Yes, they can but the
difference is that it would not be called an arrest but rather preventive
detention. The police has got the power to detain even if you have not
committed any crime as per the law. Let’s have a look.
Arrest
An
arrest is made when the person is charged with a crime. And once he is arrested
he needs to be produced before the magistrate within 24 hours u/s 57 of the
CrPC. There is provision for bail in arrest and in few cases, anticipatory bail
is also sought u/s 438 of the code. If the person arrested is not produced before court within 24 hours then the arrest would amount to be illegal and proceedings will start against the officer in charge.
The
power to arrest is given under section 41 - 44 of the Criminal Procedure Code
1973. Any police office u/s 41 and u/s 42 (arrest on refusing to give name and
residence) may arrest without warrant for the cognizable offence. Even
magistrate has got the power to arrest u/s 44 and a private person can also
arrest under special circumstance u/s 43 of the code. As per the ruling of the
supreme court in the matter of Citizen for Democracy v State of Assam (1995),
now handcuff is not allowed during arrest as a routine but only as a last
refuge. For handcuffs, orders need to be taken from the magistrate first, as the
right to life with dignity is prevented of every citizen under Article 21 of
the Constitution.
Preventive
Detention
In
the case of detention, the person has not committed any crime, or he is not
liable for any offence. But rather police detain under section 151 of the CrPC
any person if the police is satisfied and there is reasonable apprehension,
that in order to prevent the cognizable offence to happen (which has not yet
committed, but it appears to be committed) there is no other way but only by
means of arrest. Then the police have got the discretionary power to invoke
this provision. Police do not require an arrest warrant or the orders from the magistrate.
The police cannot detain a person under this section for the time period exceeding 24 hours from the time of the arrest. Nor the police have the right to interrogate the detained person. This section merely restricts the person from committing any cognizable offence. Also, the reasonable apprehension should be proven by the police if the detainee files the case against them. and according to the court of law, reasonable apprehension does not mean mere suspicion, but enough reasons which made one believe that an act in all probabilities might be committed. Hence this discretionary power is subjected to certain restrictions, in order to safeguard citizens fundamental right under article 21 and 22 of the Constitution. Hence for illegal detention the remedy lied in these both articles.
No person can be detained for more than 3 months unless the permission has been taken from the High Court as per under article 22 clause (4).
If the person challenge his detention in the court of law and police officials does not able to prove and give valid justification for the detention then the detention would be held illegal by the court. The court can start proceeding against the police officer itself who arrested the person for misuse of powers. He would then have to face departmental inquiry or investigation (initially and trial in later stage) and even may remain suspended during that time period. That police officer would be liable under section 220 of the IPC and may face imprisonment up to 7 years.
ADM
Jabalpur v SS Shukla[1], the Supreme Court held
that the article 21 and 22 will remain suspended during emergency. And the people who
were arrested during the time of emergency under the Maintenance of Internal
Security Act is valid. But it was later in the 44th amendment which
said that article 21 and 22 will not be suspended during the time of emergency. It is
expressly given under article 359 of the Constitution.
Article
21: Protection of Life and Personal Liberty
Article
22: Protection against Arrest and Detention in certain cases
[1] 1976 AIR 1207
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