This article is written by Devansh Sharma, 1st year Student, at Law School, Banaras Hindu University. This article deals with the procedures and provisions related to arrest and provisions to prevent arrest.
Many incidents related to false arrests and harassment of arrested persons can be seen in everyday newspapers. The events or procedures of arrest are highly stressful and can cause panic to the person facing it. The ultimate need of the hour for a person at the time of arrest is released and their ultimate friend is a lawyer. Thus, it is very important for a lawyer to be quick and effective with procedures and provisions to avoid such events of arrest. A client expects his lawyer to be efficient enough to provide quick solutions in urgent situations. Arrest is one such situation. Hence, it becomes necessary to understand the basics of an arrest to help your client.
Let us start by understanding the term “arrest” and provisions related to it.
Arrest is the first step towards custody or detention. It is very often regarded as the start of judicial proceeding. An arrest can be in the form of physical restraint or by words.
The circumstances under which a person can be arrested are:
- Arrest with arrest warrant
- Arrest in connection with suspicion of a certain offense.
- Arrest to prevent any offense.
Types of arrest
There are basically two types of arrests:
- Arrest made in pursuance of a warrant issued by a magistrate.
- Arrest without a warrant but is made in accordance with a provision permitting such an arrest.
Provisions regarding Arrest under CrPC
The Code Of Criminal Procedure does not define arrest. Section 41 to Section 60-A deal with arrest.
In the case of State of Haryana & Ors vs Dinesh Kumar, it was held that arrest is defined neither in CrPC, nor in IPC or any other enactment dealing with criminal offences and the only indication of arrest can be found in Section 46 that defines the mode of arrest.
The court cited the meaning of arrest given in Halsbury’s Laws of England and the Court stated that the word ‘arrest’, in its ordinary sense, means apprehension or restraint on the personal liberty of an individual. An arrest involves the act of taking a person into custody under the authority of any law, which provides the powers to detain a person for a criminal charge or for prevention of a criminal offence.
In the case of Directorate of Enforcement vs Deepak Mahajan, the court noted that custody and arrest are not synonymous terms. Taking a person into judicial custody is followed by an arrest.
Arrest by police
Sub-section (1) of section 41 CrPC, 1973 says that a police officer, without an order from a magistrate, can arrest any person.
In the case of Joginder Kumar vs the State of UP, CrLJ, 1994, the court held that there must be a justifiable reason to arrest and no arrest can be made merely because it is lawful to do so.
Similarly, in the case of State of Rajasthan vs Bhera CriLJ 1997, it was held that the ‘reasonable suspicion’ and ‘creditable information’ must be related to the grounds on which a police officer arrests the person.
Section 42 allows a police officer to arrest a person for non-cognizable offences if he refuses to give his name and residence information.
Arrest by a private person
The incidences of an offender being tied up to a tree or locked up in a room etc. are very common, but are certainly unlawful. However, there are some legal powers given to private individuals regarding arrests. Section 43(1) mandates that any private person can arrest another person who has committed a non-cognizable offence or a non-bailable offence in his presence. He can also arrest any proclaimed offender but without any unnecessary delay, the arrested person should be handed over to a police officer or must be taken to the nearest police station instead of confining or restraining him in a private place.
If the person fails to present the arrested person to the police station and confines him to his own custody then that person would be charged with wrongful confinement under Section 342 of IPC. The private person must state the reason for arresting the other person, for example, if the other person was drunk or trying to assault others.
Arrest by Magistrate
Under Section 44(1), the powers of the magistrate regarding arrest have been mandated. This Section provides for wider power of arrest than a private person as the magistrate can arrest for non-cognizable offences. If a magistrate, whether judicial or executive, within his jurisdiction, find out that an offence has been committed in his presence, then the magistrate is empowered to either arrest the offender himself or order any other person to arrest the offender.
A magistrate can also arrest or give an order to arrest any person at any time, in his presence and within his jurisdiction by issuing a warrant.
Section 45 says that members of armed forces are protected from arrest under certain circumstances.
Method and Procedure of arrest
Section 46 of CrPC describes the mode in which the arrests, with or without a warrant, are to be made.
- The arrest should be in the form of touch or confinement of the body of the person to be arrested.
- An arrest is defined as the restraint on personal liberty, hence the person being arrested must submit to the custody of the arrester, or the arrester, by touch or confinement, may arrest the other person.
