Arrest of Persons in India

The term “Arrest” is the act of depriving people of their liberty, usually in relation to an investigation or prevention of a crime, and thus detaining the arrested person in a procedure as part of the criminal justice system. After arrest, a person’s liberty is in control of the arrester. In criminal law, arrest plays a vital role in bringing an accused before the court and to prevent him from absconding. The purpose of an arrest is to bring the arrestee before a court or otherwise to secure the administration of the law. An arrest also serves the function of notifying the community that an individual has been accused of a crime and also may admonish and deter the arrested individual from committing other crimes. Arrests can be made in both criminal and civil cases, although in civil matters, arrest is a drastic measure which is not looked upon with favour by the courts.

In Indian law, Criminal Procedural Code 1973 (hereinafter referred to as Cr.P.C), chapter V (Section 41 to 60) talks about Arrest of a person but it do not define arrest anywhere. Arrest can be made by police officer, Magistrate or any private person, like you or me can also arrest a person but that can made only in accordance with the legal provisions mentioned in CrPC. CrPC exempts the members of Armed forces from being arrested for anything done by them in discharge of their official duties except after obtaining the consent of the government (section 45 CrPC)

According to section 43 of CrPC, Any private individual may arrest a person without warrant only when the person is a proclaimed offender under section 82 CrPC and the person commits a non-bailable offence and cognizable offences in his presence; with warrant u/s 72 and 73, under order of a Police officer u/s 37 and under order of a magistrate u/s 37 and 44 Cr. P.C. and also 60 (1) CrPC.

According to section 44 of CrPC, Any Magistrate, whether Executive or Judicial, may arrest a person when any offence is committed in his presence then he may himself arrest or order any person to arrest the offender and thereafter, subject to the provisions herein contained as to bail, may commit the offender to custody.

A military officer may arrest under section 130 and 131 CrPC.

Arrest by Police Officer

A police officer may arrest without a warrant under Sections 41 (1) to 151 CrPC; under a warrant under Sections 72 to 74 CrPC; under the written order of an officer in charge under Sections 55 and 157; under the orders of magistrate under Section 44 and in non cognizable offence under Section 42 CrPC. A superior officer may arrest under Section 36 CrPC. An Officer-in-Charge of a Police Station may arrest under Section 42 (2) and 157 CrPC.

Under Sections 41, 42, 151 CrPC, a Police officer may arrest without warrant in the following conditions:

1. Who has been concerned in any cognizable offence or
2. Who has in possession, without, lawful excuse, of any house breaking weapon or
3. Who has been proclaimed as an offender either under CrPC or by order of the State Govt. or
4. Who is in possession of any stolen property or
5. Who obstructs a police officer while in the execution of his duty or who has escaped, or attempts to escape, from lawful custody or
6. Who is reasonably suspected of being a deserter from any of the Armed forces of the Union or
7. Who has been concerned in any law relating to extradition or
8. Who, being a released convict commits a breach of any rule made under sub-section (5) of Section 356 CrPC or
9. For whose arrest any requisition has been received from another police officer specifying the person to be arrested and the offence and other cause for which the arrest is to be made.

As held in the case of Swami Hariharanand Saraswati vs Jailer I/C Dist. Varanasi, 1954, the arrested person must be produced before another magistrate within 24 hours, otherwise his detention will be illegal.

In the case of Joginder Kumar vs State of UP, 1994, it was held that no arrest can be made merely because it is lawful to do so. There must be a justifiable reason to arrest.

Further, in State vs Bhera, 1997, it was held that the “reasonable suspicion” and “creditable information” must relate to definite averments which must be considered by the Police Officer himself before he arrests the person.

Procedure of Arrest

Section 46 CrPC describes the way in which an arrest is actually made. As per Section 46(1), unless the person being arrested consents to the submission to custody by words or actions, the arrester shall actually touch or confine the body of the person to be arrested. Since arrest is a restraint on the liberty of the person, it is necessary for the person being arrested to either submit to custody or the arrester must touch and confine his body. Mere oral declaration of arrest by the arrester without getting submission to custody or physical touching to confine the body will not amount to arrest. The submission to custody may be by express words or by action.

