From(Adyasha Das ([email protected]))_ID(518)_Code of Criminal Procedure I - Nature of...

-NATURE OF ARREST: WHETHER STAY OF ARREST IS POSSIBLE? -

-SUBMITTED BY ADYASHA DAS-


NATIONAL LAW INSTITUTE UNIVERSITY

CODE OF CRIMINAL PROCEDURE – I

PROJECT TOPIC: Nature of Arrest: Whether Stay of Arrest is possible?

Submitted to: Mr. P.K. Gupta,

Asst. Professor,

NLIU

Submitted by: Adyasha Das

2008 BA LLB 24

Submitted on : 11th April 2011



TTABLEABLE OFOF C CONTENTSONTENTS

TTABLEABLE OFOF C CASESASES.........................................................................1

DDECLARATIONECLARATION BYBY A AUTHORUTHOR............................................................2

IINTRODUCTIONNTRODUCTION............................................................................3

RRESEARCHESEARCH M METHODOLOGYETHODOLOGY...........................................................4

MMEANINGEANING OFOF A ARRESTRREST...................................................................5

NNATUREATURE ANDAND P POWEROWER OFOF A ARRESTRREST..................................................7

TTHEHE S SCOPECOPE OFOF THETHE P POWEROWER OFOF A ARRESTRREST.........................................8

Search of Place...................................................................9

Pursuit of Offenders...........................................................9

Deputing Subordinate to Arrest..........................................9

Power on Escape to Pursue and Retake...............................9

SSTATUTORYTATUTORY R REQUIREMENTSEQUIREMENTS FORFOR E EFFECTUATINGFFECTUATING A ARRESTRREST...............10

TTHEHE P PUBLICUBLIC P POLICYOLICY A ARGUMENTRGUMENT..................................................11

IINDIVIDUALNDIVIDUAL VV . C. COLLECTIVEOLLECTIVE I INTERESTNTEREST A APPROACHPPROACH.........................12

PPOSTOST J JOGINDEROGINDER K KUMARUMAR ANDAND S SATYAPALATYAPAL A APPROACHPPROACH......................13

CCONCLUSIONONCLUSION.............................................................................15

BB IBLIOGRAPHYIBLIOGRAPHY..........................................................................16


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- NATURE OF ARREST: WHETHER STAY OF ARREST IS POSSIBLE? -

TTABLEABLE OFOF C CASESASES

INDIAN CASES

1. Abhinandan Jha and Ors. v. Dinesh Mishra, 1968 Cri LJ 97.................7, 82. Aeltemesh Rein v. Union of India, 1988 SCC (Cri) 900...........................83. Ajit Singh v. State of U. P., 2007 CriLJ 170..........................................7, 84. Citizens for Democracy v. State of Assam, (1995) 3 SCC 743................85. D.K. Basu v. State of West Bengal, (1997) 6 SCC 642..........................116. G. L. Gupta v. R. K. Sharma, 1999 SCC (Cri) 1150..................................87. Joginder Kumar v. State of U. P., AIR 1994 SC 1349.......................12, 138. Karam Singh v. Hardayal Singh, 1979 Cri LJ 1211, 1215 (P&H)..............89. M. Narayandas v. State of Karnataka and Ors., (2003) 11 SCC 251...7, 810..M.C. Abraham and Anr. v. State of Maharashtra and Ors., (2003) 2 SCC

649.........................................................................................................711..........Md. Shahabuddin vs. State of Bihar and Ors., 2010 (2) SCALE 204

...........................................................................................................7, 812.................................................Satyapal v. State of U. P., 2000 Cr.LJ. 569

.............................................................................................................1313...................Smt. Nandini Satpathy v. P.L. Dani and Anr., 1978 Cri LJ 968

.........................................................................................................8, 1114. State of Uttaranchal vs. Balwant Singh Chaufal and Ors., JT 2010 (1) SC

329.....................................................................................................7, 8

FOREIGN CASES

1. Barnhard v. State, 602 A.2d 701, 705-06 (Md. 1992).............................52. Bouldin v. State, 350 A.2d 130, 33-34 (Md. 1976)..............................5, 63. Bruce v. Meijers Supermarkets, Inc., 191 N.W.2d 132, 134 (Mich. Ct.

