This article is written by Ashish Sharma of Rajiv Gandhi National University of Law, Patiala. The author has discussed the intricacies pursuant to the arrest of a person.
For decades across the globe, there has been a debate regarding the validity of preventive arrest by law enforcement. The preventive arrest is simply done to stop a person from committing a cognizable offence in future. Historically, the preventive arrest was infamously be used in India during British rule under the Bengal State Prisoners Regulation, 1818 which empowered the government to detain or arrest anybody on mere suspicion.
The main object of criminal law is to protect society from criminals and lawbreakers. The criminal law consists of both procedural law and substantive law. In India, substantive law is the Indian Penal Code, 1860 and procedural law is the Code of Criminal Procedure, 1973.
The procedural aspects of arrest are laid down in the Code of Criminal Procedure; under this, the complete process is mentioned related to the arrest of a person who has committed any offence. Chapter V of the Code of Criminal Procedure, 1973 deals with the arrest of a person under section 41 to section 60.
Persons Authorised to Arrest
Code of Criminal Procedure empowers three people to issue the process of arrest. They are as follows:
- A police officer with or without a warrant.
- A magistrate.
- A private person.
Meaning of Term Arrest
We use the term ‘arrest’ quite often in our day to day business. Normally we see a person who does or has done something against the law to be arrested. The term arrest can be defined as, “a seizure or forcible restraint, an exercise of power to deprive a person of his or her liberty”. In the criminal arrest of a person is an important tool for bringing an accused before the court and prevent him from escaping.
Thus after an arrest, a person’s liberty is under full control of arrester. But every deprivation of liberty or physical restraint should not be interpreted as the arrest. Only the deprivation of liberty by a legal authority in a professionally competent and skilful manner amounts to arrest.
The major purpose of arrest is to bring the person before a court and secure administration of law. An arrest also serves the purpose of notifying the society that a particular individual has committed an act which is against the society and act as a remark to deter crime in the future.
However, even if a person against whom no accusation has been made can also be arrested for certain purposes like removal in safe custody from one place to another. For example, removing a minor girl from a brothel. Arrest should not be confused with custody because both have different meanings. Judicial custody of a person is followed after the arrest of a person by a magistrate on appearance. In every arrest, there is custody but not vice versa.
Arrest without a Warrant
Yes, a person can be arrested by police officers or any private person without warrant ordered by the court. Particularly the police officers may arrest a person without a warrant under certain conditions. The conditions to arrest a person without warrant mentioned under Section 41 of the Code of Criminal Procedure are as follows.
- A person who is concerned with any cognizable offences such as murder, rape, theft etc. can be arrested without a warrant. Cognizable offences are the offence, for which a police officer in accordance with the first schedule of CrPC or guided by any other law for the time being in force, can arrest without warrant.
- Cognizable offences are those offences which are very serious in nature. Example unnatural offences, rape, kidnapping etc. If any cognizable offence has been committed, a police officer can investigate without the magistrate’s permission.
Section 154 of CrPC provides that, “under a cognizable offenses, if the police officer receives any information relating to the commission of a cognizable offence, if given orally shall be reduced to writing and be read over to informant, whether given in writing shall be reduced to writing and shall be signed by the informant and substance shall be entered in a book to be kept by officer in form prescribed by state government”.
Section 154 provides further that, “if any person aggrieved by a refusal on the part of the officer in charge of police station, may send the substance of such information by post to Superintendent of Police, who is satisfied that such information discloses any commission of cognizable offences, shall either investigate himself or direct an investigation to be made any police officer subordinate to him”.
- Who has been in possession of any housebreaking weapon without any lawful excuse?
- Who has been proclaimed as an offender either under CrPC or any other order by State government or any law in force?
- Who obstructs any police officer while performing his duty or who have escaped or make attempts to escape from lawful custody.
- Who has been concerned in any law or against whom a reasonable complaint has been made or credible information has been received, of his having been involved in an act committed at any place outside India, if committed in India would be punishable of an offence and for which he is under law relating to extradition or otherwise, liable to be apprehended or detained in custody of India.
- Who is reasonably suspected of being a deserter from any of the Armed forces of Union?
