The Phenomenon behind Arrest

I. Why Arrest?²

Arrests are a paradigmatic police activity. The power of Arrest is associated with policing. It has been an urge for the longest time possible to be referred to in the history of human civilisation to catch hold of the offender who has committed an offence because he is the cause of disturbance in the social order. It is he who was responsible for the chaos which has destroyed social harmony and solidarity. It is he because of whom there is the birth of suspicion among the members of the society. He is responsible for disturbing the state machinery which would have been engaged in some important jobs for the 'welfare of all' in the society. Because of him, the state got to know the weak law enforcement machinery and thus, he made the state vulnerable. He deviated the mechanism of state functionaries to execute laws and establish harmony now; the harmony can only be restored if this person is nabbed and never let away from the clutches of the law.

This is the narrative of the state, in which the accused is painted as dark as he may not be. The Arrest of such individuals is advertised as the only and essential task for the state law enforcement machinery. The state advertises only one facet of the coin to legitimise its actions but fails or negates to answer the questions associated with his liberty, his innocence until he is proven guilty. It is this narrative that sets the theme in the society, which accepts the arrested individual as criminal and not only criminal, rather criminal per se. Although the Arrest should take place when there is a need, it is often conducted when it is not essentially required. If the state interest cannot be served without performing Arrest, then it is necessary to exercise the power of Arrest by the empowered state.

If the criminal process cannot be initiated without arresting an individual, perhaps the criminal process focuses on pre-trial scrutiny, and the pre-trial scrutiny plays an important role in ascertaining the presumption of guilt. Here arrives the most significant question what is the kind of state-individual relationship existing in a particular state? Is the relationship non-libertarian³, in fact not even communitarian in nature, to accept the individual even as a part of the society?

Many times, a proper administration of criminal justice is identified on the basis of the number of arrests conducted by the police, and we are obsessed with the idea of Arrest in such a manner that the implementation of criminal law is considered incomplete unless Arrest is effected. Perhaps, for the common folks, the criminal procedure begins with Arrest. Perhaps, we connect one of the aspects of public safety with Arrest. The Arrest is extraordinary power in the hands of the police.

The argument is supported by the constitutional bedrock foundation of the criminal procedure in a state. Article 14, read with Article 21 of Part III of the Constitution of India, discourages the state from violating the liberty of an individual by recognising the natural right of liberty as a fundamental right of an individual other than by the procedure established by law. Article 14 discourages the state from treating a particular individual with respect to others differently, other than on the basis of reasonable differentia, and such differentia (as suggested) should be just, reasonable and fair in nature. An individual cannot be deprived of his/her natural right of liberty, compared with others situated on the same platform, unless there exist convincing and credible reasons to curtail such right. Such reasons should have a live link with the procedure established by law.

The Indian Constitution carefully included the term procedure established by law, and it was comfortably compared with the American due process. A small introduction to what was the peculiar differentiation between the two is that the former focuses and gives ultimate significance to the competency of the authority which legislates the law. If the law is a result of a competent authority, it is then considered and accepted to be valid and capable of being enforced. The latter principle⁴ mandated such law to not only be the result of an exercise of competency by authority rather; it is required to be reasonable, just and fair, in such a manner to suit the purpose of the rule of law; that is an egalitarian society.

The Indian jurisprudence of adoption of either of the two principled terms can be located to and fro a case, which is; Maneka Gandhi v. Union of India.⁵ The historical judgement of Maneka Gandhi (supra) imported the concept of due process through the judicial process of adjudication (appreciation of facts, application of law and judicial mind and arriving at a conclusion) as a proper interpretation to the term procedure established by law. The term lost its pragmatic significance and utility after the application of different concepts as meaning and interpretation to it. Therefore, now the law cannot be any law empowered to curb the natural rights of life, liberty and property of an individual. The procedure has to be just, fair and reasonable. The Arrest is one such Act of the state which is regulated by the criminal procedural law. The Act of Arrest, as well as the procedure laid down the manner of Arrest, cannot be against due process. Through this judgement, the due process model was incorporated into the Indian criminal justice system.

Why is there a need to consider the necessity of Arrest and balance it with the harms it shall cause to the arrestee? The Arrest does not only harm the arrestee, and it affects the family, community and society as a whole. The community and the society in which he dwells see him as a reason for the disruption of social order and others as a potential disrupter of social solidarity. Second, the law which we take as a point of reference for assessing the validity and reasonability of Arrest falls short of the ambit to cover such damage.