App. 1971)..............................................................................................54. In Re: Fried, 161 F.2d 453, 465 2d Cir. (1947).....................................115. Little v. State, 479 A.2d 903, 915-16 (Md. 1984)....................................56. Morton v. State, 397 A.2d 1385, 1388 (Md. 1979)..................................5


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7. State v. Oquendo, 613 A.2d 1300, 1309 (Conn. 1992............................5


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IINTRODUCTIONNTRODUCTION

An arrest is the act of depriving a person of his or

her liberty usually in relation to the investigation and

prevention of crime. The term is Anglo-Norman in origin and is

related to the French word arrêt, meaning "stop".

The power of arrest is an important incident of the power

of investigation. It is necessary to prevent the perpetration of

crime and to curb such practices. At the same time as it

deprives a person of his liberty and harms his reputation, its

exercise must be warranted by circumstances. The law of

arrest is one of the balancing individual rights, liberties and

privileges, on the one hand and individual duties, obligations

and responsibilities on the other; of weighing and balancing

the rights, liberties and privileges of the single individual and

those of individuals collectively; of simply deciding what is

wanted and where to put the weight and the emphasis; of

doing which comes first - the criminals or society, the law

violator or the law abider.

Two grey areas have emerged so far as the arrest of the

accused is concerned, namely

1. The power of the Court to stay arrest;

2. The question of medical examination of the accused.

This project shall discuss the law regarding the first grey

area and try to shed some light upon it consequently.


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RRESEARCHESEARCH M METHODOLOGYETHODOLOGY

PURPOSE OF STUDY

This project aims to study the nature of arrest as laid down by the Code of Criminal Procedure, 1973 and delves into this nature to investigate if the Court can stay such arrest.

SOURCES OF DATA

The researcher has used both primary and secondary sources of information for the purposes of this paper.

The paper involves a detailed reading of the material on the topic. They include:

Books by eminent and reputed authors on the topic. Articles by eminent authors and publicists on this topic. Further the study involves a detailed reading of substantial case

law and judgments on the subject.

MAIN ISSUES COVERED

The following issues have been studied:1. What is the meaning and nature of arrest?2. What is the scope of the power of arrest?3. Individial Freedom v. Collective Freedom4. The Joginder Kumar-Satyapal Debate

FOOTNOTING

The researcher has followed a uniform style of footnoting throughout.

SCOPE AND LIMITATIONS

The paper considers the nature of arrest under the Code of Criminal Procedure, 1973 and whether arrest can be stayed by the Courts.


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A limitation on the project is that, the author has restricted himself in studying only the nature of criminal arrest and the scope of this nature in passing a stay of arrest.


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MMEANINGEANING OFOF A ARRESTRREST

Most of the development of the body of law on arrest occurred at common law. Several centuries of precedent and many commentators have produced what, at first blush, appears to be numerous irreconcilable definitions of what constituted an arrest.1 This is because the common law definition of arrest, like many common law principles, has proved very malleable and has been engrafted with factual considerations and burdened by broad generalizations. One must look beyond each factual situation and eliminate the extraneous gloss on the definition created by some authorities.

Two essential components of the definition of an arrest by a law enforcement officer acting pursuant to real or pretended authority at common law emerged2: the officer must obtain "custody" of the suspect; and the officer must intend to obtain that custody.

The concept of "custody" at common law did not require a trip to the police station, booking or instituting formal charges to constitute an arrest. Rather, an arrest was equated with any form of intentional detention and began at the moment of the detention.3

The common law courts began equating arrest with any intentional detention.4 For example, the Supreme Court of Connecticut, in a recent attempt to summarize the common law of arrest, defined it as “the apprehending or restraining of the person of another”5 that could be effected so long as there was "sufficient indicia ... that the person was not

1 Bruce v. Meijers Supermarkets, Inc., 191 N.W.2d 132, 134 (Mich. Ct. App. 1971); Lawrence W. Sherman, Defining Arrest: Practical Consequences of Agency Differences, 16 Crim. L. Bull. 376, 376-77 (1980); Barnhard v. State, 602 A.2d 701, 705-06 (Md. 1992)(reviewing common law definitions of arrest); Little v. State, 479 A.2d 903, 915-16 (Md. 1984) (same and concluding that brief stop at sobriety checkpoint was not arrest); Morton v. State, 397 A.2d 1385, 1388 (Md. 1979); Bouldin v. State, 350 A.2d 130, 33-34 (Md. 1976).2 Id.3 Id.4 Thomas K. Clancy, What Constitutes An "Arrest" Within The Meaning Of The Fourth Amendment?, 48 Vill. L. Rev. 129 (2003).5 State v. Oquendo, 613 A.2d 1300, 1309 (Conn. 1992).


