arresting can’t detain them but instead must take them to the nearest police station without any unnecessary delay and hand them over to a police officer.
If someone you know has been detained or arrested by police or any authority who refuses to give any reasons for the detention, then in such cases, the arrested person or the relative/s of such person can file a Habeas Corpus petition before any High Court or the Supreme Court of India.
The Constitution of India grants everyone a fundamental right to ask the Court to order the detaining authority to produce the person so arrested and request the court to investigate if the arrest was legal.
This fundamental right is exercised when a person is arrested and kept in the custody of a detaining authority:
- without being informed of the reasons for the arrest; or
- is denied the right to be defended by a legal practitioner of their choice.
This fundamental right is extremely broad. Please talk to a legal practitioner to understand more of when a Habeas Corpus writ can be filed.
Anyone who is arrested and in the custody of the police should be produced before the nearest Magistrate within a period of twenty-four hours of their arrest. The police are required to produce every arrested person before the Magistrate to ensure that there have been legal grounds for the arrest of the person. Copies of all the documents including the memo of arrest should be sent to the concerned Magistrate for their record. In the instance of the accused person not being produced before the Magistrate, a Habeas Corpus petition can be filed.
The police officers handling the interrogation should bear accurate, visible and clear identification and name tags with their designations. The details of the police personnel who handle your interrogation must be recorded in a register. The arrested person will be permitted to meet their lawyer during interrogation.
In cases where the police can arrest someone without a warrant but are of the opinion that arrest is not required, they can issue a notice to such person to appear before the police or any place specified in the notice. However, the precondition to such a notice is that there must be a complaint made against him or some reasonable suspicion should exist that he has committed such a crime.
When such a notice has been issued to a person, he is duty-bound by law to comply with the terms of the notice. As long as the person complies, the police will not arrest him (unless they are of the opinion that he should be arrested and has recorded in writing that arrest is necessary).
If the person given notice by the police fails to comply or refuses to identify himself, the police officer may arrest him for the offence mentioned in the notice then the police will approach the Court to get an order to arrest the person.
There are certain crimes for which the police can arrest you without a warrant. Such crimes are known in law as cognizable offences. These crimes are usually of serious nature such as rape, murder, assault etc
If any of these scenarios apply to you, then the police do not need the warrant to arrest you:
- When you commit a crime in front of a police officer (for example at a public event or in a police station);
- When the police have received reliable information or a complaint that you have committed a cognizable crime;
- If the court has declared you as a proclaimed offender;
- If the police found you with stolen property and they suspect that you stole it;
- If you cause trouble to a police officer who is performing his duty;
- If you escape from custody of the police or jail;
- If you are suspected of deserting the army;
- If you are a suspect in a crime outside India and you are liable to be brought back to India; or
- If you were convicted of a crime in the past and have violated the conditions of your release.
The possibility of being arrested is much lesser if you have been accused of a cognizable crime with a jail time of fewer than seven years. The police should have reliable information which points to your involvement. Further, you can be arrested only if:
- you are likely to escape, destroy evidence, or influence the victim or witnesses,
- you are likely to commit yet another crime, or
- if your presence is necessary for police investigation.
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