- Mere oral declaration of arrest would not amount to arrest unless the person to be arrested submits to the custody or the arrester by touch or confinement arrests the person.
- Submission to the custody can either be expressed by words or by action.
In the case of Bharosa Ramdayal vs Emperor (A.I.R. 1941 Nag. 86), the court held that if a person makes a statement or accepts to the police, about the commission of any offence by himself, then he is said to have submitted to the custody of the police officer.
If the accused proceeds towards the police station on being directed by any police officer then he is said to have submitted to the custody. In such cases, physical contact is not essential.
In the case of Birendra Kumar Rai vs Union of India, CrLJ,1992, it was held that handcuffing of the arrested person is not necessary. An arrest can be completely spoken if the person submits to custody.
Under Section 46(2) if such person forcefully resists the arrest or attempts to evade the arrest, then the police officer or another person may use all means necessary to make the arrest. If the person to be arrested tries to run away or escape the arrest then the police can use physical force to immobilize the accused.
However, Section 46(3) says that the police has no right to use such an amount of force that would result in the death of a person who is not accused of an offence punishable by death or imprisonment for life.
Section 47 gives an authority to police to search a place where a person who is to be arrested has entered. Moreover, Section 48 allows the police officers to move out of their jurisdiction in pursuit of the offender.
But Section 49 restricts the police from using force more than necessary to prevent the arrested person from escape.
Special protection as to females
Due to the rise in violation of the rights of the women, Section 46(4) was inserted into CrPC. This section prohibits the arrest of any women before sunrise or after sunset. In exceptional circumstances, a woman police officer is entitled to arrest after making a written report and obtaining prior permission from First Class Judicial Magistrate.
In the case of State of Maharashtra vs Christian Community Welfare Council of India (2003) 8 SCC 546, the court departed from the long tradition of not arresting women at night in the absence of a female constable. The Supreme Court held that strict adherence to such provision would cause practical difficulties in the investigation procedure of the agencies.
The Court stated that all the requirements must be made for the presence of a female constable but if the presence of female constable is not possible then the investigating officer should state lawful reasons for arrest before arresting the women.
Rights of the arrested person
The arrested person has some rights which are provided to save him from the arbitrary use of power by the police. CrPC under a different provision provides for the following rights:
- Right to know the grounds of arrest under Section 50(1) of CrPC;
- Right to be informed of the provisions for bail under Section 50(2) of CrPC;
- Right to be taken to a magistrate without delay (within 24 hours) under Article 22(2) of the Indian Constitution;
- Right to consult a legal practitioner under Section 303 of CrPC and Article 22(1) of the Indian Constitution;
- Right to free legal aid under Section 304 of CrPC;
- Right to be examined by a medical practitioner;
- Right to be informed about the person’s arrest to their family.
In the case of Shri D.K.Basu, Ashok K.Johri vs State of West Bengal, State of U.P. (AIR 1997 SC 610), the Supreme Court provided for the guidelines of the arrest. The Court stated that the officer while arresting any person must have his name and designation mentioned on his badge and the police officer must also mention the same to the person.
The Court also gave guidelines to make a memo of every arrest. The memo must mention:
- The name of the person to be arrested;
- Name of the person arresting;
- Place where such arrest is made;
- Countersigned by 3 witnesses.
Provisions for White-Collar Crimes
The White Collar crime in India can be broadly covered under the following headings:
- Bank Fraud
- Insider Trading
- Money Laundering
There are several provisions that provide for punishments of white-collar crimes:
- The Companies Act, 1960
- The Income Tax Act, 1961
- Indian Penal Code, 1860
- The Commodities Act, 1955
- The Prevention of Corruption Act, 1988
- The Negotiable Instrument Act, 1881
- The Prevention of Money-laundering Act, 2002
- The Information Technology Act, 2005
- The Imports and Exports (control) Act, 1950
- The Special Court (Trial of offences relation to Transactions in Securities) Act, 1992
- The Central Vigilance Commission Act, 2003
Criminal Procedure Code also deals with provisions of arrest under various sections for such white-collar crimes.
Provisions of Arrest under GST
If the Commissioner of CGST or SGST has reasonable grounds to believe that a person has committed an offence under Section 132 of the CGST Act, he can be arrested upon authorisation from CGST or SGST officer. The arrested person should also be informed about the grounds of his arrest and he should be presented before a magistrate within 24 hours in case of a cognizable offence.
