This article is written by Meenal Sharma, from Vivekananda Institute of Professional Studies. In this article, the author has discussed when a private person can make an arrest.
Table of Contents
Introduction
Commission of a crime is a grave act responsible for the disintegration of humanity which is why it is considered to be wrong against society. Thus, it is necessary to arrest the perpetrators for apprehending them and taking them into custody so that they do not pose a threat to society. To ensure law and order, it is indispensable to arrest the lawbreakers. An arrest is curtailing the liberty to ensure the obedience of the order of a court. It may also be done to prevent the commission of a crime or to ensure that a person suspected of a crime is forthcoming to be presented for a trial. Under normal circumstances, a police officer will arrest a person, however, in certain situations a person other than a police officer can make an arrest. The Code of Criminal Procedure, 1973 lays down provisions as to who can make an arrest followed by its procedure. Apart from police officers, the magistrate and a private person can also arrest a person. In this article, we will discuss the conditions under which they can arrest and the procedure.
Law under the Code of Criminal Procedure
According to Section 37 of the Code of Criminal Procedure, 1973, every person is bound to assist a magistrate or a police officer in situations such as:
- To prevent the escape of a person a police officer or magistrate is bound to arrest;
- To prevent/suppress breach of peace;
- To prevent an injury attempted at any railway/canal/telegraph or public property.
Similarly, the right of a private person to arrest is provided under the CrPC.
Arrest by a private person
Section 43 of the Code of Criminal Procedure provides for arrest by a private person and the procedure of such arrest.
According to this section, any person and not just a citizen can arrest or cause a person to be arrested who commits a non-bailable and cognizable offence in his presence. This also includes a proclaimed offender. The private person shall take over such a person arrested by him to a police officer. In case of absence of a police officer, he shall take him to the nearest police station. The police officer shall re-arrest such person under Section 41 if there is reason to believe that such person has committed a cognizable offence.
If a person, concerning whom there is reason to believe that he has committed a non-cognizable offence, either refuses to give his name and residence to the police officer or gives a name or residence which the police officer has reason to believe that it is false, Section 42 shall be made applicable on him. However, if the police officer has no reason to believe that such person has committed an offence, he shall release that person.
Arrest by magistrate
Section 44 lays down the provision of arrest by a magistrate. According to Section 44(1), a judicial or executive magistrate may arrest a person when an offence is committed by such a person in the presence of a magistrate, within his local jurisdiction. He may himself arrest such a person or order for such a person to be arrested. Further, he may commit the offender to custody subject to the provisions of bail under the Act.
As per Section 44(2), an Executive or Judicial Magistrate may arrest or direct the arrest of any person for in his presence within his local jurisdiction, provided he is competent to issue a warrant for the same at the time and circumstances.
The difference between the two subsections is that under Section 44(1) the magistrate is empowered to arrest a person and order him to custody whereas, under Section 44(2), the magistrate can only arrest the person who is suspected of committing an offence.
In Ram Chandra v. State of Uttar Pradesh (1977), it was observed that the omission of power to commit such suspects to custody is not accidental but deliberate.
Procedure of arrest
Section 46 of CrPC lays down the procedure of arrest by a police officer and also a private person. It includes the following:
- The police officer or private person shall touch or confine the body of the person only if there is no submission to the custody by word or action.
- A woman shall be arrested by a female officer and in no case shall a woman be touched by a male police officer. The submission of a woman to custody on oral intimation is sufficient. Moreover, a woman should not be arrested after sunset and before sunrise and under exceptional circumstances, a report is required to be made to that effect.
- In case the person forcibly resists the attempt to arrest or attempts to evade the arrest, the police officer of the private person can use all means necessary to effect the arrest.
- However, they do not have a right to cause the death of a person who is not accused of an offence not punishable with death or life imprisonment.
According to Section 49 of CrPC in the process of preventing the escape of the person arrested, he shall not be subjected to more restraint than necessary by the police officer or the private person.
Inform the accused grounds of arrest
As per Section 50(1) CrPC, the police officer or the private person arresting without a warrant is required to inform the arrested person the grounds for his arrest and communicate full particulars of the offence for which he is arrested.
The search of the arrested person
Section 50 of CrPC provides that whenever a person is arrested by a private person under warrant and is unable to furnish bail or cannot be admitted to bail legally, then the police officer to whom the arrested person is handed over by the private person may search him and place his articles in safe custody except necessary wearing apparels. When any article is seized from such a person, the police officer shall give a receipt of the articles taken in possession. The search of a female shall be made by a female police officer with regard to decency.