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free to leave."6 Indeed, the word arrest "is derived from the French word arreter, which means to stop, detain, to hinder, to obstruct."7

Custody is "complete" when the person is actually restrained or submits to a show of authority.8 Thus, an arrest at common law was complete when custody was obtained, which occurred at the moment of touching by the officer or submission by the suspect to the officer's show of authority.

Intent to arrest is the second element of the common law definition of arrest. In many cases, this aspect of the definition has not been at issue - because of officer's obvious intent to arrest - and, accordingly, there has been less discussion of the intent requirement than other aspects of what constitutes an arrest.9

Professor Perkins in 1940 asserted: "there is a common-law requirement that one about to be arrested is entitled to notice, if he does not already know of

(1)the intention to take him into the custody of the law, (2)the authority for the arrest, and (3)the reason therefore."10

Yet, Perkins acknowledged that, to satisfy this notice requirement, "no special form of words" was required and conduct could take the place of words.11

An "arrest" is the detaining of a person, the obtaining of the actual, physical control and custody of him, and retaining it against his will and without his consent, under some real or assumed authority, for the purpose of (1) preventing him committing a crime, or of (2) causing him to be brought before a competent public legal tribunal to answer a charge or committing or attempting to commit a crime, or (3) as a protective measure, or of (4) otherwise aiding in the administration of justice.12

6 Id.7 Id.8 Supra n. 4.9 Boudlin v. State, 350 A.2d 130, 132 (Md. 1976)10 Rollin M. Perkins, The Law of Arrest, 25 Iowa L. Rev. 201 at 248-249.11 Id. at 249.12 Supra n. 4.


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In summary, stripped to its core meaning, the essential elements of a common law arrest are two: 1) the obtaining of custody over the suspect by a police officer; with 2) the intent by the officer to do so.


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NNATUREATURE ANDAND P POWEROWER OFOF A ARRESTRREST

The power of arrest falls within the power to investigate.13

Since, the power to investigate is the prerogative of the Executive14

and falls within the exclusive domain of the investigating agencies over which the courts do not have control,15 therefore the same idea applies to the power to arrest.

Since the power is discretionary, a police officer is not always bound to arrest an accused even if the allegation against him is of having committed a cognizable offence. He is not expected to act in a mechanical manner and in all cases to arrest the accused as soon as the report is lodged. In appropriate cases, after some investigation, the investigating officer may make up his mind as to whether it is necessary to arrest the accused person. At that stage the court has no role to play.16 Since an arrest is in the nature of an encroachment on the liberty of the subject and does affect the reputation and status of the citizen, the power has to be cautiously exercised. It depends inter alia upon the nature of the offence alleged and the type of persons who are accused of having committed the cognizable offence. Hence, the police officer in each case has to objectively decide whether or not the present case provides ample evidence so as to warrant the arrest of the accused. As to what constitutes such ‘ample evidence’ no hard and fast criteria can be laid down.

The position may be summed up in the following words: “Section 41 of the Code of Criminal Procedure provides for arrest by a police officer without an order from a Magistrate and without a warrant. The section gives discretion to the police officer who may, without an order from a Magistrate and even without a warrant,

13 Md. Shahabuddin vs. State of Bihar and Ors., 2010 (2) SCALE 204 (decided on 25.03.2010), Ajit Singh v. State of U. P., 2007 CriLJ 170.14 State of Uttaranchal vs. Balwant Singh Chaufal and Ors., JT 2010 (1) SC 329; M. Narayandas v. State of Karnataka and Ors., (2003) 11 SCC 251.15Abhinandan Jha and Ors. v. Dinesh Mishra, 1968 Cri LJ 97. 16 M.C. Abraham and Anr. v. State of Maharashtra and Ors., (2003) 2 SCC 649


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arrest any person in the situations enumerated in that section. It is open to him, in the course of investigation, to arrest any person who has been concerned with any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned. Obviously, he is not expected to act in a mechanical manner and in all cases to arrest the accused as soon as the report is lodged. In appropriate cases, after some investigation, the investigating officer may make up his mind as to whether it is necessary to arrest the accused person. At that stage the court has no role to play.”17

17 Id.


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TTHEHE S SCOPECOPE OFOF THETHE P POWEROWER OFOF A ARRESTRREST

The power of arrest belongs to the genus of investigative powers.18 Since, the power to investigate is the prerogative of the Executive19 and falls within the exclusive domain of the investigating agencies over which the courts, ordinarily, do not have control,20 it necessarily follows that the same principle should apply to the power of making arrest.