Arrestable Offences under CGST
Section 132 provides for arrestable offences that are:
- A taxable person supplying any goods/services without any invoice or issuing a false invoice;
- Issuing any invoice or bill without supply of goods/services in violation of the provisions of GST;
- Collecting any taxes under GST but not submitting it to the government within 3 months;
- Collecting any taxes under GST in contravention of provisions, and not depositing the same to the government within 3 months will be an offence under GST;
- The person is convicted earlier of an offence under Section 132 i.e., this is his 2nd offence.
Under Section 132 it is essential that a person is arrested only where the tax evasion is more than 100 lakh rupees or where a person has earlier been convicted of an offence under Section 132.
Bails under GST can be granted for non-cognizable or non-bailable offences.
Provisions relating to arrest under customs
The Customs Act under Section 104 provides for powers of arrest. It mandates that if an officer of customs is empowered by general or special order of the Commissioner of Customs in this behalf and if the officer has reason to believe that any person in India or within the Indian custom waters has been guilty of an offence punishable under Section 135, then the officer of customs can arrest that person. The officer shall also inform him of the grounds for such arrest as soon as possible.
Section 104 of the Customs Act also states that every person arrested under sub-section(1) should, without unnecessary delay, be taken to a magistrate.
When an officer of customs arrests any person under sub-section(1) of Section 104, he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police station and is subject to under Section 142 Code of Criminal Procedure, 1898 (5 of 1898).
Nothing that is mentioned under the Section143 Code of Criminal Procedure, 1898 (5 of 1898) shall recognise an offence under the Customs Act as a cognizable offence.
Provisions of bail
The term bail is not defined under CrPC. Bail is the security given by the accused to the court affirming his will to attend the proceedings of the court for his trial. Bail is a method used to ensure the presence of an accused before the court. Only police and courts are capable of granting bail.
Bail: When to be granted and when not
Criminal Procedure Code defines bailable offences as offences described as bailable in the first schedule or which are made bailable by other laws in force.
The gravity of the offence, danger of accused absconding, tampering of evidence, previous conduct, health, age and sex of the accused person form the basis of distinction between bailable and non-bailable offences. Section 436 of CrPC gives the accused a right to demand and be granted bail for bailable offences.
Section 437 CrPC lays down certain basic criteria for exercising the judicial discretion for grant or denial of bail in case of non-bailable offences. Anticipatory bail, under Section 438 CRPC, can be sought in cases where the apprehension of arrest arises.
In case of Free Legal Aid Committee, Jamshedpur vs. State of Bihar, the Supreme Court held that in a Session’s case, the accused need not seek bail from the Court of sessions if the magistrate has granted bail.
An interesting question was answered in case of Haji Mohamed Wasim And Ors v. State of U.P., that questioned the validity of bail granted by police officers. The accused on bail, which was granted by the police preferred to not appear before the court. Hence, the trial court issued a non-bailable warrant. The accused challenged the warrant under Section 482. The court ruled that he has to take fresh bail from the trial court.
Bail by police
The Police Officer has powers to release an accused person on bail from the custody when arrest is made under:
- Arrest without the issuance of a warrant;
- Arrest with the issuance of a warrant.
Sections 42, 43, 56, 59, 71, 81, 169, 170, 436, 437 and Schedule I Column 5 of the Criminal Procedure Code has conferred upon the police the powers to grant bail.
Bail when arrest made without a warrant
Section 42 Cr.P.C. 1973 gives the officer powers to arrest when the offender refuses to give name and address or if the given name and address is considered to be false. If the police officer is aware of those particulars, neither the question of arrest nor of bail arises. The police officer cannot detain the accused after the name and address have been ascertained if the accused is willing to execute the necessary bonds.
In case of arrest by a private person, the arrested person should be, without unnecessary delay, handed over to a police officer, or be brought to the nearest police station. Bail will depend upon the police officer before whom the person has been brought. The arrested person shall at once be released, if there are no sufficient grounds to believe that he has committed any offence. But if such a person comes under the provisions of Section 41, a police officer can re-arrest him and then the determination of the question whether bailable or non-bailable and the desirability of release on bail etc. will arise.
Section 56 says that a police officer who makes an arrest without a warrant must take the arrested offender, before a magistrate or before the officer in charge of a police station. However, according to Section 56, there is an inbuilt provision authorizing a police officer to admit the arrested offender to bail.
