This article has been written by Kushagra Varma, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.
The primary object of criminal law is to protect society from criminals and lawbreakers. It is required that such offenders are kept away from society for their safety. This purpose is achieved through arrest. The objective of an arrest is to bring a person who is suspected to be involved in a crime before the court and secure the administration of law. This article will seek to cover the relation between arrests and provide along the procedures and provisions regarding them as given under the law.
The literal meaning of the word “Arrest” is to seize someone and take them into custody in response to a criminal charge. When a person is arrested, he is being deprived of his personal liberty in response to the safety of society.
“Warrant” is a document or a legal paper that is issued by a judge or a government official that authorizes the police or another body to make arrests, search premises, or carry our other related acts to secure the ends of justice. There are certain kinds of offences for which arrests can be made without a warrant and somewhere no arrest can be made in the absence of a warrant. Both are discussed below.
The Code of Criminal Procedure, 1973 divides offences into two types:
Defined under Section 2(c) of the code, it includes offences for which a police officer can arrest a person without a warrant. A police officer does not need to obtain permission from the court to arrest a person relating to a cognizable offence.
These offences are generally grave and serious in nature like culpable homicide, murder, kidnapping, rape, etc.
Punishment for these offences is death, life imprisonment or imprisonment for a term of 3 years or more.
Defined under Section 2(l) of the code, these offences on the other hand are, for which a police officer has no right or authority to arrest a person without a warrant. No person can be lawfully arrested without the prior permission of the court for a non-cognizable offence.
These offences are generally petty and not so serious in nature like hurt, assault, cheating, defamation, mischief, etc.
Punishment for these offences is up to a period of 3 years.
Who is allowed to make an Arrest?
- A Police officer is the main authority that can do so and has wide powers,
- A Magistrate if an offence takes place in his presence as given under Section 44 of the Code, and
- A Private person can make an arrest too if a non-bailable and cognizable offence has occurred before him as given under Section 43 of the Code.
How is an Arrest made?
As given under Section 46 of the Code, the police official or the person making an arrest needs to actually touch and confine the body of the arrestee unless there are signs of submission.
If the person to be arrested shows resistance towards his arrest or tries to flee or evade being arrested, all necessary means to secure the arrest can be adopted by the person making the arrest. However, death while making an arrest cannot be caused by a person who is not accused of an offence for which punishment is death or life imprisonment.
When can Arrests be made without a warrant and what are their relevant provisions?
There are certain circumstances under which a person can be arrested without a warrant. This is mentioned under:
Section 41 of the Code wherein it is stated that:
- The person involved in a cognizable offence, or against whom a reasonable complaint/ credible information/ reasonable suspicion exists,
- A person who is in possession of any weapon of housebreaking without any legal excuse,
- Been proclaimed as an offender,
- Is found in possession of the stolen property,
- Who tries to stop a police officer from performing his duty or attempts to escape from lawful custody,
- Who is involved in an offence committed outside India,
- Released convict committing a breach of rule,
- Requisition for arrest been issued.
Section 42 of the Code provides another instance where a person can be arrested without a warrant. Herein, if a person commits an offence in the presence of a police officer and such a person refuses to give his name or address or gives a false name or address on demand, he can be arrested without a warrant.
A person arrested for a non-cognizable offence can also be arrested on the above-mentioned ground.
Section 151 of the code gives a police officer wide powers and enlists cases where a police officer may arrest without a warrant to prevent the commission of a cognizable offence if it appears to the officer that commission of the offence cannot be prevented without the arrest.
This power is totally up to the discretion of the police officer and he can arrest any person “if it appears to him” that such person may be involved in a crime.
Arrests under this procedure are also known as preventive arrests. However, an arrest under this section can only be for a maximum period of twenty-four hours from the time of detention.
Although there are plenty of safeguards mentioned in the Code of Criminal Procedure, 1973 to safeguard the misuse of the power of arrest, the fact remains that such power is being misused and a lot of arrests happen wrongly and unlawfully.
This extraordinary power of arrest is used many times to extort money, properties or even to take out personal vendettas. The larger issue here is the absence of a control mechanism or a body to keep checks on the way arrests are made and the lack of action which is taken against officials making these wrongful arrests.
The Hon’ble Supreme Court has laid down guidelines of arrest in a number of landmark cases over the past few decades. The apex court has imposed several safeguards and regulations to limit the power of arrest and prevent its misuse.
D.K.Basu vs. State of West Bengal, 1997
This is a landmark case wherein the Supreme Court issued guidelines for all cases of arrests and detentions. This case dealt with the grave issue of Custodial deaths and laid down various rights given to a person on arrest which are:
- Right to be informed about the grounds of his arrest,
- Right to an Advocate/Lawyer of his choice,
- Right to inform family or friends about the arrest,
- Right to a medical examination,
- Right to get all necessary documents to be registered by the police,
- Right to be presented before a Magistrate within 24 hours of arrest,
- Right to be silent and not give any self-incriminating information to the police.
State of Maharashtra vs. Christian Community Welfare Council of India, 2003
This judgment specifically dealt with the arrest of females and the procedure regarding it.
The apex court dealt with the issue of arresting a woman and gave orders that no female person should be arrested in absence of a lady constable and at night. However, under exceptional circumstances, a female can be arrested without a lady constable and at night for reasons to be recorded along with the permission of the Judicial Magistrate of First Class be taken.
Joginder Kumar vs. State of Uttar Pradesh and Ors., 1994
The point of law questioned in this case was whether an individual could be arrested on unjustified and unclear grounds.
The Supreme Court held in this case that an arrest cannot be made just because it is lawful for the police to do so. An officer making an arrest must justify his reasons for the arrest and show cause for the same. Apart from heinous crimes, all arrests must be avoided if a notice can issue to the person to appear before the police.
The crime rate in India has been on a rising rate for a long time and shows no signs of slowing down. While the duties carried out by police officials involve a large amount of risk and danger, I believe arresting a person should be done with great caution. The arrest of a person takes away his fundamental right of liberty and to move freely.
An arrest has a demoralizing and a diminishing effect on the life of the person being arrested. A balance should be struck between the security of a state and a person’s freedom when dealing with arrests.
Since arrests have a great impact on a human being’s life, a bridge needs to be created between societal interest and protection of the rights of an accused. The principles of Human Rights enshrined in Part III of our Constitution and various international statutes also need to be taken care of.
Briefly, there are two ways by which this can be done:
- To create more awareness especially amongst the poor and uneducated society about their rights and the procedures of law regarding arrests,
- To make the police officials more accountable for the arrests they make and for them to explain that arrest was sine qua non in their case.
- (1997) 6 SCC 642
- (2003) 8 SCC 546
- (1994) 4 SCC 260
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