The Arrest of persons under the Criminal Procedure Code, 1973 has been one of the most asked questions in the Judiciary examinations. This article should be read after reading these two article :-
1. Law Relating to Arrest – Everything You need to learn about Arrest
2. Arrested Person’s Rights under CrPC
In the above stated articles we thoroughly discussed all the important points required in this topic. Being a Judiciary Aspirants, focus should always be laid on winding up the answer in the requisite number of words in the examination, as per need. Hence this article will help you
A Brief Introduction
Chapter 5 of the Criminal Procedure code deals with the Arrest of persons. The topic has been dealt from Section 41 to 60 of the Code. As per the Black’s law dictionary, ‘arrest’ has been defined as, ‘stop, seize or deprive a person of his liberty by virtue of legal authority.’ Under the Code of Criminal Procedure Code, arrest means, ‘taking into custody of another person under authority empowered by law for the purpose of holding or detaining him to answer a criminal charge and preventing the commission of a criminal offence.’ Under the Criminal Procedure Code, arrest is made in 2 ways. Firstly, one made in pursuance of a warrant issued by the Magistrate. Secondly, one made without a warrant issued by the Magistrate, vide provisions of the CrPC, 1973. Further, arrest can be made by the Magistrate, the Police, or a private person under the Code.
Need for Arrest
A person is arrested for the maintenance of law and order in the society while at the same time ensuring a fair trial under the Criminal Law. Under the Code of Criminal Procedure, a person can be arrested for, firstly securing the attendance of an accused at trial, that is to say when an accused has to be taken under trial in a court of law, his attendance becomes necessary. Secondly, a person may be arrested as a preventive measure, so to say for ensuring that a crime is not committed. Thirdly, for obtaining the name and address. The need arises when a person refused to provide details as asked by the police officer. Fourthly, for removing obstruction to police, that is to say whosoever comes as an obstruction to the police officer on duty, he may be arrested. Lastly, for bringing back the escaped person, that is to say a person who has escaped from lawful custody may be brought back into custody.
Arrest with a Warrant
The Magistrate is empowered to issue an arrest warrant under the Code of Criminal procedure in both cognizable and non-cognizable cases. Here, the Magistrate can issue a warrant in both summons and warrant cases, that is to say when the Magistrate feels that the summons would not be obeyed or the person might abscond, he can issue a warrant in that summons case.
Arrest without a Warrant
Arrest without a warrant may be made by a Magistrate under section 44, by a Police Officer under section 41 or by a private person under section 43. The Criminal Procedure Code Amendment Act 2009 has made substantial changes in the law related to arrest by the police under section 41. For keeping a check on the power of the Magistrate and police while arresting, the Apex Court has laid guidelines in the following cases for the protection of rights of arrested person. In Arnesh Kumar v. State of Kumar,[1] Court instructed the State Governments to instruct their police officers to not arrest the accused directly under 498A IPC or Section 4, Dowry Prohibition Act, 1961, but to satisfy themselves on the necessity to arrest and proceed there onwards. In Delhi Judicial Services Association v. State of Gujarat,[2] the Apex Court gave guidelines with regard to the arrest of a judicial officer.
Mode of Arrest
Under the Criminal Procedure Code, the Police officer or any person authorized by law may use necessary force while arresting, shall have the power to search a place concerning the accused, shall have the power to pursue such accused into any place in India, shall have the power to obtain assistance from any person in arresting such accused, shall have the power to require his subordinate officer to arrest ad shall have the power to re-arrest person escaped from lawful custody.
Rights of Arrested Person
Under the Criminal Procedure, the arrested person has the right to be informed of the grounds of arrest, shall have the right to bail, shall have the right to be produced before a Magistrate without any delay, shall have the right of not being detained for more than 24 hours without judicial scrutiny, shall have the right to consult legal practitioner of his choice, shall have the right to free legal aid and right to be informed about the same and the right to be examined by a registered medical practitioner.
Relevant Landmark Judgements
Apart from Arnesh Kumar v. State of Bihar and Delhi Judicial Services Association v. State of Gujarat which have already been discussed, let us move on to State of Maharashtra v. Christian Community Welfare Council of India[3] wherein the Supreme Court dealt with the issue relating to the arrest of women. The Court held that while arresting a woman, a woman police officer should be present and that such arrest should not be made after the sunset and before the sunrise. In another Anil AnantraoLokhande v. State of Maharashtra,[4] Bombay High Court held that medical examination of the accused under CrPC is not violative of Article 20(3) of the Constitution. Further, landmark cases that can be attributed to the right to arrest are D.K. Basu v. State of West Bengal[5] and Joginder Kumar v. State of U.P.[6] The Apex Court identified the right to be informed and while citing Art.50A, it made obligatory on the part of the police officer to inform a friend or relative about the ground of arrest.
Conclusion
Conclusively, the right of arrest of persons has been enshrined in the Code for ensuring that the fundamental rights of the arrested person are not violated. That in cases of violation of the fundamental rights, party can approach the Courts with requisite remedy.
[1]Arnesh Kumar v. State of Kumar, (2014) 8 SCC 273.
[2]Delhi Judicial Services Association v. State of Gujarat, (1991) 4 SCC 406.
[3]State of Maharashtra v. Christian Community Welfare Council of India, (2014) 8 SCC 273.
[4]Anil AnantraoLokhande v. State of Maharashtra, 1981 Cri LJ 125 (Bom).
[5]D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.
[6]Joginder Kumar v. State of U.P., (1994) 4 SCC 260.
