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The arrest is definitely an unpleasant situation in anyone’s life. When your loved one is arrested for a crime that he/she has not committed can make you feel helpless. In such a situation, one must be aware of the steps that he can take.
The arrest is when anyone is taken into custody. Detention and arrest are two different terms. Detention is short-term, where a police officer may question someone and then free him, whereas arrest is long-term and requires more legal procedures. An arrest can only be made by executive officers according to the procedure established by law. Any police officer cannot take anyone into custody without having sufficient grounds to believe that he is at fault.
When a loved one is wrongfully arrested, he can file the writ of Habeas Corpus. This can be filed in Supreme Court under Article 32 and under Article 226 in High Court. Writ petitions are filed when a fundamental right has been infringed. In case of arrest the Article 21, i.e., the right of personal liberty, has been infringed. This writ is an instrument for safeguarding a citizen’s freedom against arbitrary action by the executive body of the state. This writ can be invoked if sufficient legal grounds of arrest are missing. The arrested person is presented before the court within 24 hours. If it does not find sufficient grounds and evidence, then it will order the immediate release of the person.
This writ was explained by the Supreme Court in State of Maharashtra v. Bhaurao Punjabrao Gawande [1]. The Court stated that “the writ of habeas corpus has been described as a great constitutional privilege or the first security of civil liberty as it provides a prompt and effective remedy against illegal detention. By the use of this writ, the Court directs the authority which has detained a person to produce the body of the person before the Court so that it can enable the validity, jurisdiction or justification of the arrest or detention.”
According to Section 46(1) of CrPC, “In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action.”
But one cannot resist the arrest. According to Section 46(2) of CrPC, “If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other people may use all means necessary to effect the arrest.”
When anyone is taken into custody, he must be aware of certain things. They are:
He has the right to remain silent and cannot be coerced by the police officer to confess something.
Any statement made by him can be used as evidence in court.
He can ask for his lawyer to be present while he questioned by the officers.
He has the right to be represented. If he cannot afford a lawyer, then a lawyer is appointed for him by the govt.
In the case of Kiran Bedi v. Committee of Inquiry & Anr.[2], the Apex Court said that “The right to the enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty, and property.”
Another famous case is the S. Nambi Narayanan v. Siby Mathews[3] (ISRO spy case), where scientist Nambi Narayan was arrested wrongfully. He was later proved innocent and awarded damages.
References
For a more detailed understanding, refer to the" S. Nambi Narayan v. Siby Mathew and Others." case study by clicking the case below.
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