- Who, being released as a convict, commits a breach of any rule mentioned under sub-section 5 of section 356 i.e. the state government may be notification make rules to carry out the provisions of this section relating to the notification of residence or change of or absence from, residence by released convicts.
- For whose arrest any requisition has been received from another police officer, provided that the requisition must specify the person to be arrested and the reason for which the arrest is to be made and therefrom it appears that the person must be lawfully be arrested without a warrant.
The police also have the power to arrest a person if he denies giving his correct name and residential address or the police have a reason to believe that the furnished information is wrong. Police are empowered under section 42 of the Code of Criminal Procedure to arrest a person to identify the actual place of residence. Provisions in section 42 are:
“(1) When any person who, in the presence of police officer has committed or has been accused of committing a non-recognizable offence refuses on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained”.
The police officers are empowered by virtue of section 151 of the Code of Criminal Procedure to arrest a person to prevent the commission of cognizable offences. Provisions under section 151 are:
“(1) A police officer knowing of design of any cognizable offence may arrest the person so designing it, without any orders from a magistrate and without a warrant, if it appears to such officer that the commission of offence cannot be prevented otherwise.
(2) No person arrested shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required by any other provisions of Code or any law for the time being in force”.
Process of Arrest
The police officers have to follow a set of rules while arresting any person. The mode of arrest is mentioned under section 46 of the Code of Criminal Procedure whether it is done with the warrant or without the warrant. In arresting a person, the person so arrested should not be handcuffed unless the police have obtained orders from a magistrate in this regard. Provisions of section 46 are:
(1) In making an arrest the police officer or any other person making the same shall actually touch or confine the body of a person to be arrested unless there is a submission to the word by custody.
Provided that where a woman is to be arrested unless the circumstances indicate to the contrary, her submission to custody on an oral intimation shall be presumed and, unless the circumstances otherwise require or unless the police officer is female, the police officer shall not touch the women for making her arrest.
(2) If such person forcibly resists the endeavour to arrest him, or attempts to escape the arrest, such police officer or other people may use all reasonable necessary means to effect the arrest.
(3) 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 life imprisonment.
Important Case Law
D.K. Basu v State of West Bengal(1)
Despite various to attempts to issue proper guidelines to eradicate the possibility of committing torture by police officials, there were frequent instances of custodial deaths and police atrocities. The apex court, in this case, issued some guidelines which are to be followed under all cases of arrest or detentions. Important guidelines are as follows:
- The person to be arrested must be informed of the grounds of arrest as per Section 50 of CrPC and Article 22 of the Indian Constitution. It is a fundamental right of an individual to be informed of the grounds of arrest. It is the duty of the officer in charge to inform the person whether the offence is Bailable or Non- Bailable. Bailable offences are the offence in which it is the right of a person to be granted bail whereas in the non-bailable offence it is at the discretion of the court.
- Under section 41 police have the power to arrest a person without a warrant where an immediate arrest is needed and there is no time to approach the magistrate and obtain a warrant. For example where a serious crime has been perpetrated by a dangerous person and there are chances of him being escaped unless immediately arrested. Later due to misuse of powers conferred by police officers accorded to them, this section got amended and put restrictions upon the power of officers such as police officer must act reasonably while deciding whether the arrest is necessary or not. The notice should be made if credible information is received (section 41 a).
- The arrested person has a right to meet an advocate of his choice during interrogation under section 41 D and section 303 of CrPC.
- The person so arrested has a right to inform his family member, relative or friend of his arrest under section 50 of CrPC.
- The arrested person has a right not to be detained for more than 24 hours, without being presented before a magistrate to prevent unlawful and illegal arrests. This right is also the fundamental right of an individual under Article 22 of the Constitution.
- The arrested person has a right to remain silent during police enquiry provided by Article 20(3) of the Indian Constitution so that police cannot extract any self- incriminating information against him.
Up to now, we have discussed the power of arrest and the rights of an arrested person. But by going through the data’s of Law Commission on Law of arrest we will realise that due to the unawareness of people about their rights how this power to secure the peace in the society is being misused. The arrest of a person has a demoralising and diminishing effect on his personality. The person so arrested becomes outrageous, alienated and hostile. So there should be a balance between the security of a state and individual freedom.
- (1997) 1 SCC 416