WHAT IS ARREST?
Neither the Code of Criminal Procedure, 1973 (CrPC) nor the Indian Penal Code, 1860 (IPC) define the term “arrest”. The definition has not been included in any legislation dealing with criminal offences. Section 46 of the CrPC, which deals with ‘How an arrest is made,’ is the only indication of what constitutes an arrest.
In layman’s terms, an arrest is the act of bringing a person into custody because he or she is accused of committing a crime or infraction. It is carried out when a person is caught for wrongdoing. Following an arrest, other processes such as interrogation and investigation are carried out. It is under the purview of the criminal justice system.
In an arrest action, the individual is physically detained by the appropriate authorities. The dictionary definition of the term “arrest” is “to grab or capture, to bring to a halt or to render inert.” From all of the connotations, it is clear that arrest implies to halt a person's action. Police or a Magistrate can arrest someone.
TYPES OF ARREST
When broadly characterized, arrest is of two types-
Arrest made in pursuance with a warrant issued by the magistrate.
Arrest made without any warrant but within the established legal provisions.
Private Arrest is another sort of arrest in which a person is arrested by another person. However, it is only permitted if a person commits a non-bailable offence in the presence of another person or is caught for committing a crime against a person or his property and is not given the right location of his abode or it is unknown. However, before arresting someone, there must be adequate apprehension and reasonable reasons to do so.
Arrest by warrant
. A warrant is issued on behalf of the state by a Judge or a Magistrate. An arrest warrant permits the arrest or imprisonment of a person, as well as the capture or seizure of a person’s property.Without a warrant, the police cannot conduct such an arrest. Section 41(2) of the CrPC, 1973 stipulates that in the case of a non-cognizable offence and a complaint, a person cannot be arrested without a warrant and an order of the court.
Arrest without warrant
An arrest without a warrant occurs when a police officer has the authority to arrest someone without a warrant. It can only happen if a person is a suspect in an arrestable offence. Section 41(1) of the CrPC specifies many reasons for making an arrest without a warrant. It is frequently done in the case of a cognizable offence, a justifiable complaint, or when reliable information is obtained.
Arrest on refusal to give name and residence
Section 42 of the CrPC specifies the procedure to be followed in the event of an arrest for refusing to provide one’s name and address.
Section 42(1) states that if a person who has committed a non-cognizable offence refuses to disclose his identity or address or gives a fake name and address on the officer’s demand, he may be arrested to determine his correct name or domicile.
According to Section 42(2), the person apprehended may be freed after determining the genuine name or residence, but only after executing a bond, with or without sureties, to appear before the magistrate if needed. If the person is not a resident of India, the bond must be secured by an Indian security or securities.
Section 42(3) states that if the person’s genuine identity or residence is not found within twenty-four hours, or if he fails to execute the bond or requisite sureties, he must be produced before the magistrate with jurisdiction.
Arrest by a private person
Section 43 of the Criminal Procedural Code specifically provides for the arrest of a private person.
Section 43(1) states that a private person may arrest another person who commits a non-bailable offence or any proclaimed offender and take the accused to a police officer without wasting any unnecessary time, and in the absence of the officer, the accused must be taken to the nearest police station.
Section 43(2) states that if the arrest falls under Section 41, the police officer must re-arrest the person.
Section 43(3) states that if there is reasonable cause to suspect he has committed a bailable offence and refuses to reveal his genuine name or address to a police officer, he will be dealt with in accordance with Section 42. However, he will be freed if there is no reasonable suspicion that he committed an offence.
Arrest by magistrate
A Magistrate in this context might be either an executive or a judicial Magistrate. According to Section 44(1) of the CrPC, when an offence is committed in the presence of a magistrate within his local jurisdiction, he has the authority to arrest that person personally or order any person for arrest and send the accused to jail subject to the conditions applicable to bail.
In addition to clause 1, Section 44(2) states that the Magistrate may arrest or direct the arrest of any person under his presence, within his local authority, who he is competent to arrest at that time and in those circumstances.
An exception of the Armed forces
Members of the Armed Forces are shielded from arrest under Section 45 of the CrPC.
Section 45(1) stipulates that no member of the armed forces may be arrested for anything done while performing official responsibilities unless the Central Government consents. It is subject to the conditions outlined in Code Sections 41-44.
Section 45(2) states that the State Government may, by notice, require that the sub-Section (1) apply to any class or category of personnel of the Armed Forces entrusted with the protection of public order, as stated therein, at any time they are serving. In other words, the State Government, like the Central Government, has the authority to exercise the powers listed in sub-Section 1 (1).
PROCEDURE OF ARREST
There is no comprehensive code that provides the entire operation. Section 46, on the other hand, details how an arrest is made.
It is the only location where the term “arrest” is used. Section 46(1) states that during an arrest, the police officer or person making the arrest must restrain the apprehended person's body. In the case of women, her acquiescence to the custody of an oral intimation of arrest will be inferred, and she shall not be touched by the police officer at the time unless the police officer is female. However, in extreme circumstances, contrary to what is said, can be done. Section 46(2) authorizes police to use a reasonable amount of means of force to achieve an arrest when the individual being detained forcefully opposes or seeks to avoid arrest.
Example: What happened recently in the Hyderabad Rape case (2019) is a fantastic illustration. The police officer using his authority under this Section used force to prevent the accused from fleeing. The court will look at whether or not the level of force used was justified.
