This article is written by Shruti Singh, 2nd year Law intern from Hidayatullah National Law University pursuing B.A.LLB (Hons.) course. This article explains the various procedures, rules and rights of an accused in case of arrest.
An Arrest is an act of taking a person into custody as he/she may be suspected of a crime or an offence. It is done because a person is apprehended for doing something wrong. After arresting a person further procedures like interrogation and investigation is done. It is part of the Criminal Justice System. In an action of arrest, the person is physically detained by the concerned authority.
If we look at the dictionary meaning of the word ‘arrest’ it means to seize or to capture, to bring to a stop or to make it inactive. From all the meanings it can be deduced that arrest means to bring a stop to a person’s activity. A person can be arrested by police or Magistrate. But can an individual arrest another individual? If yes, then when can he be arrested and for what reason? Does an arrested person has fundamental rights? How can he get it enforced? All these basic questions regarding Arrest have been answered in this Article.
Significance of the topic
The Arrest is one of the most important subjects of the Criminal Justice System. Why is it important to study this topic? It is so because an arrest is used as a tool for a person who is accused of a wrong. It tries to prevent wrong that is happening in society. It is used to create a sense of fear among the people that if any wrong is committed, a person’s movement will be restricted to four walls with very basic amenities. A person values his freedom the most and action of arrest takes this freedom from a person.
The great political philosopher Bolingbroke once said,
“Liberty is to the collective body, what health is to every individual body. Without health no pleasure can be tasted by man; without Liberty, no happiness can be enjoyed by society.” These points make it important for us to give full attention to this topic. As in either way it is a part of our everyday life.
Types of arrest
The term Arrest has been defined neither in the CrPC (The Code of Criminal Procedure,1973) nor IPC (Indian Penal Code,1860). The definition has not been provided even in any enactments dealing with Criminal Offences. The only indication of what does an arrest constitute can be made out of Section 46 of CrPC which deals with ‘How an arrest is made’.
If 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.
Another type of arrest is Private Arrest in which a person is arrested by another person. But it is allowed only in case a person commits a non-bailable offence in another person’s presence or is apprehended of committing a crime against a person or his property and when he is not given the correct address of his residence or it is unknown. But before arresting a person there should be sufficient apprehension and justifiable cause to arrest that particular person.
Arrest by warrant
If a person commits an offence which is non-arrestable then a warrant is necessary to be issued. The police cannot make such kind of arrest without a warrant. The warrant is issued by a Judge or a Magistrate on behalf of the state. An arrest warrant authorizes the arrest or detention of the person or capture or seizure of an individual’s property. Section 41(1) of CrPC,1973 explains when can a person be arrested without any warrant. Section 41(2) of CrPC, 1973 states that subject to the condition in Section 42, a person cannot be arrested without a warrant and an order of the magistrate in case of non-cognizable offence and where a complaint is made. The procedures to be followed while arresting a person find its mention in Section 46 of the Code. But this Code is not fully sufficient to provide all the procedures, for this the guidelines given in different cases are followed.
Arrest without warrant
An arrest without a warrant means when a police officer is entitled to arrest a person without any warrant. It can happen only in cases where a person is a suspect of an arrestable offence. There are several grounds provided in Section 41(1) of CrPC under which an arrest can be made without a warrant. It is usually done in case of a cognizable offence, when a reasonable complaint is made or when a piece of credible information has been received.
In the United States, an arrest without a warrant still requires a probable cause, which must be promptly filed.
Arrest on refusal to give name and residence
Section 42 of CrPC states the course of action in case of arrest on refusal to give name and residence.
Section 42(1) says that when a person has committed a non-cognizable offence refuses to give his name or address or gives a false name and address on the demand of the officer, he may be arrested by such officer to ascertain his correct name or residence.
Section 42(2) says that the person so arrested may be released after ascertaining the true name or residence but only after executing a bond, with or without sureties, to appear before the magistrate if required. But if the person is not a resident of India then the bond should be secured by a security or securities resident of India.
Section 42(3) says that if true name or address of the person is not found within twenty-four hours or if he fails to execute the bond or required sureties then he has to be presented before the magistrate falling within the jurisdiction.
Procedure of arrest by a private person
The procedure of arrest by a private person is expressly provided in Section 43 of the Criminal Procedural Code.
Section 43(1) states that a private person can arrest another person who commits a non-bailable offence or any proclaimed offender and without wasting any unnecessary time can be taken to a police officer and in the absence of the officer the accused has to be taken to the nearest police station.