It was held in the case of Bharosa Ramdayal vs Emperor, 1941, if a person makes a statement to the police accusing himself of committing an offence, he would be considered to have submitted to the custody of the police officer. Similarly, if the accused proceeds towards the police station as directed by the police officer, he has submitted to the custody. In such cases, physical contact is not required.

In case of Birendra Kumar Rai vs Union of India, 1992, it was held that arrest need not be by handcuffing the person, and it can also be complete by spoken words if the person submits to custody.

Section 46(2) provides that if any person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. Thus, if the person tries to runaway, the police officer can take actions to prevent his escape and in doing so, he can use physical force to immobilize the accused. However, as per Section 46(3),

there is no right to cause the death of the person who is not accused of an offence punishable with death or with imprisonment for life, while arresting that person. Further, as per Section 49, an arrested person must not be subjected to more restraint than is necessary to prevent him from escaping.

Due to concerns of violation of the rights of women, a new provision was inserted in Section 46(4) that forbids the arrest of women after sunset and before sunrise, except in exceptional circumstances, in which case the arrest can be done by a woman police officer after making a written report and obtaining a prior permission from the concerned Judicial Magistrate of First class.

In Kultej Singh vs Circle Inspector of Police, 1992, it was held that keeping a person in the police station or confining the movement of the person in the precincts of the police station amounts to arrest of the person[9].

Section 41A deals with cases not covered under Section 41 (1), wherein a police officer is directed to issue a notice and not to make an arrest unless the noticee after receiving notice does not comply with the terms of notice or complies once and then flouts it subsequently. If the notice complies with terms of notice, he may only be arrested for the offence concerned for reasons to be recorded in writing by the police officer.

Section 41B directs the conducts of Police officers while making and arrest. It directs them to ensure that while making an arrest they bear an accurate, clear & visible identification of his name for the purposes of easy identification, prepare an arrest memo attested by either a family member of arrestee or a respectable member of society and countersigned by the arrestee himself. The arrestee is also to be informed of his right to have a relative or a friend of his informed of his arrest, if arrest memo is not attested by his family member[10].

Rights of an Arrested Person

CrPC gives wide powers to the police for arresting a person. Such powers without appropriate safeguards for the arrested person will be harmful for the society. To ensure that this power is not used arbitrarily, several restraints have been put on it, which, indirectly, can be seen as recognition of the rights of a person being arrested. Further, once arrested, a person is already at a disadvantage because of his lack of freedom and so he cannot take appropriate steps to defend himself. Thus, to meet the needs of “fair trial”, several provisions are given in CrPC, that give specific rights to an arrested person. These rights can be described as follows:

