Home / Politics / Policy /  There’s a world of difference between arrest and detention

New Delhi: Trouble broke out as Congress vice president Rahul Gandhi, Delhi chief minister Arvind Kejriwal, his deputy Manish Sisodia were detained on Thursday by the police when they made an attempt to visit the family of an ex-serviceman, Ram Kishan Grewal, who allegedly committed suicide over the One Rank One Pension (OROP) issue.

On Thursday, the political leaders were formally detained and taken to a nearby police station for a few hours before being released by the end of the day.

To be sure, the police action—detaining the political leaders and restricting their freedom of movement—cannot be held to be an arrest under the law.

Mint takes a look at the difference between detention and arrest, while explaining the remedies available to the person concerned in each of the cases:

The main difference between detention and arrest is whether a person is charged with a crime or not.

In case of a person being detained, he is not formally accused of committing a crime but is simply restricted and kept in police custody on a reasonable suspicion. During the time in custody, he is questioned or investigated by the police authorities. After the police questioning, the person detained would be released.

The situation would be entirely different if a person was arrested. A person can only be arrested if he is charged for a crime and once he is arrested and has to be produced before a magistrate within the next 24 hours.

In certain situations, an initial detention may lead to an arrest.

For example: a person is detained by police authorities on suspicion of possession of drugs which he is then found on him, leading to an arrest. Thus, detention may be seen as a lesser form of arrest.

During the time a person is kept in custody, under provisions of Article 22 (safeguards for arrest and detention) of Indian Constitution, he would have the right to consult a lawyer of his choice.

Once a person is detained, although he may have not undergone any monetary loss, his personal liberty and right to life is curtailed. Such a situation under the Indian law is considered a civil wrong (law of sorts) for which compensation may be sought.

In one such instance, when an MLA of Jammu & Kashmir was detained by the police when he was going to attend the assembly session, his detention was considered to have deprived him of his constitutional and fundamental right to life (Article 21) guaranteed under the Constitution and the Supreme Court directed a compensation of Rs50,000 for the violation.

In case of an arrest, as a right, the person arrested will have to go a step further and seek bail (as a right under the law) from the court for the offence that he is charged with. Once he is released on bail, he would have to appear in court to refute the charges against him. In few cases, an anticipatory bail may be sought.

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