Section 43(2) says that if the arrest of that person comes under Section 41, the police officer shall re-arrest him.
Section 43(3) provides that if there is sufficient reason to believe that he has committed a bailable offence and refuses to give his true name or address to the police officer, he shall be dealt with according to the provisions of Section 42. But he shall be released if there is no sufficient reason to believe that he has committed an offence.
Arrest by magistrate
Magistrate here includes both an executive or judicial Magistrate. According to Section 44(1) of CrPC when an offence is committed in the presence of a magistrate within his local jurisdiction, he has the power to arrest that person himself or order any person for arrest and subject to the conditions relating to bail, commit the accused to custody.
Section 44(2) in addition to clause 1 also provides that the Magistrate can also arrest or direct to any person in his presence, within his local jurisdiction of whom who he is competent to arrest at that time and in the circumstances to arrest.
An exception of the Armed forces
The members of the Armed Forces are protected from arrest as provided in Section 45 of CrPC.
Section 45(1) states that no member of the armed forces can be arrested for anything done while discharging the official duties except with the consent of the Central Government. It is subject to the conditions mentioned in Section 41-44 of the Code.
Section 45(2) lays out that the State Government may through a notification can direct that the sub-section (1) shall apply to any class or category of members of Armed forces who are charged with the maintenance of public order as may be specified thereupon, whenever they are serving. In other words, the State government just like the Central Government is empowered to use the power mentioned in sub-section (1).
Procedure of arrest
There is no complete code which provides the procedure as a whole. Still, Section 46 explains how arrest is made.
It is the only place that gives the meaning of arrest. Section 46(1) provides that in an action of arrest the police officer or the person making the arrest shall actually touch or confine the body of the person arrested. In the case of women, her submission to the custody of an oral intimation of arrest shall be presumed and unless the police officer is female, she shall not be touched by the police officer at the time of time. But in exceptional situations, contrary to what is mentioned can be done.
According to Section 46(2), the police are authorised to use reasonable amount or means of force to effect the arrest in cases where the person being arrested forcibly resists or attempts to evade arrest.
Recently what we saw in the Hyderabad Rape case(2019) can be a good example. The police officer using the power under this provision used an amount of force to prevent the accused from escaping. Whether the amount of force applied was reasonable or not is a question which will be inquired by the court.
Section 46(3) does not give the right to cause the death of the person who is not accused of an offence. The punishment in such cases is death or imprisonment for life.
Section 46(4) says that except in certain conditions a woman cannot be arrested after sunset and before sunrise and where such exceptional conditions exist, the woman police officer by making a written report can obtain the prior permission of the Judicial Magistrate with the local jurisdiction to make an arrest.
Additional powers for effecting arrest search of place
Section 47 of CrPC provides for the search of place entered by place sought to be entered. It further provides that the person having the warrant has the duty to enter the premises of the person being arrested. If the person is not able to easily ingress the premises or is not allowed to enter, then they have the authority to break open the door. It is done to take the person by surprise.
But if there is any female occupying the premises then the person arrested has to give notice to that female to withdraw and shall afford every reasonable facility for withdrawing and they may break the apartment.
Any police officer or person making the arrest is authorised to break open the door in order to liberate himself if he is detained in that process.
Pursuit of offenders
Pursuit is the action of pursuing someone or something. In this case, it basically talks about the offenders. Section 48 authorizes the police officers to pursue offenders in any place in India whom he is authorised to do so without a warrant.
Deputing subordinate to arrest
When any police officer who is in charge of a police station or any police officer making an investigation under Chapter XII requires any subordinate to him arrest without warrant any person who is lawfully arrested has to give in writing the reason specifying for which he is arrested. The subordinate before making such arrest is required to notify the person being arrested the substance of the order and if requires show him the order. This is given in Section 55 of CrPC.
Power, on escape, to pursue and retake
Section 60 of CrPC– If there is a person who is in the lawful custody of the police tries to escape or is rescued, may be immediately pursued and arrested in any place in India.
Post arrest procedures
Firstly, according to Section 50(1) of CrPC, it is the duty of the police officer or any person arrested without warrant to inform the person arrested about the grounds of the offence for the arrest.
Secondly, in the case where the arrest is made under a warrant, the police officer under Section 75 CrPC is required to inform the person arrested about the substance of arrest and if required to show the order. If it is not done the arrest will become unlawful.