However, the powers of the Executive with respect to arrest though enormous, are not boundless. First, it must be shown that it is lawful in the present circumstances to make arrest. However, no arrest can be made because it is lawful for the police officer to do so.21 The existence of the power to arrest is one thing. The justification for the exercise of it is quite another.22 The police officer must be able to justify the arrest apart from his power to do so. Thus, the arrest is permissible only in a case where the circumstances of the said case so require and there is a justification for making the arrest otherwise not.23 Further, sub-section (3) of Section 46 enjoins in clear terms that though persons making arrests can use all necessary means for the purpose, they have not been given any right to cause the death of a person who is not accused of an offence punishable with death or imprisonment for life.24 Again, Section 49 provides that ‘the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.’25 Further restrictions on the power to make arrest was placed with respect to the arrest of women by Section 46 (4) which

18 Md. Shahabuddin vs. State of Bihar and Ors., 2010 (2) SCALE 204 (decided on 25.03.2010), Ajit Singh v. State of U. P., 2007 CriLJ 170.19 State of Uttaranchal vs. Balwant Singh Chaufal and Ors., JT 2010 (1) SC 329; M. Narayandas v. State of Karnataka and Ors., (2003) 11 SCC 251.20Abhinandan Jha and Ors. v. Dinesh Mishra, 1968 Cri LJ 97.21 Smt. Nandini Satpathy v. P.L. Dani and Anr., 1978 Cri LJ 968.22 Id.23 Supra n. 13, at 174.24 Karam Singh v. Hardayal Singh, 1979 Cri LJ 1211, 1215 (P&H).25 Aeltemesh Rein v. Union of India, 1988 SCC (Cri) 900; Citizens for Democracy v. State of Assam, (1995) 3 SCC 743; G. L. Gupta v. R. K. Sharma, 1999 SCC (Cri) 1150.


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provides that no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the judicial Magistrate of first class within whose jurisdiction the offence is committed or arrest is to be made.26

The intention of the legislature to confer upon the Executive enormous powers with respect to arrest can be gathered from the additional powers conferred for effecting arrest.

SEARCH OF PLACE

Section 47 imposes a legal duty on an occupier of the house to afford to the police officer all the facilities to search the house for the purposes of making arrest. If denied or obstructed he can use force for getting entry into the house for search and also for the purpose of liberating himself in case he is detained in the house. The section also puts reasonable restrictions on the police when the part of the house to be searched is occupied by a pardanashin woman.

PURSUIT OF OFFENDERS

Section 48 provides that ‘a police officer may, for the purpose of arresting without warrant any person whom he is authorized to arrest, pursue such person into any place in India.’ A police officer’s power to arrest is ordinarily limited to the police district.27 This power has been, to an extent, supplemented by Section 48 of the Code.

In the case the arrest is to be made under a warrant, Section 77 makes it clear that ‘a warrant of arrest may be executed at any place in India.’ However, when a warrant of arrest is to be executed outside of the local jurisdiction of the court issuing it, a special procedure, as prescribed by Sections 78-81, will have to be followed.

26 Ins. by the Code of Criminal Procedure (Amendment) Act, 2005. It came into force with effect from June 23, 2006.27 See S. 22 of the Police Act, 1861.


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DEPUTING SUBORDINATE TO ARREST

If a senior police officer in his presence requires a subordinate police officer (or even any other person) to arrest a person who may be lawfully arrested without a warrant, such subordinate officer is under a duty to arrest.28 If however the senior police officer wants to send and depute a subordinate for arresting a person without a warrant, he can give an order in writing to the subordinate specifying the person to be arrested and the cause for which the arrest is to be made.

POWER ON ESCAPE TO PURSUE AND RETAKE

If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in India [Section 60 (1)]. The person making such re-arrest has the same powers and duties as mentioned in Sections 46 and 49.

28See S. 37 of the Police Act, 1861.