Another synonymous term with Arrest is custody. Custody is often associated with the Act of arresting. Once the liberty of an individual is curtailed, his/her movements are restricted to the custody of a competent authority. Custody means in the care of the individual is supposedly under the observation of authority, under its supervision. The holistic effect of the Act and process of Arrest and detention is submission to the criminal procedure through submission to the authorities.

The arrestee is part of the criminal process, a subject of supervision for the authorities. It is needless to state that the arrestee is at the mercy of the authorities who exercise their competency on him/her. The treatment in custody, particularly in police custody, is an open secret; it needs no introduction. The lofty principles of the criminal process are followed in a letter, not in spirit. The Arrest is seen as a mechanism to harass the common folks, to initiate an investigation of the offence committed, and as a tool to repose the faith of the victim (sufferer) and the entire society back in the criminal justice system. What does the arrestee lose is considered insignificant and perhaps, needs no mention? The arrestee loses his/her income and sometimes their job when they do not show up for work. Even if the arrestee is released after requisite interrogation, (s)he continues to bear a badge of once having escorted by police for investigation of an offence against him/her, and as a result, the financial and social loss to his/her image continues to mar his/her life. The fear of association of ill repute of the arrestee with the place of work compels him/her to lose the means to earn and save himself or herself and his/her family from starving. Even if they get the means to earn a livelihood, the bargain remains inequitable because of the stigma attached to the arrestee and the favour given to him/her by the employer. It is certain to conclude that Arrest is way more frightening and humiliating than it appears to be. No doubt, it is a gateway to a myriad of worse financial prospects.

In episodes of Arrest where the accused is fleeing, and it becomes necessary to cause injury to him to make him stop, it falls heavily on the officials because they were not alert while apprehending the arrestee and unfortunately had to take such a step. Arrests enhance friction between the police and communities and especially when the community is a minority community, and this disproportionately causes agony to those who are the victims at the hands of execution of the criminal procedure. At times, Arrest is a powerful weapon in the hands of authorities, and the state effectuates its agenda through it. Thus, arrests are costly deprivations of liberty and should be imposed (normatively) when a significant state interest is at risk. This makes the power to arrest, logically, a power to be exercised in extraordinary and compelling circumstances.

II. Arrest and House Arrest

An arrest has originated from the word 'Arreter' meaning to stop or stay, and signifies the restraint of a person. This is for the surety that Arrest is to be understood as a procedure through which a person is a restraint. Keeping this idea of restraint centrally, the concept of house arrest arrives to seek attention. Generally, house arrest is not considered a typical kind of Arrest that has formal recognition as 'arrest'. It is generally associated with confinement but not arrest. We do not call confinement an arrest easily. It becomes here significant to link the concept of arrest and house arrest and try to bring to the surface certain similarities between the two. House arrest is a form of intensive law enforcement supervision characterised by confinement to the offender's place of residence with permission to leave only for explicit, pre-authorised purposes.⁶

Considering the idea behind house arrest is that the person is confined in residence but has no liberty to step out of it. The compulsory nature of the confinement makes it meaningfully nearer to the idea of Arrest. The person under house arrest is under indirect custody and supervision of the authorities. The person is under the constant surveillance of the authorities. The detainee is a loser of his liberty and privacy if not in a similar manner, but the effect of loss of liberty and privacy is common to be lamented for under Arrest and house arrest (detention). The authorities exercise power to impose house arrest with justifications to prevent certain unrest or disturbance in the society which may be caused if the detainees are not left free to act as per their will. The house arrest is often exercised as a pre-emptive step to prevent such possible disturbance and chaos, which may come into existence if such action of detention is not conducted. The visitors to the detainees are watched, and their personal details are recorded, and they may only visit the detainee if the authorities grant permission for the same.⁷

In house arrest, the detainee is, at times, granted permission for essential travels. This is not possible when a person is under Arrest of the authority and only on release on bail; such travel may be allowed if the same is mentioned in the conditions imposed on the bailee.