The Indian Constitution also supports this and had emphasised upon it in Article 22(1), a fundamental right. It prescribes certain rights that are present with the accused at the time of arrest(fundamental in nature). It says that no person who is arrested shall be detained in custody without being informed about the reason for arrest and consult a legal practitioner of his choice. In re Madhu Limaye case, the petitioner was not informed about the grounds of his arrest along with his companions. He challenged this under Article 32 as it was in violation of his fundamental right before the Supreme Court. The Supreme Court observed that there was a violation of an essential and vital right of the petitioner.
Thirdly, when an arrest is made without a warrant by a police officer, it is his duty to show before the magistrate without unnecessary delay(usually within 24 hours). It is also mentioned that the person arrested cannot be taken to any place other than the police station before presenting before the magistrate. This is provided in Article 22 with Section 56 and Section 76 of the CrPC.
Apart from this, the police officer always has to bear the clear, visible and proper identification of his name which may facilitate his easy identification. As soon as the arrest is made a memo should be prepared which is to be attested by at least one witness and countersigned by the person arrested.
The arrested person also has the right to consult an advocate of his choice during interrogation under section 41D and Section 303 of CrPC. Apart from these, there are many other rights and procedures mentioned in the further part of the article.
Search of an arrested person
Section 51(1) provides that the person arrested can be searched for articles on the body and the receipt of all those articles is to be provided to that person.
Section 51(1) says that in case of a search of female, it will happen only by a female maintaining some amount of decency.
Seizure of offensive weapons
The officer or the person arresting has the power to seize any offensive weapon which he possesses and deposit all weapons to the court or the officer before whom the person making the arrest is required by the Code to produce the person arrested(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.
State of Bombay V. Kathi Kalu Oghad
In the case of State of Bombay vs. Kathi kalu Oghad, 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 charge of committing an offence and his identification by any other person is deemed necessary then the court for the purpose of investigation, having jurisdiction, can direct the person so arrested to subject himself to identification in front of any person or persons as the court may think fit. When the person identifying the arrested person is mentally or physically disabled, in that case, the process of identification will happen before a Judicial Magistrate who will ensure that he identifies with the help of a medium he considered it comfortable. And this identification needs to be recorded in a form of video.
Procedure when delegated person arrest without warrant
When a delegated person arrests the accused without warrant, any person thus arrested lawfully be delivered to the officer in writing the reason specifying the arrest. The officer needs to notify the person arrested the, substance of the arrest and if required to show the order of substance to the person arrested.
Report of arrests to be sent to DM and the procedure
Section 58 states that officers who are incharge of police stations shall report to the District Magistrate or if he directs to the sub-divisional magistrate, the cases of all persons arrested without a warrant within their local jurisdiction and whether they have been admitted to bail or otherwise.
Rights of an arrested person
The Constitution of India has laid down some basic rights for the accused at the time of the arrest. It is part of the Magna Carta (Part-III) of the Constitution. This makes it very crucial in nature. As in case these rights are not enforced, they can be challenged through a writ petition under Article 32 and 226 of the Constitution. It means that these rights in any way cannot be omitted from enforcing as they are fundamental. In addition to the constitution, it is also mentioned in the Code of Criminal Procedure,1973. Rights like Right to be informed, right to be presented before a magistrate within 24 hours, right to consult a legal practitioner of choice finds a place in Article 22 as well in CrPC.
Right to be informed of the grounds of arrest
Article 22 of the Constitution expressly provides Protection to an accused against arrest and detention
Article 22(1) says that no person who has been arrested shall be detained in custody without being informed of the grounds of arrest and nor shall be denied the right to be consulted and defended by a lawyer of choice.
Section 50(1) CrPC also mentions that every police officer or any other person arrested without a warrant has the duty to inform all the particulars of the offence to the accused forthwith (immediately). The time duration between which it is essential to inform the accused should be reasonable. If the police officer or the person arresting skips this right then the accused can move to the court under Article 32. The petitioner would be entitled to a writ of Habeas Corpus which can result in their release.
The rules originating from the decisions such as Joginder Singh v. State of U.P. and D.K. Basu v. State of West Bengal have been enacted in Section 50-A making it obligatory on the part of the police officer not only to inform the friend or relative of the arrested person about his arrest etc. but also to make an entry in a register maintained by the police in the police station. The magistrate who is observing such arrest is also under an obligation to satisfy himself about the compliance of the police of all the procedures in this regard.