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SSTATUTORYTATUTORY R REQUIREMENTSEQUIREMENTS FORFOR E EFFECTUATINGFFECTUATING AARRESTRREST

Investigation is the primary function of the Police. The arrest of the suspect is the next step in the investigation which can be carried out in certain cases without warrant of arrest. Arrest can also be made in view of the provision of Section 42 of the Code, if the accused does not disclose his identity, i.e. name, parentage and residence etc or information in this regard given by him is believed to be false.

The powers of the Executive to make arrests are subject to certain restraints. These restraints can be considered, to an extent, as the recognition of rights of the arrested person.

i. Right to know the grounds of arrest u/Ss. 51-55ii. Right to information regarding the right to be released on bail u/S.

50 (2)iii. Right to be taken before a Magistrate without delay u/S. 56 and 76iv. Right of not being detained for more than 24 hours without judicial

scrutiny u/S.57v. Right to consult a legal practitioner u/Art 21 of the Constitution of

Indiavi. Right to be examined by a medical practitioner u/S. 54


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TTHEHE P PUBLICUBLIC P POLICYOLICY A ARGUMENTRGUMENT

The courts have leaned in favour of the public policy to curb crimes. The following cases and observations therein clearly illustrate the point:

In D.K. Basu v. State of West Bengal,29 the Hon'ble Apex Court held that when the crime goes unpunished, the criminals are encouraged and the society suffers. The victim of crime or his kith and kin become frustrated and contempt for law develops.

Judge Learned Hand, In Re: Fried30 observed: “The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten. Perfection is impossible; like other human institutions criminal proceedings must be a compromise.”

In Smt. Nandini Satpathy v. P.L. Dani31 it is clearly stated that: “To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft. The pendulum over the years has swung to the right.”

29 D.K. Basu v. State of West Bengal, (1997) 6 SCC 642.30 In Re: Fried, 161 F.2d 453, 465 2d Cir. (1947).31 Smt. Nandini Satpathy v. P.L. Dani, 1978 CriLJ 968.


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IINDIVIDUALNDIVIDUAL VV . C. COLLECTIVEOLLECTIVE I INTERESTNTEREST A APPROACHPPROACH

In Joginder Kumar v. State of U. P.32 the Court rightly observed: “The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligation and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first - the criminal or society, the law violator or the law abider.”

In sum, the right of the Executive to arrest a person in order to curb crimes prevails over the liberty of an individual. This however, does not mean that the power to arrest is plenary in nature and can trammel the liberty and constitutional rights of an individual.

For effective enforcement of the fundamental rights enshrined under Article 21 and 22 of the Constitution of India, the Court issued the following guidelines:

(1)An arrested person being held in custody is entitled, if he so requests to have one friend relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where is being detained.

(2)The Police Officer shall inform the arrested person when he is brought to the police station of this right.

(3)An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.

(4)It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.

(5)The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall

32 Joginder Kumar v. State of U. P., AIR 1994 SC 1349.


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be in addition to the rights of the arrested persons found in the various Police Manuals.

(6)These requirements are not exhaustive. The Directors General of Police of all the States in India shall issue necessary instructions requiring clue observance of these requirements. In additions, departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest.


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PPOSTOST J JOGINDEROGINDER K KUMARUMAR ANDAND S SATYAPALATYAPAL A APPROACHPPROACH

The Hon'ble Apex Court in Joginder Kumar's case33 held that the arrest should not be made in every case in routine and it may be made only where there is a justification for making the arrest and necessary in the facts and circumstances of that case.

In Satyapal's the Full Bench of The High Court of Uttar Pradesh held that arrest should be stayed only in rarest of rare cases and not as a matter of routine. It was observed that the Hon'ble Apex Court decided the case of Joginder Kumar's case on the facts of that case and it does not lay down the law for universal application.

The two views expressed above led to some confusions as to the acceptable approach of the Court while granting a stay of arrest. The controversy came up before the Full Bench of the Allahabad High Court in Ajit Singh’s Case. The questions before the Bench were:

(1)Whether arrest during investigation can be stayed by this Court only in rarest of rare cases as observed in Satyapal v. State of U. P.,34 or according to the criteria laid down by the Supreme Court in Joginder Kumar v. State of U.P. and Ors.?

