An Arrest consists of taking into custody of another person under authority empowered by law for the purpose of holding or detaining that person to answer a criminal charge and preventing the commission of criminal offence.
State Of Haryana VS. Dinesh Kumar, AIR (2008) S.C
In this case apex court observed that the expression ‘Arrest’ has neither been defined in the Criminal Procedure code 1973, nor in the Indian penal code 1860 or any other enactment dealing with Criminal offences.
But only indication as to what would constitute arrest be found in section 46 of the Criminal Procedure Code which described the mode in which arrest is to be made.
The court cited the meaning of Arrest give in Halsbury’s law of England, the word “Arrest“ when used in its ordinary sense means the apprehension or restraint or the deprivation of one’s personal liberty.
Directorate of Enforcement VS. Deepak Mahajan AIR (1994 S.C)
In this Case Hon’ble Supreme Court held that the word ‘Arrest’ or Custody are not synonymous terms. Taking a person into judicial custody is followed after the arrest of a person.
Types of Arrest
There are two types of arrest –
- Arrest made in pursuance of a warrant issued by the Magistrate under section 70 to 81 of the code.
- Arrest made without a warrant but made in accordance with some legal provisions permitting such an arrest Sections 41- 45.
Who can make an Arrest?
It can be made by the following persons-
- Arrest by police officer
- Arrest by Magistrate
- Arrest by private persons
Arrest by Police Officer
Section 41 of the Criminal Procedure Code 1973, defines that an arrest can be done by police officer without warrant and without an order from a Magistrate in the following cases –
- Who commits, cognizable offence in the presence of a police officer.
- Against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exist that he has committed a cognizable offence punishable with imprisonment less than seven years or which extend to seven years whether with or without fine if-
- The police officer has reason to believe that such person has committed the said offence.
- Police officer is satisfied that such arrest is necessary-
- To prevent any further offence by such person
- For proper investigation
- Present such person from causing evidence disappear or tempering
- To prevent such person from making any inducement, threat or promise to any person who acquainted with facts of the case
- The presence of such person before court cannot ensured unless such person is arrested
- Police officer is satisfied that such arrest is necessary-
- Against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term more than 7 years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence.
- Who has been proclaimed as an offender either under this code or by order of the state Government.
- In whose possession anything is found which reasonably suspected to be a stolen property and he has committed an offence relating to such thing.
- Who abstract police officer while he executive his duty.
- Who is reasonably suspected of being a deserter from any of the Armed Force of the Union.
- If he committed any of act out of India.
- Who being a release convict, commits breach of any rule made under sub-section (5) of section 356 of Cr.PC
- For whose arrest any requisition, written or oral has been received from another police officer.
Besides the above provisions, the police officer in charge of a Police Station may, arrest without warrant any person belonging to one or more of the categories of persons specified in section 109 or 110 of the code, e.g. Habitual Robbers, House- Breakers, Thieves, or Habitual Receiver of Stolen Property or Habitual Kidnapper etc.
The word ‘May’ used in section 41 of the code indicates that the Police Officer has discretion in making arrest without warrant.
When the police officer arrest any person without warrant or without the order of the Magistrate, then the magistrate has to be more careful about such arrest.
Joginder Kumar VS. State of UP [AIR (1994) SC]
In this case the Hon’ble Supreme Court stated that “ No Arrest can be made merely because it is lawful to do so, whenever the arrest is made, there must be a justifiable reason to arrest any person”.
The word Credible information or a reasonable suspicion in this section, is based on unspoiled or definite facts and materials and those facts must be consider by the police officer before taking any arrest.
State VS. Bhera 1997
The Hon’ble Court held that “Reasonable suspicious” and “Credible Information” must relate to definite averment which must be considered by the police officer himself before he arrest the person.
Can a police officer Arrest any person without warrant or without the order of Magistrate in Non Cognizable offences ??
- Section 42 of the code allow a police officer to Arrest a person for a Non Cognizable offence, if he refuses to give his name and residence to the police officer.
- If he give his name and residence but that is false than police officer arrest only for ascertained his name and residence.
Arrest by Private Person
Under Section 43 of the code clearly stated that a private person may Arrest or cause to be Arrested any person who in his presence commits a
- Non Bailable Offence
- Cognizable offence
- Any proclaimed offender
Any private person who made any Arrest must without unnecessary delay make over/(transfer) any person arrested, to a police officer of nearest police station.
If such private person keeps the arrested person in his own custody he will be guilty of wrongful confinement as given in under section 342 Indian Penal Code.
Wrongful confinement means: (Wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said wrongfully to confine that person. The person who commits that wrong shall be punishable with imprisonment for one year, or fine of one thousand rupees, or both).
The private person can not arrest any other person when there is merely attempt to commit an offence by that person, the power of private person to arrest any person is available only in limited circumstances.
Arrest by Magistrate
Section 44 of the code talks about Arrest by Magistrate. The provisions are as under-
- Any Magistrate whether Executive or Judicial may arrest a person without a warrant when any offence is committed in his presence, within his local jurisdiction.
