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This article is written by Neeraj Salodkar, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.com.

Introduction

‘Arrest’ is the act of apprehending a person and taking him into custody. It is usually done by police in India. The Code of Criminal Procedure governs the arrest of persons by the police, private persons, and magistrates. 

There has to be a balance between individual liberty and the people’s power to arrest persons for committing crimes. In simple words, it is the constant struggle between individual liberty and society. On the one hand, it is vital to arrest people who commit a crime so as to protect other law-abiding citizens of the country and, one the other hand, it is also important that excess power is not granted to the authorities to arrest and apprehend with the slightest excuse. Therefore, maintaining a balance between the two is important. The Code of Criminal Procedure tries to do the same. 

Arrest by the police without a warrant (Section 41: CrPC)

Section 41 of the Code of Criminal Procedure (the Code from hereinafter) contains the law for arrest by the police without a warrant. A long list has been provided. Following are some of the items from the list: 

  1. When a person commits a cognizable offense in the presence of a police officer

The cognizable offense is defined in section 2(c) of the Code. When a particular offense is designated as such in Schedule I of the Code as a cognizable offense, it is called a cognizable offense. Cognizable offenses are usually offenses that are serious in nature. 

2. When a reasonable complaint is made against a person or credible information has been received, or a reasonable suspicion exists that such person has committed a cognizable offense punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine if the following conditions are satisfied: 

  • the police officer has reason to believe based on such complaint, information, or suspicion that such person has committed the said offense;
  • the police officer who is arresting is satisfied that the following conditions have been fulfilled-
  1. To prevent such person from committing any additional crime; or
  2. For proper facilitation of the investigation of the crime; or
  3. To stop such person from causing the proof of the crime to disappear or tampering with such evidence in any manner; or
  4. To restrain such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to stop him from disclosing such facts to the Court or to the police officer; or as unless such person is arrested, his presence in the Court whenever required cannot be ensured;

And the police officer shall record while making such arrest, his reasons in writing, and when the police officer does not make an arrest, he shall also write the reasons for not making the arrest. 

  1. Against whom credible information has been received that he has committed a cognizable offense punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with a death sentence, and the police officer has reason to believe based on that information that such person has committed the said offense.
  2. The person so being arrested is a proclaimed offender by the Central or the State Government.
  3. When the person being so arrested is in possession of the stolen property and who may reasonably be suspected of having committed an offense with reference to such thing. 
  4. When the person being so arrested obstructs a police officer while in the execution of his duty.
  5. When the person being so arrested has escaped or attempted to escape from lawful custody.
  6. When the person being arrested is reasonably suspected of being a deserter from any of the Armed Forces of the Union.
  7. Who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offense, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India.
  8. When the person being arrested is a released convict, commits a breach of any rule under subsection (5) of section 356. 
  9. A requisition is made or received from any other police officer. The requisition must specify the person to be arrested with the crime that was committeed by him. The requisition may be in writing or be oral. 

For all the above situations, the police have the power to make arrests. In all the other cases, a warrant is required from the magistrate before making an arrest. The section is not exhaustive. There are various other Acts like Arms Act, Explosives Act, etc, which confer such powers on police officers. 

The power to arrest is also given to public servants under other statutes. The Custom Officers, Officers of Enforcement Directorate, Narcotic Officers, etc also have the right to arrest persons under different statutes. 

As it can be observed from the above provision, the words, ‘reasonable suspicion’ and ‘credible information’ have been used several times. These words have been inserted to keep a check on the powers of the police. The police cannot arrest on a whim or to exact revenge against the arrestee. The information so received must be solid. The suspicion on which the arrest is made must also be based upon solid grounds and not mere fiction.

Important decisions

Section 41 is subject to other provisions as well. In the State of Maharashtra v. Christian Community Welfare Council of India [AIR 2004 SC 7], guidelines were laid down for the arrest of female persons. It was said that the arresting authority should make all possible efforts to assure the presence of a woman constable. But if such presence cannot be assured and delay to the investigation cannot be afforded, the arresting officer can himself affect the arrest for lawful reasons at any time of the day or night, even in the absence of a woman constable. Reasons for doing so must be recorded. 

The police officers have to follow certain procedures whilst arresting a person. Following procedures need to be followed: 

  1. Every police officer, who is making an arrest, shall mandatorily have a precise, perceptible, and unambiguous recognition of his name, which will assist in easy identification of the police officer. The reason for the same is that there must be a clear identification of the arresting police officer and to curb personation of police officers. 
  2. A memorandum of arrest shall be prepared by every police officer making an arrest. The memorandum shall be signed by at least one member of the family of the person who has been arrested. If no family member is available, then it must be signed by at least one respectable member fo the locality where the arrest has been made. 
  3. The memorandum so prepared must be signed by the person so arrested.
  4. It the duty of the police officer making the arrest to inform the person so arrested that he has the right to inform of the arrest to his family members or family. But if the memorandum above mentioned is signed by a member of the family, then the police officer is not obligated to inform the person so arrested of the said right. 
  5. The police officer making the arrest needs only to actually physically touch or confine the body of the person so arrested, unless there is voluntary submission to custody by the person being arrested by word or action. In simple words, if the person being arrested voluntarily submits to custody, then there is no need to physically touch or confine the person.
  6. A male officer is not to touch a female arrestee. 
  7. If the person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, then then arresting police officer or any other person may use all means necessary to make the arrest.
  8. When it is intended to arrest a woman after sunset and before sunrise, the woman police officer must mandatorily obtain the previous permission in writing of the Judicial Magistrate of the first class within whose jurisdiction the crime is committed or arrest is to be made. This provision has been inserted by the Code of Criminal (Amendment) Act, 2005. 
  9. The person so arrested has to be taken to the nearest magistrate within 24 hours of the arrest. This time excludes the time to travel. 

Conclusion

The Code of Criminal Procedure tries to balance between the liberty of individuals and the powers of the police and relatively succeeds in doing so. In India, whenever a crime transpires, the laws are blamed. It is stated that the laws are not strict enough. According to me, lack of laws or lack of stringency of laws in never the problem. The issue is with the implementation of the law. The main issue is the proper training of the police officers. India has ample laws, and the laws are good as well. The laws in place only need to be implemented properly. 


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