HOW ARREST CAN BE MADE AND THE RIGHTS OF THE ARRESTED PERSON

HOW ARREST CAN BE MADE AND  THE RIGHTS OF THE ARRESTED PERSON

1) INTRODUCTION

The code has not defines the term “Arrest”. The dictionary meaning of Arrest is apprehension of a person by legal authority resulting in deprivation of his liberty.
Arrest may be necessary not only for the purpose of securing the attendance of  the accused at the time of trial, but it may become necessary as a preventive or precautionary measure in respect of a person intending to commit a congnizable offence, or a habitual offender or an ex-convict or a person found under suspicious circumstances.

The apex court in the State of Haryana V. Dinesh Kumar (2008) 3 SCC 222, observed that the expression arrest has neither being defined in CrPC or IPC or any other enactment dealing with the criminal offences. The only indication as to what constitute arrest may be perhaps be found in Section 46 of Cr.P.C. which describes the mode of arrest.
The word “Arrest” when used in its ordinary sense, means the apprehension or restraint or the depriviation of one’s personal liberty.
An arrest consist of takig into custody of another person under the authority empowered by law for the purpose of holding or detain him to answer a criminal charge and preventing the criminal offence.

In the case of, Directorate of Enforcement V. Deepak Mahajan AIR 1994 SC 1775, it may be noted that “Custody” and “Arrest” are not synonyms terms. Talking a person into judicial custody is always followed after the arrest of the person.


2) TYPES OF ARREST

1- Arrest with warrant
Arrest made in the pursuance of a warrant issued by magistrate

2- Arrest without warrant (Section 41)
Arrest made without any warrant but made in accordance with some legal provision permitting such an arrest.

3) ARREST BY POLICE, MAGISTRATE & PRIVATE PERSONS  (Section 41 to 44)

(a) ARREST BY POLICE

 Section 41. When police may arrest without warrant.—
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—
[(a) who commits, in the presence of a police officer, a cognizable offence; 
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence 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, namely:— 
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) 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:
[Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.]
(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;]
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or 
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to
such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) 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 offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
[(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.]

In the case of Joginder Kumar V. State of Uttar Pradesh, CrLJ,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 do arrest.

In the case of State V. Bhera, Cr LJ, 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 arrest the persons.

 42. Arrest on refusal to give name and residence.—
(1) When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
(2) When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required: 
Provided that, 
if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.
(3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.

A police officer to arrest a person for a non-congnizable offence, if he refuses to give his name and address or the police officer is to believe that the name and address provided are false.

(b) ARREST BY A PRIVATE PERSON

43. Arrest by private person and procedure on such arrest.—
(1) Any private person may arrest or cause to be arrested any person who in his presence commits a non bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.
(2) If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re-arrest him.
(3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.

Any person may arrest or cause to be arrestes by any person who in his presence commits a congnizable offence and the private person after arresting the person shall without delay to be taken to the nearest police station.
If the private person after arresting any person keeps the person in his own custody without any sufficient reason then he may guilty of offence under section 342 of Indian Penal Code.


(c) ARRST BY MAGISTRATE

44. Arrest by Magistrate.—
(1) When any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.
(2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

When any offence is committed in the presence of the Magistrate, he himself can arrest or order any person to arrest.
Magistrates have a wider pewer than private person. A magistrate can arrest on the ground of any offence and not only on cognizable offence.

4) HOW ARREST IS DONE 

Here it is described the mode in which arrest are to be made either with or without warrant.

46. Arrest how made.—
(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action:
[Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.]
(2) 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. 
(3) 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. 
(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

 The arrester shall actually touch or confine the body of a 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 touch to confine the body will not amount to arrest.

In the case of Bharosa Ramdayal V. Emperor AIR 1941, it was held that if a person makes a statement to the police accusing himself of commiting an offence, he would be considered to have submitted to the custody of the police officer.

In the case of Birendra Kumar Rai V. Union of India, CrLJ 1992, it was held that arrest need not be by handcuffing the person, and it can be also completed by spoken word of the person submits his custody.

 If any person forcefully resisrt the endeavour to arrest him or attempts to evade the arrest, then such police officer may use all necessary forces to arrest him.
If he runs away the police officer shall take action to prevent his escape and in doing so.