Section 169 CrPC refers to the grant of bail not at the start but only on the making of an investigation under Chapter XII of the Code. Till then bail is not authorized under this section.
Section 437(1) grants the power to release a person accused of a non-bailable offence on bail. This power is conferred upon officer-in-charge of the police station.
Bail when arrest is made in pursuance of a warrant
The powers of police to grant bail are controlled by directions prescribed under Section 71 of the Code. Whereas Section 81 empowers the police officer to grant bail when the arrested person has been accused of a bailable offence, even if no direction to such effect has been given in the warrant. But in case of a non-bailable offence, the directions given on the warrant has to be followed strictly.
In the case of Lachmi Narain vs. Emperor, the Court stated that it is entirely the discretion of the Court to issue a warrant and give directions for the release of the arrested person on bail.
Bail for non-bailable offences
Section 437 deals with the provisions of bail in bailable offences. Grant of bail is a rule whereas refusal is an exception under the provisions of this Section. A person has the right to be released on bail for a bailable offence. In cases of bailable offences, there exists the concept of compulsory bail.
Section 437 empowers two authorities to grant bail:
- Court: It includes a High Court and the Court of Session, and
- Officer-in-charge of the police station: Officer, who has arrested a person suspected of a non-bailable offence without a warrant.
Refusal of bail in bailable offences
Section 436 (2) of the Criminal Procedure Code has empowered the Court for denial of bail in cases of bailable offences when the court feels that the accused fails to comply with the conditions of bail bonds.
Under the Code of Criminal Procedure, there is a provision for anticipatory bail under Section 438. This provision allows the accused to seek bail when there is an apprehension of an arrest for commission of a non-bailable offence.
The filing of anticipatory bail is notified to the opposing party to let the opposition contest the bail application in court. Anticipatory bail is an order to release a person on bail, which is passed even before the person is arrested. It can only be given by the Sessions Court and the High Court.
Any person under an apprehension of getting arrested-
- on false or trumped-up charges, or
- due to enmity with someone, or
- fears that a false case is likely to be built up against him,
then the person has the right to move to the Court under Section 438 for grant of anticipatory bail. The court can, if it deems fit, direct that during such arrest, the accused shall be released on bail.
The Court can induce conditions for an anticipatory bail, as it deems fit, including:
- The person must be present for interrogation by the police officer whenever required;
- The person must not, directly or indirectly, induce any person, familiar with the facts of the case, trying to dissuade him from disclosing facts to the Court or to any police officer;
- The person must not leave India without the prior permission of the Court.
- If the person is arrested afterwards but is ready to comply with the conditions of bail, he must be released on bail. If the magistrate taking cognizance of the offence decides that a warrant must be issued against the person, the magistrate must issue a bailable warrant in conformity with the directions of the court granting anticipatory bail.
An accused is free on bail as long as it is not cancelled. The Court can direct that the person who has been released on bail to be arrested again. The Court can also commit him to custody on an application of the prosecution.
Release under Section 482 of CrPC
Section 482 of the Code of Criminal Procedure talks about the inherent powers of the High Court to prevent the abuse of the procedure of the Court. For example, if a false FIR is filed against the client then in pursuance of that an application can be filed in the Court seeking to quash the same. Upon approval of the application by the court, the FIR will be quashed and the client will be released immediately.
Article 226 and Article 32
In cases related to wrongful confinement of the client by the police or any other private person, a writ of Habeas Corpus can be filed in the Court in order to seek the release of the client. Habeas Corpus is a writ petition requiring a person under arrest or detention to be brought before a judge or into Court. This is especially done to secure the person’s release unless lawful grounds are shown for their detention.
Though we have some major provisions of arrest and those related to its prevention, there will be cases when your client is arrested and has been taken to the police station and those situations can be really panicking. But there are certain pieces of advice that a lawyer can provide to his/her client regarding how to handle the situations by the time he/she reaches the police station. Ask your client to stay calm and comfort him with the information that the police officers can not hurt him. Further, advise the client not to get into arguments with the police officers, and ask him not to talk to the police about the matter related to the case until you arrive. Moreover, the client can disclose his basic details like name and address which the police is entitled to know but should not reveal anything else and should seek legal advice or should ask the officer to make a call to inform his family and his lawyer about the arrest. Providing your client with such initial advice will enable him to help himself in the police station and eventually help you to deal more effectively during the arrest proceedings.
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