This article is written by Adv Arijit Kundu, pursuing a Certificate Course in Advanced Criminal Litigation and Trial Advocacy from Lawsikho.
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Before understanding the consequences of resisting arrest, it is important to understand what arrest actually means. The definition of arrest is to “seize (someone) by legal authority and take them into custody.” It basically means to hinder the free movement of an individual. Although arrest is nowhere defined in the statute books, arrest usually means the lawful exercise of the power to take somebody into custody. Since arrest of a person is a serious curtailment of the rights of liberty and free movement granted to a person by the Constitution of India under articles 19(d) and 21, there are various rules that have been formulated to regulate it. Although it is legally binding on a person to cooperate to the arresting authority, the first reaction of an individual might be to resist it. In this article we will deal with various issues relating to consequences of resisting arrest, in particular, the charges, penalties, for resisting arrest and also the powers and limitations provided to the police in regard to resistance of arrest by the arrestee.
What does it mean to resist arrest?
Resistance of arrest is to be understood by us in the context of section 46(2) of the Code of Criminal Procedure, 1973. It says that “If such a 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”. The plain reading of it is self explanatory and resistance of arrest is nothing but the use of physical force to prevent him from getting arrested or the attempt to evade the arrest by any other means like fleeing from the scene.
A person is arrested in many situations, inter -alia when he does not disclose his name or address by the police officers or if he commits or is accused of committing any cognizable offense or if a warrant is issued against him by a competent court. If a person tries to resist his arrest, he would be liable to face additional charges in addition to the charges that he would have been liable to face if he had not resisted the arrest or lawful apprehension
What are the consequences of resisting arrest?
The penalties applicable to a person on resisting arrest would differ according to the circumstances.. The person concerned may face charges under section 224 if he resists his own apprehension or under section 225 if he tries to resist the apprehension of any person other than himself. If he resists his own apprehension, he would be liable to punishment which may extend upto two years and with fine or both.
If he tries to create resistance or cause obstruction of the apprehension of a person other than himself, he can be punished with imprisonment which can range from two years upto life imprisonment which depends on the duration of punishment for which the person who is being apprehended by the authorities is charged with and he would also be liable to fine if directed by the court so to pay. The punishment in the above two cases is mentioned in sections 224 and 225 of the Indian Penal Code. In addition to this section 225B provides punishment for upto six months or with fine or both in any other situations of resisting arrest apart from sections 224 and 225 of the IPC or any other laws that might be applicable. In addition to this, the persons using criminal force may be charged and punished under section 353 of the Indian Penal Code, 1860 and punished with imprisonment upto two years or with fine or with both.
Ambit of authority in the hands of the officials for persons resisting arrest
Section 46(2) of the Code of Criminal Procedure, 1973 deals with the powers available with a police officer to be applied in case a person resists arrest says 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”. So in this case the police has been given ample powers to use all such force and means that is necessary to effect the arrest of the concerned person. Section 46(3) says 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.” So, only in case the accused is charged with an offense punishable with death or imprisonment for life, the police have the lawful authority even to cause the death of the person, if it requires, in order to effect the detention or arrest of the concerned accused.
Observation of Indian Courts
In Nazir vs Rex AIR 1951 All 3, it was decided by the Allahabad High Court that the police may even take the help of others in order to effect the arrest of the concerned person. Thus, where the situation is such that the arrest of a person cannot be affected by the police alone and public help is required to affect the arrest, the police are free to take assistance from the public and the concerned persons are thereby bound to assist the police making the arrest.
In Ramnish&Anr. vs Cbi&Ors. 2016 Delhi High Court held that “It cannot be disputed that as per Section 46 (2) Cr P C, if any person, who is to be arrested, forcibly resists the endeavour to arrest him or attempts to evade the arrest, the arresting officer may use all means necessary to effect the arrest. But, it is also settled law that the arrest and force used therein should not be intentional and malafide.”
Limitations of the powers of police to effect arrest
The very first issue that we need to keep in mind is that in order to term a detention as an arrest, it has to be lawful. In all the relevant sections mentioned above regarding punishment for resisting the apprehension or obstruction of the apprehension of another, the legislature has carefully and intentionally used the word “Lawful apprehension”. This very term makes it clear that a person who is resisting apprehension by the police authorities can be charged or punished only and only when the apprehension that has been initiated by the police is itself legal. In other words, a person facing the danger of curtailment of his liberty at the hands of a private person or the police authorities with a mala fide intent or illegal intent has full rights to evade or resist his apprehension. But in all practical sense, it is definitely not open for a person to automatically challenge the authority making the arrest or the legality based upon which the arrest is being made.
Rights of an arrestee
There are many rights that are available to a person who is arrested. For example, a person being arrested has got to know the case in regard to which he is being arrested. Also the directives of the D.K Basu Vs. State of West Bengal (Supreme Court 1996) need to be strictly complied with. In addition to this, the arrest to be made must be a legal one. If the arrest or detention is itself not legal or is perverse or mala fide, the arrestee has rights as per section 96 to 106 of the Indian Penal Code, namely the rights of private defence. It has been decided in various cases that where the detention of the police was itself illegal and there had been firing from the side of the police, the accused has also got the right to private defence available to him.
Consequences of resisting arrests in other jurisdictions
In the USA it is illegal and it is a punishable offense to prevent a police official from performing an arrest. The police are authorized to use reasonable force while effecting arrest like pinning one down or using handcuffs but the arrestee is also given the right to know the grounds of his arrest.
However, in the UK and the Wales, it is not illegal to prevent a person from performing an arrest and one doing so would not be liable to face any additional charges unless he becomes violent towards the person making such arrest.
Arrest during the Covid-19 pandemic
Arresting a person has become a challenging task during the prevailing pandemic situation and both the arrestor and the arrestee is at a risk of getting infected and therefore, unless the arrestee does not submit before the police, there should be the least contact between the arrestor and the arrestee. To tackle this situation particular guidelines were issued by state governments and particularly in West Bengal, during the initial stages of the pandemic, the government were planning to direct the police to not arrest an individual regarding old cases unless accused of heinous offenses, granting of parole was also thought to be expedited. However, the state of West Bengal itself saw an arrest of over 4,000 for violation of lockdown norms during the pandemic. Arrest during this pandemic is therefore a challenging task altogether for the administration.
The arrest of an individual is the curtailment of his fundamental right to liberty and free movement. Therefore, the power of arrest, although is given to the police along with wide powers, should be consciously used by the police. Gradually, jurists are advocating for the arrest of a person only in exceptional circumstances. The introduction of section 41A of the C.R.P.C is perhaps a step towards that direction. The apex court also laid down several guidelines regarding arrests in cases punishable with imprisonment upto 7 years in the case of Arnesh Kumar vs State of Bihar, (2014 S.C).
Nevertheless, when an individual is faced with the situation of arrest, other than availing the statutory rights granted to him at the time of arrest, should not in any manner try to resist the arrest or cause obstruction in any manner whatsoever as various charges in addition to those that have been originally had been made applicable to him would apply to him had he not resisted the arrest. It is also imperative that the arrest made is itself done in pursuance of legal principles and not be in contrast to any legal provisions. It is best for any person facing arrest to cooperate with the police in the event of arrest and in case of any illegality in the arrest so made, should be addressed to a competent court having jurisdiction in the matter for appropriate directions. An arrest should not be made in a routine manner but when a person is arrested, it is the duty of the individual to cooperate with the investigative agencies in the interest of the investigation and seek bail.
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