In Gautam P. Navlakha v. National Investigation Agency,⁸ it was observed by the Court,

'It is re-emphasised that house arrest is a judicial arrest as it is an order of confinement by Court pursuant to an arrest which satisfies the requirements of provisions of section 41, CrPC. [...] it is again reiterated that the honourable Supreme Court has used the words 'house arrest', which denotes that order of confinement is pursuant to an arrest under section 167 CrPC alone.'⁹

Now, the question which is consequential in nature, that if house arrest amounts to arrest as per the provisions of CrPC (Code of Criminal Procedure, 1973), then will the detainee get the status of the arrestee and consequentially all the rights associated to default bail according to the time period mentioned in the proviso to section 167(2) CrPC? Logically, yes. If the comparison of house arrest is considered equivalent to that of Arrest, then it is hard to not argue that the detainee/arrestee will not be entitled to the benefit of default bail. The rationale is that the central theme, which is the effect of Arrest (restraint, restriction of one's liberty), is common between house arrest and arrest then the difference is only in the name. In Gautam P. Navlakha's case (supra), the Court thus did not allow the release of detention of the detainee because the term requisite in section 167(2) proviso has not passed. As noted below:

'[...] The bone of contention is the period of 34 days (28/08/2018 to 01/10/2018) which the appellant was under custody (house arrest). Undoubtedly, this period has to be regarded as custody as the appellant admittedly was under house arrest. However, in our opinion, the intervening orders passed would be relevant for determining the nature of this custody for the purpose of Section 167 of CrPC to enable the appellant to claim default bail. Following circumstances cumulatively leads us to conclude that the appellant is not entitled to the benefit of 34 days for claiming statutory default bail. [...]'

A significant question associated with democracy arises here. The state may use this new technique to curb dissent and disagreement within the state and establishment. House arrest is one of the most effective mechanisms to effect preventive Arrest.

Preventive Arrest¹⁰ is an arrest of an individual to prevent him from doing anything which may cause or has the potential to cause disturbance to society. The police may detain an individual in sensitive situations, and after the apparent danger suspected from their possible acts is over, they are released from detention. The reason is that the liberty of an individual may not be in the best interest of society. Here, we again come across the conflict of interest between the natural rights of an individual and the welfare of the society at large. Here, the state advances a choice to be made between the two before the society members, without even considering that the sanctity of an individual's rights is equal. Preventive detention in the form of house arrest is a common genre of detention that is capable enough to curb dissent and voices against the state. It is beyond doubt that probable cause gives legal justification to arrest a person in order to prevent the possible wrongdoing, and if the wrong is done to society, then definitely it gives myriad of reasons to arrest an individual. It is this legal justification that is the narrative of the state.

III. Is Preventive Detention equivalent to Arrest?

Preventive Detention Act, 1950 empowers the Central Government and the state governments to order for preventive detention of an individual if it finds it necessary to cause such detention to prevent him from acting in any prejudicial manner to the defence of India, security of the state, maintenance of supplies and services essential to the community.¹¹ The state is empowered to cause such detention, and this posture of the state has a reflection of its inspiration from the crime control model¹².

Another power of the state is when it designates the commission of an act/omission; a cognisable offence. Designation of an act as a cognisable offence makes it easier for the authorities to conduct Arrest without a warrant, and therefore, the arrestee comes under the clutches of the authorities easily.

The offences under the Unlawful Activities (Prevention) Act, 1967¹³ are cognisable in nature and are non-bailable offences, and the provision under section 43D of the Act makes the provision of default bail under the Act are different from that of Code of Criminal Procedure, 1973.¹⁴ Also, when the law gives ample power to the hands of the state to declare an individual a terrorist; it is quite logical that the arrests of such individuals shall be considered necessary; which concludes the inference that the law empowers to conduct arrests when it has the discretion to declare an individual a terrorist by following an anonymous procedure. Terrorist and Disruptive activities (Prevention) Act, 1987 provides that a person can be detained for a period of one year without any formal charges or trial against that person. Section 20 of TADA provides that a detainee can be in police custody for up to sixty days. These provisions associated with Arrest clearly suggest that they are the result of inspiration from the crime control model of the criminal process and in favour of the presumption of guilt of the accused.¹⁵ No doubt, under such cases, Arrest acts as a medium to cause harassment to the accused with his/her family and together make them primary victims of the criminal process. The main concern is that the state is eager to formulate more of such legal procedures that take it away from its normative character.¹⁶

IV. Arrest- an assault on the soul or just on the body

When we state the prior statement, the significance of restraint has to be understood. Restraints signify loss, restriction to one's body as well as the soul.¹⁷ Soul signifies the rights of an individual, which cannot be exercised when a person is arrested and is in custody. The idea of Arrest is not only to affect the body of an individual but also his soul. Custody is the consequence of Arrest. A person is said to be in the custody of the authority when (s)he submits to the authority, and such submission is with respect to a charge against the arrestee. A civilised state requires the establishment of a system where the soul is targeted instead of the body, but the Arrest and subsequent custody of the individual results in pain to the body when the police compel to reiterate the story of the prosecution¹⁸ and result into further ripping off one's rights.