• Right to be informed of the grounds of arrest under Section 50 of CrPc and Article 22 of Indian Constitution, it is a fundamental right to be informed. It is the duty of the police officer to inform you and also tell whether the offense is bailable or non-bailable. Normally, Bailable offenses are those where bailable can be granted and it is right of the person to be granted bail and Non- bailable offenses are where bail can’t be granted generally and it’s the discretion of the court. In Harikishan vs State of Maharashtra 1962, SC held that the grounds of arrest must be communicated to the person in the language that he understands otherwise it would not amount to sufficient compliance of the constitutional requirement.
• In non-cognizable cases, arrests are made with a warrant and the person going to be arrested has a right to see the warrant under Section 75 of CrPC. Warrant of arrest should fulfill certain requirements such as it should be in writing such as signed by the presiding officer, should have the seal of the court, Name and address of the accused and offense under which arrest is made. If any of these is missing, the warrant is illegal.
• Under Section 41, police have the power to arrest a person without a warrant for a prompt and immediate arrest is needed, no time to approach magistrate and obtain a warrant for example in a case where a serious crime has been perpetrated by a dangerous person or where chances of that person absconding unless immediately arrested. Not in all cases arrest in necessary, Notice of appearance before police officer can be made if reasonable complaint has been made, credible information has been received and suspicion exists of cognizable offence and if concerned person continues to comply with such notice and appears, then arrest is not necessary but he if he doesn’t, then arrest can be made.
• The police officer must be wearing a clear, visible and clear identification of his name which facilitates easy identification. A memo of arrest must be prepared at the time of arrest – (i) attested by least one witness, it can be a family member or member of the locality where an arrest is made (ii) countersigned by arrested person.
• Right of arrested person to meet an advocate of his choice during interrogation under Section 41D and Section 303 In Khatri (II) vs State of Bihar 1981 SCC, Supreme Court has also held that access to a legal practitioner is implicit in Article 21, which gives fundamental right to life and liberty. The state is under constitutional mandate to provide free legal aid to an indigent accused person and this constitutional obligation arises not only when the trial is commenced but also when the person is first produced before a magistrate and also when he is remanded from time to time. In Suk Das vs Union Territory of Arunachal Pradesh 1986, SC has held that non-compliance of this requirement or failure to inform the accused of this right would vitiate the trial entailing setting aside of the conviction and sentence. The right of an accused person to consult his lawyer begins from the moment of his arrest. The consultation with the lawyer may be within the presence of a police officer but not within the police officer’s hearing. SC also held that it is the duty on all courts and magistrates to inform the indigent person about his right to get free legal aid.
• An arrested person has a right to inform a family member, relative or friend about his arrest under Section 50 of CrPC.
• An arrested person have right not to be detained for more than 24hrs, without being presented before a magistrate, it is to prevent unlawful and illegal arrests. This right is a fundamental right under Article 22 of the Indian constitution and under Sections 57 and 72 of CrPC. In Khatri (II) vs State of Bihar 1981, SC has strongly urged upon the State and its police to ensure that this constitutional and legal requirement of bringing an arrested person before a judicial magistrate within 24 hours be scrupulously met. This is a healthy provision that allows magistrates to keep a check on the police investigation. It is necessary that the magistrates should try to enforce this requirement and when they find it disobeyed, they should come heavily upon the police. Further, in Sharifbai vs Abdul Razak, 1961, SC held that if a police officer fails to produce an arrested person before a magistrate within 24 hours, he shall be held guilty of wrongful detention.
• An arrested person has the right to be medically examined (Sections 54,55A).
• An arrested person has a right to remain silent under Article 20(3) of Indian constitution so that police can’t extract self – incriminating statement from a person without a will or without his consent[11].

Protection to Females

The General rule is that females are not be arrested without the presence of a lady constable and no female be arrested after sun-set but there are exceptions in some cases, where crime is very serious and arrest is important then the arrest can be made with special orders and it depends on facts and circumstances of each case. Separate lock ups to be provided for them. State of Maharashtra Vs Christian Community Welfare Council of India [(2003) 8 SCC 546]

Consequences of Non-compliance With the Provisions Relating to Arrest

In general, non-compliance does not void a trial. Just because any provision relating to arrest was not complied with does not affect the liability of accused. However, the violation will be material in case the accused is prosecuted on the charge of resistance to or escape from lawful custody.

Further, everybody has a right to defend himself against unlawful arrest and a person can exercise this right under Section 96 to 106 of IPC and he will not be liable for any injury caused due to it. Also, a person who is making an illegal arrest is guilty of wrongful confinement and also exposes himself to damages in a civil suit. If a person who has an authority to arrest, arrests a person with full knowledge that the arrest is illegal, he will be liable to be prosecuted under Section 220 of IPC. Similarly, any private person who does not have an authority to arrest, arrests a person with full knowledge that the arrest is illegal, can be prosecuted under Section 342 of IPC for wrongful confinement. A person making illegal arrest also exposes himself to civil suit for damages for false imprisonment. Also, informal detention or restraint of any kind by the police is not authorized by law.