Section 46(3) does not grant the power to kill someone who is not charged with a crime. In such circumstances, the penalty is death or life imprisonment and Section46(4) states that a woman cannot be detained after sunset or before daybreak, except in extraordinary circumstances, and that in such cases, the woman police officer can acquire prior authorization to make an arrest from the Judicial Magistrate with local authority by filing a written report.
POST ARREST PROCEDURES
To begin, Section 50(1) of the CrPC states that it is the obligation of the police officer or any individual apprehended without a warrant to tell the person arrested about the basis for the arrest.
Second, if the arrest is undertaken pursuant to a warrant, the police officer is obligated by Section 75, CrPC to tell the person apprehended about the nature of the arrest and, if necessary, to produce the order. If this is not done, the arrest will be declared unlawful.
The Indian Constitution backs this up and emphasizes it in Article 22(1), a basic right. It specifies specific rights that the accused has at the moment of arrest (fundamental in nature). It states that no one who is arrested should be kept in jail without first being notified of the grounds for his arrest and having the opportunity to speak with a legal practitioner of his choice. In the instance of Madhu Limaye, the petitioner and his colleagues were not notified of the reason for their detention. He filed a complaint with the Supreme Court under Article 32, claiming that it was a breach of his basic right. The Supreme Court found that the petitioner's fundamental and important rights had been violated.
Third, when a police officer makes an arrest without a warrant, it is his responsibility to appear along with the arrested persons before the magistrate without undue delay (usually within 24 hours). It is also stated that the detained individual may not be brought anywhere other than the police station before appearing before the magistrate. This is allowed for in CrPC Article 22 with Sections 56 and 76.
Aside from that, the police officer must always wear a clear, visible, and accurate identification of his name, which may aid in his identification. As soon as the arrest is made, a memo should be created that is witnessed by at least one witness and countersigned by the apprehended individual.
Under Sections 41D and 303 of the CrPC, the accused individual has the right to consult an advocate of his choice during questioning. Apart from these, numerous more rights and processes are covered in the next Section of the article.
Search of an arrested person
Section 51(1) states that the arrested individual may be searched for objects on his or her person, and that the receipt for all such things must be handed to that person.
Section 51(1) states that a female search will only be conducted by a female who maintains some level of decency.
Seizure of offensive weapons
The officer or person making the arrest has the authority to take any offensive weapon he has and deposit all weapons with the court or officer before whom the person making the arrest is required under the Code to bring the person detained (Section 52).
Medical examination of accused
Section 52(1) provides that when a person who is arrested for a charge of the offence of such a nature that there are reasonable grounds for believing that such examination will produce evidence related to the commission of the offence. It is lawful for a registered medical practitioner under the request of the police officer, not below the rank of sub-inspector to carry about an examination with the use of reasonable force. But this force cannot be too much.
Section 52(2) says that when the examination is done of a female, it should only be done by a female or under the supervision of a female registered medical practitioner.
Section 53A discusses the method of medical examination of a person accused of rape: Article 20 of the Constitution provides that no person who is an accused can be compelled to give evidence against himself. This provision comes into play in relation to this Section.
Case Law: State of Bombay vs. Kathi Kalu Oghad[1]
In this case, the Supreme Court provided certain guidelines in respect of Testimonial Compulsion or Right to self-incrimination. The mere fact that a statement was made in police custody cannot be proposed by the accused that the statement made at such time will be of compelling him to be a witness against himself. The mere answer to a question asked by a police officer which is voluntarily given would not amount to ‘compulsion’. The meaning of the “terms to be a witness” and “furnishing evidence” is different if seen from a broader view. As it includes not only merely giving an oral evidence but also the production of documents or giving material at a trial to prove the innocence or guilt of the person accused. The term “to be a witness” does not include the thumb impression or impression of foot. “To be a witness” means imparting knowledge of relevant facts in oral or written in a court. The court has gone beyond the strict literal interpretation of the expression “to be a witness” which now bears a broader meaning. To bring the statement in question with the prohibition of Article 20(3), the person must be in the character of the accused person at the time he made the statement.
Identification of an arrested person
According to Section 54A, when a person is arrested on suspicion of committing an offence and his identification by any other person is deemed necessary, the court, having jurisdiction, can direct the person so arrested to submit to identification in front of any person or persons as the court deems fit for the purpose of investigation. When the person identifying the detained person is mentally or physically impaired, the procedure of identification will take place in front of a Judicial Magistrate, who will guarantee that he identifies using a medium that he considers comfortable. And this identification must be documented on camera.
PROCEDURE WHEN DELEGATED PERSON ARRESTS WITHOUT WARRANT
When a delegated person arrests an accused without a warrant, any individual thus arrested must provide the officer with the basis for the arrest in writing. The officer must advise the person detained of the nature of the arrest and, if necessary, display the person arrested the order of substance.
CONCLUSION
Every citizen in the country has rights. Even a person accused of an offence has some rights, some of which are fundamental in nature. In the event that these provisions are violated, the accused may seek redress in court. On the other hand, police officers are expected to follow the method outlined in Chapter V of the Code of Criminal Procedure, which outlines specific parts pertaining to rigorous guidelines, protocols, and the rights of an arrested individual. Many innocent people would have become victims of social or physical harassment, abuse, exploitation, and other if these Sections had not existed. Everyone has the right to live with dignity, regardless of whether they are accused or victims.
[1] 1962 SCR (3) 10
Witten By,
Kalpana Nailwal,
Intern, Chanchlani Law World
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