(2)Whether the Full Bench in Satyapal's case was right in holding that Joginder Kumar's case was delivered on its own peculiar facts and circumstances and hence does not lay down any legal principles relating to the power of arrest and the power of stay to arrest by this Court?The Court observed that: “The Full Bench in Satyapal's case had

examined the issue as to what extent and in what circumstances, this Court has competence to interfere with investigation of an offence. While in Joginder Kumar's case, the Supreme Court explained the powers of the police to arrest a person suspected to be involved in a crime. Thus, in both the cases, issue had been entirely different and there was nothing

33 Supra n. 32, at 135634 Satyapal v. State of U. P., 2000 Cr.LJ. 569.


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common in both the said cases. Observations made by the Full Bench in Satyapal's case that Joginder Kumar's case was decided on the facts of that case, simply meant that the law laid down therein did not affect the powers of this Court in interfering with investigation by any means.”

The Court further observed that the Full Court in Satyapal only intended to say that the ratio of Joginder Kumar's case was not applicable in a case where quashing of criminal proceedings is sought.

For the first part of question No. 1 it was held that Satyapal's case laid down the correct law and it was approved, affirmed and reiterated. However, regarding the second part of the 1st question it was held that it does not require to be answered, as the ratio of Joginder Kumar's case has no application in a case for quashing criminal proceedings.

Answering the second it was held that the observations contained in the Full Bench decision in Satyapal's case did not intend to whittle down or reduce the powers of this Court for staying the arrest of an accused person as the ratio of Joginder Kumar's case had no application in Satyapal's case.

Amar Saran, J. added to the answer given by the Majority with respect to the second question according to him the correct approach would be to affirm the opinion expressed in Satyapal case.

He observed that: “If the observations in Joginder Kumar's case are excluded as is mentioned in the answer of Brother Chauhan, J to this question and also in the second part of the answer given to the first referred question, then there can be no denial of the fact that ipso facto to some extent the powers of this Court to stay arrest are whittled down. Furthermore in my view the position that the scope of this Court under Article 226 for interfering with investigations and staying arrests is not whittled down even without applying Joginder Kumar's case, runs counter to the position taken in Satyapal's case and will amount to over-ruling or mitigating the ratio and impact of Satyapal's case, in an indirect way, which is a course not permissible for a subsequent Full Bench of equal strength.”


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Clearly, it appears that the approach of the Court is not clear so far as the effect of Joginder Kumar and Satyapal are concerned with respect to power of arrest.


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CCONCLUSIONONCLUSION

The law regarding the power of arrest is settled so far as

we say that the Executive is by and large free to do what it is

legally entitled to do. However, once the statutory and judicial

limits are transcended the Courts intervene. The question as to

whether the Courts can stay the arrest it appears that they may

do so but in very exceptional cases as opined in Satyapals case,

in rarest of rare cases. However, the opinion expressed by the

judges in Ajit Singh’s case do not clearly settle the position as

to the effect of Joginder Kumar’s case on the power of Court to

interfere with the power to make arrest. It appears that Amar

Saran J. view is more plausible and he correctly holds that in a

cognizable matter it is the remedy of anticipatory bail u/S. 438

Cr.P.C which is appropriate, the remedy of stay being

unavailable.


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BBIBLIOGRAPHYIBLIOGRAPHY

BOOKS

RATANLAL & DHIRAJLAL’S, THE CODE OF CRIMINAL PROCEDURE, EDITION 15TH, 1997

KELKAR, CRIMINAL PROCEDURE CODE, EDITION 6TH, 2008.

ARTICLES

LAWRENCE W. SHERMAN, DEFINING ARREST: PRACTICAL CONSEQUENCES OF AGENCY DIFFERENCES, 16 CRIM. L. BULL. 376, 376-77 (1980)

THOMAS K. CLANCY, WHAT CONSTITUTES AN "ARREST" WITHIN THE MEANING OF THE FOURTH AMENDMENT?, 48 VILL. L. REV. 129 (2003).

ROLLIN M. PERKINS, THE LAW OF ARREST, 25 IOWA L. REV. 201 AT 248-249.

STATUTES

CODE OF CRIMINAL PROCEDURE, 1973 CODE OF CRIMINAL PROCEDURE (AMENDMENT) ACT, 2005. THE POLICE ACT, 1861.

WEB RESOURCES

HTTP://WWW.MANUPATRA.COM/ HTTP:// WWW.LEGALSERVICESINDIA.COM/


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