 Also there is no right to cause death of the person who is not accused of an offence with death punishment or imprisonment for life while arresting such person
49. No unnecessary restraint.—The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

 Where a women is to be arrested it shall be made by a women police officer and the women can only be arrested after sunset and before sunrise except when there is a written report submitted to the magistrate by the women police officer for the arrest to be made.

In the case of State of Maharashtra V. Christian Community welfare Council Of India [ (2003) 8 SCC 546], it was held that in special circumstances the provision made uder section 46(3) of CrPC for the protection of the women can be ignored and they can be arrested at any time of the day or night.

5) RIGHTS OF AN ARRESTED PERSON

The Code of Criminal Procedure, 1973 gives wide power to the police for arresting a person. To ensure that this power is not used arbitrarily, several restraints have been put on it which indirectly, can be recognised as the right of the arrested person.

The rights of an arrested person are given here as follows :

I. Right to know the ground of his arrest  [Section 50(1)]

Every police officer or any other person arresting any person without warrant shall communicate him full particulars of the offence for which he is arrested.

Section 50. Person arrested to be informed of grounds of arrest and of right to bail.—
(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

II. Right to information regarding to be released on bail [Section 50(2)]

When any person is arrested without the warrant he shall be informed that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

Section 50. Person arrested to be informed of grounds of arrest and of right to bail. — 
(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

III. Right to be taken before Magistrate without delay [Secton 56]

Any person arrested with or without warrant must be bought to the magistrate without any unnesesary delay having jurisdiction of the case.

Section 56. Person arrested to be taken before Magistrate or officer in charge of police station.—A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.

IV. Right of not being detained more than 24 hours without judicial scrutiny [Section 57]

No police officer shall retain any person in his custody for more than 24 hours without the special order of magistrate under section 167 of CrPC.

Section 57. Person arrested not to be detained more than twenty-four hours.—No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.

V. Right to consult a legal practitioner [ Section 303]

Any person whom proceedings are initiated have a right to be defended by a pleader of his own choice.

Section 303. Right of person against whom proceedings are instituted to be defended.—Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.

VI. Right of an arrested indegent person to be provided free legal aid 
[Article 22(1)]

Article 21 of the Indian Constitution provides that free legal aid shall be provided to an indigent accused person.

Article 22(1) in The Constitution Of India 1949 (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

In Hussainara Khatoon case, S.C. declared Right to Free Legal Aid as the Fundamental Right. 2. Constitutional Amendment Act, 1976 provided for Article 39A: Free legal Aid.

VII. Right to examined by medical practitioner [ Section 54]

The accused who is arrested has a right to have him medically examined to enable him to defend and protect himself properly. The person who is arrested should be given the right to have his body examined by a medical officer when he is produced before magistrate with which he is charged was not committed by him or that he was subjected to physical injury.

Section54. Examination of arrested person by medical officer.—
(1) When any person is arrested, he shall be examined by a medical officer in the service of Central or State Government, and in case the medical officer is not available, by a registered medical practitioner soon after the arrest is made:
Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner. 
(2) The medical officer or a registered medical practitioner so examining the arrested person shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted. 
(3) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person.


In the case of D.K. Basu V. State Of West Bengal (AIR 1997 SC 610), it was held that while arresting, any person either with or without warrant, the police officer making the arrest should have his name and designation present on his batch.
And the police officer shall prepare the Memo of Arrest with the following particulars:
I. Name of person to be arrested
II. Name of the person arresting
III. Charges
IV. Place of the arrest
V. Counter sign by 3 witnesses
VI. Within 12 hours of arrest, police to inform of such arrest made and also where the person is put up in the custody of police.


6) CONCLUSION

Arrest is not defined in the code and the meaning of arrest is apprehension of a person by legal authority resulting in deprivation of his liberty.
Arrests are of two types with warrant and without warrant.
The procedure how an arrest can be made is provided in the code giving the police officer a wide power to arrest any person and on the other side to ensure the power is not arbitrary used by the police officer there are certain rights of the arrested person which are also provided in the code.
Here we have discussed about both the aspects i.e. how the arrest is made and the powers given to the police officer and the rights that are provided to the arrested person so that he is not wrongfully constraint.





BY-
Maneesh Adesh Srivastava