Implications And Remedy Of Wrongful Arrest

The power of position has always been misused or abused by the authorities in India. Often to take revenge or harm reputations or to create obstacles such as in the time of elections, opposite parties make allegations which results in wrongful arrest by the authorities.

This article has described the scenario of wrongful arrest in India along with the statutory provisions which are made to safeguard and protect the victims of wrongful arrest. While discussing the rights of arrested persons in the light of wrongful arrest, remedies available to the victim of wrongful arrests have been emphasized in this article.

When an individual is held wrongfully against their will or is taken into custody by a legal authority such as a police officer is known as a wrongful arrest.

In India, the rule of ‘innocent until proven guilty’ is followed. This implies that the burden of proving any allegation made against an individual lies upon the prosecution. The judicial administration has the duty for ensuring the security of basic human rights as well as upheld those rights.

Every individual including an accused or arrested person has certain rights as granted by the Constitution of India. The accused can seek protection from criminal liability. The motive behind this provision is to safeguard the rights of an accused or arrested individual as they are more vulnerable to their rights being violated. Provisions relating to the rights of arrested persons have been laid down in the Code of Criminal Procedure, 1973 (CrPC). The Constitution of India also provides protection against arrest and unlawful detention in certain cases under Article 22.

The National Police Commission of India issued a report stating that approximately 60% of arrests made by police officers are unnecessary as well as unjustified. The procedures laid down under the CrPC as well as the provisions of the Constitution of India have also not been complied with by the police officers while making arrests. 

A wrongful arrest can otherwise be referred to as an illegal arrest. The most important ingredient for constituting wrongful arrest is the absence of any probable cause along with non-abiding of the statutory procedures. Any unlawful restraint of personal liberty of an individual or freedom of movement also constitutes wrongful arrest made by the authority purporting to act under the law.

The illegal or wrongful arrest comes under the category of criminal wrong which requires compensatory damages to the victim. However, the damages will only be awarded by proving the illegality of such arrest.

The rights of an arrested person under the Code of Criminal Procedure are-

1. Produce before Magistrate- every accused or person arrested has the vested right of being produced before the Magistrate within 24 hours of his arrest. He or she shall be produced before the Magistrate having jurisdiction and without any explained delay. The arrested person has to be produced by the police officer who executed the warrant of arrest. A similar provision has been laid down in Article 22 of the Constitution of India along with the right against unlawful detention in custody without informing the individual about the grounds of arrest.
2. Right to be informed about grounds of arrest- Section 50 and 75 of CrPC governs the right where the police have the duty of informing the person about the grounds of arrest while making the arrest. The particulars of the offense against which allegations have been made against the person are to be informed while making such an arrest. The police officer also has the duty of informing a nominated person of an arrest about the arrest of such a person.
3. Right against wrongful arrest- As mentioned earlier, a person cannot be held wrongfully or taken into custody and detained by a police officer against law. A wrongful arrest is when a police officer deviates from the procedure stated in the CrPC as well as the Constitution of India and makes an arrest without reasonable grounds or probable cause. 
4. Right of privacy and protection against unlawful search- Article 21 of the Constitution of India enshrines the right to life and personal liberty. Therefore, no individual shall be deprived of this right under Article 21. In order to search an arrested person’s residence, a warrant must be issued to conduct the search. This implies that the arrested person also has the right to such unlawful search.
5. Right against self-incrimination- only the facts of the case are to be enlightened upon by the accused instead of answering the question which will incriminate him or her. Section 161(2) of CrPC states that no accused is obligated to answer questions put to him that will go against him. The accused cannot be forced to become a witness against himself.

Other rights of arrested persons include the right to stay silent, the right against double jeopardy, the right to bail, the right to Legal Aid, right to consult a legal practitioner of his or her choice

Section 358 of the Code of Criminal Procedure, 1973 lays down a provision for compensation to persons arrested in absence of any ground. When a complaint by a person causes the police officer to arrest another person and such arrest appears to be groundless or has no sufficient ground for arrest to the Magistrate is known as a wrongful arrest.

And the Magistrate has the authority to award compensation to be paid to such person arrested groundlessly of Rs100 by the person on whose complaint police made the arrest. This section states that the compensation awarded to the arrested person shall be recovered as a fine and in failure to pay the compensation shall be sentenced to imprisonment for 30 days by the Magistrate.

Habeas Corpus is another remedy one can be sought for release from unlawful or illegal detention. A writ of Habeas Corpus can be issued by the Supreme Court under Article 32 and by the High Court under Article 226 of the Constitution of India. 

An individual may also make use of reasonable force for defending himself from any unlawful arrest. The force used by the individual must be minimum and as necessary to defend himself in the circumstance. However, any force used in excess of the required will make the innocent individual liable for restraint.

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