The judgement of D.K. Basu v. State of West Bengal¹⁹closely observes and analysis the Act of Arrest and its consequences and the custodial torture. Perhaps, the most frightening apprehension of Arrest is the custodial torture after Arrest. The torture not only snatches away the dignity and bodily integrity of an individual but also hampers one's mental state. The state is such that Arrest and custodial torture are seen as an infamous combination. The police are infamous for enforcing this combination yet is proud of themselves for being able to extract the truth from the wretched mouth of the already declared criminals. The fact of custodial violence is known from the police station lock-ups to the highest Court of criminal jurisdiction. A.S. Anand, J. in D.K. Basu's case (supra) stated

'[...] any form of torture or cruel, inhuman or degrading treatment would fall within the ambit of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness, and every man would have the tendency to become a law unto himself thereby leading to anarchy[...].'²⁰

In Mehmood Nayyar Azam v. the State of Chattisgarh²¹; the case of Joginder Kumar v. the State of U.P.²² was cited²³ in which the Supreme Court of India observed regarding the law relating to arrest;

'[...] the law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and the 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 deciding which comes first – the criminal or society, the law violator or the law abider[...].'²⁴

The Court also expressed concern regarding the expansion of the horizon of human rights and, at the same, the rising level of crime rate and the necessity to strike a balance between the two.

The issue of pitting the rights of an individual who is under the Arrest and control of detention laws against that of the entire society is troublesome.

The two are entirely different aspects of criminal justice administration, and it is not a proper comparison. The comparison is made between those two who have some commonality, at least in the context and background. Placing the accused against the societal well being is in itself a difficult and out of context comparison because the individual's rights shall always be considered trivial than the societal 'well being'. The use of the term 'societal well being' is to attract sympathy towards the state's efforts in curbing crime within the society and that the failure in upholding the peace, harmony and societal well being was disrupted all because of the accused. The apathy towards the accused is certain, and (s)he is considered to be a threat against the entire society, in fact, in the allegations of heinous offences, a threat to mankind. The obvious question is negated to be given a thought to, state; having all the resources and functional machinery of the system at disposal, did all possible efforts in preventing crime in the society, but its efforts were failed because of the notorious mind of the accused. Isn't this plausible question required to be answered? Is this accused so treacherous that (s)he is to be put behind bars all through and that the entire machinery of the state bows down before him? Can under such circumstances we say that the state is powerful enough to protect the society, or is this narrative only to gain sympathy (for the state) and apathy for the accused? This narrative validates the state to comfortably step into the shoes of the real victim, who is the sufferer in the entire incident. The state urges for discernment as an actual victim because it is its skeleton of law and order maintenance, which is violated by the accused. The victim who has suffered from both ends (the state was not able to protect his/her rights and the accused allegedly violated his/her rights) is replaced and is reduced to the status of a witness.

To say that the horizon of human rights is expanding is awkward. The reason is, the human rights of an individual are per se and are sui generis and are available to all human beings only because of the fact of one being a human being. The horizon is already expanded, and to violate human rights with the justification to curb crime within the society, is applauding for the actions of the state; that is improper. It cannot be said that the law of arrest functions on the orbit of the answer to the question, which comes first; the society's interests or that of the accused. The question is already suggesting the answer that is sought to be heard comfortably.

The Arrest cannot and should not be made a general rule in every criminal proceeding. It should never let slip from the consideration that Arrest exhumes one's liberty and exposes him/her to the adversities to the criminal justice system. The power to arrest is essential to policing but not compulsory to be exercised. The Code of Criminal Procedure, 1973 does not define the term arrest. Rather, it states the manner of Arrest under section 46.²⁵The provision makes clear regarding the manner of Arrest and removes all possibility of physical contact between the arrestee and the authority conducting Arrest unless there is no submission to the authority. This makes one point quite clear that the submission is sine qua non for Arrest. The reason is that if the submission is wilful, then the force is not needed to be used, but if there is no voluntary submission, then; to ensure submission to the authority, the force is lawfully recognised to be used. Therefore, under all circumstances, submission has to be ensured. This submission signifies one more attribute of Arrest, i.e., custody. This submission puts a person under the custody of the authority arresting the individual. Custody means under the care of, hence, the individual after Arrest is under the care of the authority. This makes it quite clear that every condition of the arrestee after the Arrest of the individual is attributed to the authorities who kept the accused under their custody. The provision makes it abundantly clear that the law has bestowed enormous powers in the hands of the functional authorities of the state to use all the means necessary²⁶ to cause Arrest if the arrestee attempts to evade Arrest. Here, there is a wide discretion to exercise powers against the arrestee, and at the same time, there is ample space to misuse the powers as well. The police may falsely accuse the arrestee that he attempted to evade Arrest to justify its force and violence.