When is there a need to arrest other than the police
According to Justice Per Parke in Timothy v. Simpson (1835), the underlying principle of carrying out such an interest is for the preservation of peace. Any individual on seeing that the peace is broken may restrain the liberty of the person who breaks it so long his conduct shows that public peace is likely to be endangered by his acts.
Section 43 empowers any person and not just a citizen to arrest a person in cases where there are no other means to stop the offender. A private person is neither equipped nor trained to deal with offenders and the situation may escalate and cause a threat to the private person. Therefore, it is provided that such offenders must be handed over to the police or at the nearest police station shortly after the arrest by the private person. Moreover, since a private person is not competent to determine whether the offender is an offender and is eligible to be arrested, it has been made mandatory to hand him over to the police. The police will further investigate and take necessary action.
Precautions to be taken while making the arrest
If a private person arrests an offender, he shall take certain precautions as he is not trained or equipped to apprehend an offender. There are various risks to be taken into account as there can be serious consequences. The procedure of arresting the person which requires seizing the person by touch is likely to turn violent if the person does not have proper training. Therefore certain points need to be ensured such as:
- The private person must have reasonable cause to arrest a person, it should be most likely done when the private person has witnessed the crime being committed by a person and not when he is under the opinion or suspicion that a crime could have been committed by such a person;
- By attempting to arrest the offender the private person is likely to compromise his safety;
- There should be a high probability of the person arresting to contact a police officer to interact with the offender and handover the offender to the police;
- It is probable that the offender who would be subject to arrest possesses lethal weapons and is surrounded by other members who can easily corner the private person attempting to make the arrest.
Finally, after considering the above-stated facts, a private person decides to arrest an offender, he shall make sure to carry out the following steps:
- Call and inform the police about the arrest;
- He should directly tell the offender that he is arresting him until the police arrive at the location;
- The purpose of the private person is to simple detain the offender until the arrival of the police. Therefore, he shall not exert unnecessary pressure over the offender. He shall use the minimal possible force required to stall the offender;
- The private person shall not search the belongings of the offender as it can prove to be risky and dangerous and might instigate the offender to get violent;
- The private person shall ask the arrested person for his cooperation until the arrival of the police.
Illegal Arrest
An illegal arrest is when a person unlawfully restrains the personal liberty or freedom of movement of another person. If a private person tries to make an illegal arrest, such person against whom the arrest is made has the right to exercise private defence under section 96-106 of the Indian Penal Code and protect himself.
Observations and Judgments concerning arrest made by private persons
In Amrendra Nath v. State (1955), the court observed that the offence must be non-bailable and cognizable for a private person to make an arrest and not bailable or non-cognizable.
In the case of State v. Indra AIR 1960 Ori 23, it was observed that the words ‘in his presence’ indicate that the crime should have been committed before his eyes and they do not indicate that opinion or assumption/suspicion/information etc. of the private person. The private person must have personal knowledge to arrest the offender.
In Abdul v. State 1974 CrLJ 248, the court held that the right under section 43 must be simultaneously exercised with the commission of an offence.
In Queen Empress v. Potadu (1888) ILR 11 Mad 480, it was held that it was an enabling provision and a private person doesn’t need to arrest without a warrant but makeover such person to the police or the nearest police officer.
Conclusion
An arrest of a person is a procedure where the liberty of a person is restrained to apprehend him for the commission of a crime. This may also be done in case of suspicion so that the alleged offender could be presented in court. It is important to arrest lawbreakers to ensure peace, law and order in the society. Usually, it is the police which arrests a person but in certain situations, private persons or a Magistrate are also empowered to arrest a person. The Magistrate has the power to order the arrest of a person and under certain situations also order the custody of such a person. Whereas a private person shall hand over the person arrested to the police or nearest police station as soon as possible. He shall take into consideration various factors before arresting an offender as it could be dangerous. Further, after the arrest of the person, the private person should follow the necessary protocol. They need to have a presence of mind as they are not trained to deal with such situations. Although it is dangerous for private persons to arrest offenders, they can do a commendable job by stopping an offender from getting away before the arrival of the police.
References
- Takwani, Criminal procedure, 4th edition, LexisNexis
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