Right to be released on bail
Section 50(2) CrPC provides that “where a police officer arrests any person other than a person accused of a non-bailable offence without warrant, he has the duty to inform the arrested person that he is entitled to be released on bail and he may arrange for sureties on his behalf.” This will certainly be of help to people who may not know about their rights to be released on bail in case of bailable offences. As a result, this provision may to an extent, improve the relationship of the people with the police and reduce the discontentment against them.
Right to be produced before a magistrate
Article 22(2) of the Constitution provides that every person who is arrested should be presented before the nearest Magistrate within 24 hours of such arrest, excluding the time of journey from the place of arrest to the place of magistrate. No person will be detained in custody of the police beyond the said period without the authority of the magistrate.
Protection against arrest and detention
Article 22 outlines several rights available to an accused in case of arrest and detention. Article 22(1) talks about the duty to inform the accused of the grounds of arrest and to consult a lawyer of choice. Article 22(2) makes it mandatory for the police officer to present the person arrested before a magistrate within twenty-four hours and cannot be detained beyond the said period.
Article 22(4) says that no person can be detained beyond the period of three months except on the recommendation of the Advisory Board. The person detained should be communicated the reason for detention as soon as possible and give him the earliest opportunity to make a representation against the order.
This case defines Arrest as “ Arrest is a physical restraint which is put on a person as a result of accusations of the crime or offence he has committed”.
The order of detention was not in accordance with the Defence of India Act,1962 and Rules and must be set aside, as he was not then the District Magistrate, but only an Additional District Magistrate.
Right to consult a legal practitioner
Article 22(1) and Section 41D CrPC gives the accused the right to be consulted and defended by a legal practitioner of choice. He is entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation.
Right to free legal aid
Free legal aid means providing free legal services to the people who are economically not strong to conduct a case or any legal proceedings in a court of law or before any judicial tribunal and judicial authority. Article 39A (Directive Principles of State Policy) provides that it is the duty of the state to provide justice on easily accessible terms so that every citizen can easily approach the courts to enforce their rights. It ensures to provide justice based on equal opportunity through free legal aid or legislation favouring people who cannot access justice because of economic conditions or any other difficulty. For this, institutions like Legal Service Authorities are established at National, state and district levels.
Hussainara Khatoon v. State of Bihar
In the case of Hussainara Khatoon vs. State of Bihar, a Public Interest Litigation(PIL) was filed in the name of Hussainara Khatoon, a prisoner in a jail in the Supreme Court. The Court held that if an accused is not able to afford the legal services he has the right to free legal aid at the cost of the state. It is one of the duties of the state to provide a legal system which promotes justice on the basis of equal opportunity for all citizens who are denied access to justice because of economic conditions or other disabilities. Therefore they must arrange for free legal services for the individuals.
Right to be examined by a medical practitioner
Section 54(1) CrPC gives a right to the accused to proceed with a medical examination of his full body in case this examination will afford evidence which can disprove the commission of an offence or crime on him or prove the commission by any other person at the time when he is presented before the magistrate or at any time during the detention. It can happen with the permission of the magistrate but if he thinks it is done just to cause a delay, he has the power to cancel it.
Joginder Kumar v. State of UP
A petition was filed under Article 32 by a young lawyer. The Supreme Court held that it is the right of an accused to be informed of the grounds of his offence, informed someone of his arrest and to consult a lawyer are inherent in Article 21 and Article 22 of the Constitution. It was also held that a police officer cannot arrest just because he has the power to do so. It should exhibit a clear justification for every arrest. Since there is some amount of harm caused to the reputation of a person when he is put behind bars. Therefore every arrest should happen after reasonable satisfaction and the minimum level of investigation as to the genuineness and bona fides of a complaint. Apart from these certain guidelines, were also provided that needed to be necessarily followed at the time of the arrest. This case law is taken into consideration for looking for rules apart from those mentioned in CrPC.
Consequences of non-compliance with the provisions relating to arrest
The non-compliance of the provisions which are mentioned in CrPC and other enactments will not make the trial void. It would not affect the liability of the accused. But it will be a material fact if the accused resisted or escapes from the legal custody. But a person has a right to defend himself in case of unlawful arrest or detention. He can enforce his rights through Section 96 to Section 106 of IPC. the person who is liable for unlawful arrest and can be made guilty for wrongful confinement and claim damages through a civil suit.
Rights are available to every citizen of the country. Even a person who is accused of an offence possesses various rights some of which are fundamental in nature. The accused can in case of non-compliance of these provisions approach the court where remedy is available. On the other hand, the police authorities are required to follow the procedure given in Chapter V of the Code of Criminal Procedure(CrPC).
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