The provision also states that there exists no right to cause the death of the person who is to be arrested if he is not accused of offence(s) punishable with death or life imprisonment. On reading the reverse inference, if the arrestee is accused of an offence punishable with death, then death may be caused to him if he evades from submitting to the authority because it is justifiable to use all means necessary to effect Arrest and ensure submission. The observation stirs the conclusion it directs to arrive at. Is submission to the authority so necessary? Is it justifiable to pit the life of the accused against the need for submission before the authority? Does vesting of enormous discretion to effect Arrest not the reason for enough scope for its exploitation?

Section 47 of Code of Criminal Procedure, 1973 furthers bestows powers on the police officer(s) while effecting Arrest.²⁷ A plain reading of the provision gives a clear picture regarding the powers in favour of the police officials against the accused. It certainly needs no further elaboration, and elaboration on this note shall resemble repetition of the above statement.

It has become a general rule that Arrest is seen as a gateway to procedural and custodial trauma. To address this, the Supreme Court of India in D.K Basu's case (supra)²⁸laid down guidelines to ensure that police does not arrest an individual and the individual is lost in the complexities of the legal system. The amendments to the Code of Criminal Procedure, 1973²⁹ were a reflection of the stated guidelines. The arbitrary arrests and subsequent torture in custody were the main reasons behind such guidelines. There were cases in which the arrestee was found to be lost after being arrested, later found dead under suspicious circumstances.³⁰

This is not just an illustration of a single case rather;, it is just the tip of the iceberg. The facts of Khatri and Ors. v. the State of Bihar³¹are not only astonishing but also eye-opening about the treatment of undertrials and the convicted persons in custody. The behaviour of police during and after the Arrest in custody is an open secret, and it represents the instances of the cruel and barbaric manner in which the administrators of law deal with the persons arrested by them and requires immediate attention by the superior authorities and the courts.

State of Haryana v. Dinesh Kumar³²discussed in detail what would amount to an arrest. The Court has observed that '... where the Arrest of a person is not required under section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer, and it further mandates that if such an accused complies with the terms of the notice, he shall not be arrested unless, for reasons to be recorded, the police officer is of the opinion that Arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate [...]'³³ This clearly suggests that the procedure of Arrest is not mandatory and is purely discretionary at the same time. This discretion has to be exercised reasonably and only when it is genuinely required. Arrest causes social stigma and has the ability to gobble the valuable years of one's life; it cannot and should not be exercised without cogent reasons. Automatic Arrest should not be the procedure in practice and the procedure u/section 41 of Code of Criminal Procedure, 1973 should be considered as a parameter of guidance. The provisions of sections 41A, 41B, 41C and 41D should be the guiding provisions of law to conduct proper Arrest.

In Niranjan Singh v. Prabhakar, ³⁴ the full bench of the Supreme Court observed;

'...equivocatory quibbling that the police have taken a man into informal custody but have not arrested him, have detained him in interrogation but have not taken him in formal custody, were unfair evasion of the straightforwardness of the law...'³⁵

This practice of informal Arrest, for the purpose of interrogation, poses a risk to the arrestee because there is nothing on record that the arrestee was formally an arrestee and was arrested by the police, misusing the powers bestowed upon him. The case of Niranjan Singh's (supra) attempts to figure out and to make further clarification as to what amounts to custody, in formal as well as in informal arrests;

'... No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the Court or is in the physical hold of an officer with coercive power is in custody for the purpose of section 439 CrPC...'³⁶