- The Magistrate himself arrest or direct any person to arrest, in his presence the offender for whose arrest he is competent at the time and in the circumstances to issue a warrant.
- A Magistrate cannot try such cases himself.
- The Magistrate can not detained such arrested person beyond 24 hours and must produced before another Magistrate for obtaining an order of remand to custody under section 167(1).
How Arrest is Done?
Section 46 of Code describes the mode in which Arrest are to be made with or without warrant. The mode are as follows-
- Section 46(1)of the Code provided that “in making an arrest the police officer or other person making the same shall be actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or by action”.
- Since arrest is a restrain on the liberty of the person, it is necessary for the person being arrested either to submit him to custody or to touch or confine his body.
- Mere oral declaration of Arrest by the arrestor without getting submission to custody or physical touching to confine the body will not amount to arrest.
So, the submission to custody may be by express words or by action.
Bharosa Ramdayal VS. Emperor AIR 1941 S.C
The Hon’ble Supreme Court held that “if a person making a statement to the police accusing himself of committing an offence, he would be considered to have submitted to the custody of the police officer”.
Similarly, if the accused proceed towards the Police Station as directed by the Police Officer, he has submitted to the custody.In such cases, physical contact is not required.
Birendra Kumar Rai VS. Union of Indian AIR (1992 Allahabad)
The Court held that “An Arrest need not be by handcuffing to the person, it can also be completed by spoken words if the person submits him to custody”.
Section 46(1) Amended by amendment Act 2009, came into effect on 31-12-2009.
Provided that where a women is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person if the women for making her arrest.
In other words a Police Officer not to touch the women for making an arrest unless there is necessary to arrest her and arrest made by a women Police Officer and the such women herself summit her custody.
Power to use force by Arrestor
- Section 46(2) of the Code provides that “If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such Police Officer or other person may use all means necessary to effect the Arrest”.
- In this clause the legislature give wide power to the police officer or other person when they made an Arrest provided it is necessary for making an Arrest.
Nazir Mohammad VS. Kasturchand Gomaji co. AIR 1951, Karnataka H.C.
The court held that the words “All Means” given Under Section 46 (2) are very wide and including the taking of assistance from others in effecting the Arrest.
- Section 46(3) of the code provides that “Nothing in this Section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life”.
Clause (3) is an exception of clause (2) how?
- Clause (2) & (3) must read together, as in clause (2) stated that the person making an Arrest may use ‘All Means‘ which is necessary to make an Arrest but clause (3) is the exception of those words in such a manner as a Police Officer or other person making an Arrest cannot cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
- One side clause (2) of Section 46 given all powers to the arrester which is necessary for making an arrest whilst in same time clause (3) imposed some restriction for doing so.
- Also section 49 of the Code stated that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.
Karan Singh VS. Haradayal Singh, 1979 P&H, HC
Facts of the case – where the police persons went to spot with the intention to disperse and arrest members of an unlawful assembly and in this process they fired openly at such assembly and cause the death of an innocent person.
The court stated that “protection under section 46 cannot be claimed by such police officers”.
Procedure for Arrest of a women
- Section 46(4) of the code inserted by the Amendment Act, 2005 which is came into effect on 23-6-2006. It provides that “save in exceptional circumstances, no women shall be arrested after sunset and before sunrise, and where such exceptional circumstances exits, the women police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class, within whose local jurisdiction the offence was committed or the arrest is to be made”.
- In this clause there is clearly mentioned that a women cannot be arrested after sunset and before sunrise except prior permission to the Judicial Magistrate of first class. If such Arrest is unavoidable, the permission shall be obtain only by the women Police Officer through written report.
Guidelines Regarding Arrest/Detention
Arrest can be made with more caution and care, no police officer can harm any person whom he is arresting.
To prevent the atrocities and custodial death, the Supreme Court issued directions related to this in the case of –
D.K. Basu VS. State of West Bengal AIR (1997) S.C
The Hon’ble Supreme Court issued following directions-
- The police personnel when carrying out the arrest and handling the interrogation should bear an accurate and clear identification and name tags with their designations.
- The police officer carrying out the arrest shall prepared a “Memo of Arrest” at the time of arrest and such memo must be attested by at least one witness ( such member may be of arrestee’s family or a respectable person of the locality from where arrest is made). It shall also be countersigned by the arrestee and shall also contain the time and date of arrest.
- A person who has been arrested/detained shall be entitled to have one friend/relative or other person known to him or having interest in his welfare being informed as early as possible.
- The time and place of arrest and venue of custody of an arrestee must be notified by the police where the next friend/relative of arrestee lives outside the district/town through the Legal Aid Organization in the District and the police station of area concerned telegraphically within a period of 8-12 hours of the arrest.
- The Arrestee must be aware of his right to have someone informed about his arrest/detention as soon as he is put under arrest/detention.
- Any entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the arrestee who has been informed of the arrest and the name and particulars of the police officials in whose custody such arrest is made.
- The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody.
- Copies of all the documents including the memo of arrest should be sent to the area Magistrate for his record.
- The arrestee may be permitted to meet his lawyer during interrogation, not throughout the interrogation.
Later, there was some new Sections inserted in Code, which protected the right of an arrested person, these Sections are –
- Section 50-A which inserted Amendment Act, of 2005, with effect from 23/6/2006 stated that –
- Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or any other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information.
- The police officer shall inform the arrested person of his rights as soon as he is brought to the police station.
- An entry of the fact that who has been informed of the arrest of such person shall be made in a book to be kept in the police station.
- It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirement of all above mention facts have been complied with in respect of such arrested person.
- Section 60-A inserted by Amendment Act, 2009 with effect from 31-12-2009 as “ No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest”.
Section 55-A which was inserted Amendment Act of 2009, came into force 31-12-2009, provides that “ It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused”.
This Section specially mentioned in the Code to prevent the custodial torture because the state’s action, however, must be “Right, just and fair”. Just to check the abuse of police power, transparency of public action and accountability are two possible safeguards. The police force needs to be infused with basic human values and made sensitive to the constitutional ethos.
Rights of an Arrested Person
- Right to know the grounds to arrest.
- Right to know the provisions regarding bail.
- Right to be taken before Magistrate without delay.
- Right to consult legal practitioner.
- Right to free Legal Aid.
- Right to be examine by a medical practitioner.
The arrest of any person should be legal and justified and should also follow the procedure established by law. The Police has wide power to make an arrest facilitate but these powers are not absolute and are subject to certain restrictions. These restrictions are the rights of an arrested person. The detail discussion of these rights are as follow:
Right to know the grounds of arrest
- The foremost requirement of a lawful arrest is that the arrestee must know the grounds of arrest. Section 50(1) of the Code provides that, “Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest”.
- Whenever a person is arrested with a warrant, the Police Officer executing such warrant of arrest shall notify the substance thereof to the arrestee. This provision is mentioned under section 75 of Code.
- Under Section 55 of the Code clarified that when a subordinate officer is deputed by a Senior Police Officer to arrest a person, before making the arrest, such subordinate officer shall notify to the arrested person the substance of the written order given by the senior Police Officer in which specifying the grounds of offence or other cause for which the arrest is to be made.
- The right of accused to know the grounds of arrest is also a constitutional right guaranteed under Article 22(1) of the Constitution as “ No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest”.
Right to Know the Provisions Regarding Bail
- Under Section 50(2) provided that “where a police officer arrests without warrant any person other than a person accused of a non- bailable offence, he shall inform the person arrested that he is entitled to be released on bail and may arrange sureties on his behalf”.
Right to be taken before Magistrate without delay
- The arrested person should be immediately produced before a Magistrate without any delay. Under Section 56 of the Code provides that “A Police Officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, taken or send the person arrested before a Magistrate having jurisdiction the case, or before the officer in charge of a Police Station”.
- Under Section 76 of the Code also provides that in case of arrest with warrant, the Police Officer or other person who executing such warrant shall without unnecessary delay produce the accused before Magistrate.
- Same time Under Section 57 of the Code provides that “ no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court”.
- The right which is provided Under Cr.P.C also incorporated in the Constitution Under Article 22(2) as one of the fundamental rights.
In re Madhu Limaye
“This right of the accused is not merely a formality but it is substantial protection accorded to an arrestee so that if there is no case against him he may be released forthwith or released on bail.”
Right to Consult With Legal Practitioner
- Under Section 41D of the Code which inserted by Amendment Act, 2009 and with effect from 1- 11-2010 mentions that, when any person has arrested and interrogated by the police officer then the arrestee shall be entitled to meet an advocate of his choice during interrogation.
- This right of the accused is also mentioned Under Article 22(2) of Constitution as a constitutional right of the arrestee and no one can curtail such right.
Joginder Kumar VS. State Of U.P. AIR 1994 S.C
The Hon’ble Supreme Court stated that “whenever the accused consult with his Advocate, it may do so in the presence of a Police Officer”.
Right to Free Legal Aid
The right to free Legal Aid has provided to the accused to secure equal & Fair Justice. It is the duty of each State to provide free legal Aid to the accused/any person.This is mentioned Under Article 39-A of the Constitution.
Khatri II VS. State of Bihar (1981) S.C
- The Hon’ble Supreme Court has held that the State is under a constitutional obligation to provide free legal aid to an indigent accused person.
- The Court further held that this right of an indigent accused person does not come into existence only at the time of trial but exists at the time when the accused is produced before the Magistrate at the first time and also when remanded by time to time.
- The Supreme Court also stated that if the state failed to inform the accused of this right then it will vitiate the whole proceeding of the trial, therefore a duty is imposed on all Magistrate and Courts to inform the indigent accused of his right to get free Legal Aid”.
Right to be Examine by a Medical Practitioner
- Under Section 54(1) stated that “When any person is arrested, he shall be examined by a medical officer in the service of Central or State Government and in case the medical officer is not available then by a registered medical practitioner soon after the arrest is made”.
- Provides that where the arrested person is a female the examination of the body shall be made only by or under the supervision of a female medical officer and in case the female medical officer is not available then by a female registered medical practitioner.
Also Read :