The observation of the Court is technically correct. The arrestee loses his/her volition when (s)he is in custody (because of formal Arrest or informal detention) and cannot be said to have not been deprived of the exercise of his/her liberty and rights. It is absolutely proper to state that a person can be stated to be in judicial custody when he surrenders before the authority of the Court and submits to its directions. To state that the similar cannot be inferred; when the person is informally detained by the police officials when it is quite obvious to infer that the person has already submitted to the authority, even though (s)he was not formally under Arrest; needs reasoning to back the position. Anything that compels a person to restrict his/her movements or volition owing to the obedience to the authority's formal or informal directions amounts to arrest. The definition of Arrest has to be such to cover the mental submission of the arrestee within its four corners. The reason is, Arrest's implications are not only on the physical aspect of the arrestee. Rather, the mental aspect is perhaps, more affected compared to the former. It cannot be ignored that the exercise of authority by the official commands mental submission as well. Moreover, the physical submission is because of the mental submission, and hence, the latter cannot be excluded to calculate the impact of Arrest on an individual.

Arrest brings humiliation, curtails freedom and casts a scar forever.³⁷ The statement is known to the police as well, and the case observes it as a battle between the lawmakers and the police and it seems that the police has not learnt its lesson: the lesson implicit in CrPC.³⁸It is still a tool of harassment, oppression and unfriendly behaviour with the public. It further states;

'[...] power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power to arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive [...].'³⁹

The misuse of Arrest could not have been introduced and explained better than the above extract from the case of Arnesh Kumar (supra). The mere allegation cannot furnish a good ground to conduct the Arrest of an individual to acclaim the societal well being. The arrestee shall never be forgotten as a part of society. Even if (s)he has been alleged to have committed an offence, his/her membership of the society does not end. How can (s)he be excluded when the welfare of the society is being thought about?

A police officer has to be sure before Arrest that Arrest is necessary to prevent the commission of any further offence or for proper investigation of the case (which would not have been possible unless the person is arrested) or from preventing the accused to tamper with the evidence in any manner or to prevent the accused from causing any threat or promise to a witness or to dissuade him from disclosing such facts before the Court or the police officer, or his/her presence cannot be procured unless (s)he is arrested. These are the conclusions that one reach considering the facts and circumstances of the case.⁴⁰ It is essential to state the facts and record reasons while arresting. It is equally essential for a police officer to ask himself the questions regarding the objective and purpose sought to be achieved by such Arrest.

An accused without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and section 57 of Code of Criminal Procedure, 1973; to be produced before the Magistrate without unnecessary delay and not beyond 24 hours of the Arrest; excluding the time necessary for the journey. During the course of the investigation, an accused can be kept in detention only when it is authorised by the Magistrate in the exercise of the powers u/section 167 of Code of Criminal Procedure, 1973. This power authorising detention has to be exercised with caution. The decision of the Magistrate may lead to subsequent deprivation of one's liberty, and therefore, detention cannot be ordered as a matter of routine.

It is necessary before authorising detention under section 167 of Code of Criminal Procedure, 1973; the Magistrate has to be assured of the legality of Arrest of the individual. If the Arrest of the individual affected by the police officer does not satisfy the requisites of section 41 of the Code of Criminal Procedure, 1973, the Magistrate is duty-bound not to authorise his/her further detention and also to release the accused.

It is necessary that the police officer should state reasons for the Arrest, and on the basis of such reasoning, the Magistrate should decide whether the Arrest was proper or not and dependent upon such reasoning; further detention should be authorised. The satisfaction of the Magistrate with respect to the reasoning given by the police officer should reflect in the detention order of the accused. It is the duty of the Magistrate to exercise his/her judicial mind to understand the real reasoning behind the reasons stated by the police officer for the Arrest of the accused.⁴¹ Ultimately, it is the judiciary on whose shoulders the responsibility is bestowed upon to ascertain the legality and essentiality of Arrest, instead of pitting the rights and liberty of the accused at one end against the 'societal well being'.

Criminal justice process, the state has to enact a comprehensive Victim's Right Bill in order to recognise their basic rights. Despite having various provisions at the national (brought by the amendment in 2008) and even at the international level also, victims are not provided with the proper status which they actually deserve. Still, there is a gap between the enactment of laws and the purpose for which they are enacted. There is a need to infuse this gap so that the existing lacunas can be removed. Apart from this, they are being further tortured and humiliated during the whole process of acquiring justice. There is something lacking behind in our law that has pointed out to meet the end of justice. Justice is a kind of truth in action, and ignorance is its foe. Therefore, being a part of the criminal justice system, a victim has the right to social justice as outlined in our constitution.

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