Law Relating to Arrest

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Law Relating to Arrest

Arrest’ means deprivation of liberty of a person by legal authority. Chapter V of the Code of Criminal Procedure, 1973 (Cr.P.C.) deals with the provisions related to Arrest. The Indian criminal laws do not define the term ‘Arrest’ anywhere.

An arrest is an important tool in criminal laws and its purpose is to present an offender before the court and prevent him from escaping. The arrest also helps to prohibit the accused from committing any subsequent crime. Power to arrest under Cr.P.C. is lawful. However, it does not mean that being a lawful act any person will be arrested without any reasonable cause. There has to be a justifiable cause to arrest any person as the same was held in the case of Joginder Kumar v. the State of UP.[1]

Who can Arrest:

Under Cr.P.C. arrest can be made by a-

  • Police officer
  • Magistrate or,
  • Any private person

Arrest by Police Officer:

A police officer under Section 41 of Cr.P.C. may arrest any person without the order of Magistrate and warrant if the said person:

  1. has committed any cognizable offence; or
  2. has been declared as an offender either under Cr.P.C. or by the order of the State Government; or
  3. is reasonably suspected to be in possession of any stolen property or having suspected of committing any offence relating to such thing; or
  4. from the lawful custody, has escaped or attempts to escape; or
  5. restricts any police officer in the execution of his lawful duty; or
  6. is suspected to be a deserter from any Armed Forces of the Union; or
  7. is been concerned under any law relating to extradition; or
  8. being a released convict commits the breach of any rule mentioned under 356(5) of the Cr.P.C. or
  9. whose requisition to arrest has been received from another police officer specifying the person to be arrested and the grounds of his arrest.

A police officer is also empowered under section 42 of Cr.P.C. to arrest any person, who has been accused of committing a non-cognizable offence and refuses to provide his name and residence on the demand of such officer or the officer has the reasons to believe that such information is false, in order to ascertain such information.

Arrest by Magistrate:

A Magistrate under section 44(1), within his local jurisdiction, may arrest any person who has committed the offence in his presence and can also commit him to custody. Under section 44(2) a Magistrate may arrest any person for which he is competent and is also permitted to issue a warrant.

Arrest by a Private Person:

A private person is enabled under section 43(1) to arrest any person who in his presence commits a non-bailable and cognizance offence or who is a proclaimed offender. A private person, however, is required to hand over the arrested person, without any unnecessary delay, to the police officer or to the nearest police station.

According to Section 45(1), the member of Armed Forces of the Union is exempted from being arrested for anything done by them in the discharge of their official duties. They can only be arrested after obtaining the consent of the Central Government.

Arrest how to be made:

Section 46 of Cr.P.C. prescribes the procedure to arrest. Arrest being deprivation of liberty of a person can be affected by actually touching the body of the person. As per Section 46(1), the person making the arrest shall actually touch the body of the person to be arrested unless he submits to the custody by action or word. Mere an oral declaration of arrest without actually submitting to custody will not amount to an arrest as the same was held in the case of Harmohanlal v. Emperor.[2] In the case of Bharosa Ramdayal v. Emperor,[3] 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.

The proviso to section 46(1) provides that where a woman   is required to be arrested, her submission to the custody shall be oral. A police officer is not required to touch the woman except the circumstances require or where the police officer is female. Further, as per section 46(4), no woman shall be arrested after sunset and before sunrise. However, in exceptional circumstances, it can be done so if the prior permission of the Judicial Magistrate of the first class is obtained by a female police officer by making a written report.

Section 46(2) provides a wider power to the person in the matter of arrest. If a person tries to escape the arrest, the person making the arrest may use all necessary force to effect the arrest. Section 46(3) restricts the person making the arrest to cause the death of a person who is not accused of an offence which is punishable with death or life imprisonment. Thus, no person has the right to cause the death of a person.

Generally, a police officer has the power to arrest a person within his jurisdiction but section 48 provides an extension to such powers. A police officer who has authority to arrest a person without a warrant may pursue such person into any place in India, in order to arrest the person. Further, according to section 49 the person arrested shall not be restrained more than that is required to prevent his escape.

Rights of Arrested Person:

Cr.P.C. has given very wide power to any police officer in matters of arrest. In order to ensure that this power is not abused and used arbitrarily, there are certain rights of an arrested person embodied in the code. Following are the rights of an arrested person:

  1. Right to be informed about the grounds of Arrest: as per section 50(1), it is the duty of the person making the arrest to inform the arrested person the grounds of his arrest. It is also the fundamental right to be informed of the grounds of arrest as per article 22 of the Constitution. The communication must be in the language which is understood by the accused. In Harikishan v. the State of Maharashtra,[4] Supreme Court 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 with the constitutional requirement.
  2. Right to be informed of Right to Bail: If a person has been arrested for a bailable offence, it is the duty of police officer to communicate to him that he is entitled to the right to bail.
  3. Right not to be detained more than 24 hours: According to section 57 of Cr.P.C., a person arrested without a warrant will not be detained in custody for more than 24 hours. Within 24 hours the accused shall be produced before the Magistrate. It is also, a fundamental right guaranteed by the Article 22(2) of the Constitution. If a person is not produced before the court within the said period the detention will be said to be illegal. In Khatri (II) v. the State of Bihar,[5] Supreme Court 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 v. Abdul Razak,[6] the apex court 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.
  4. Right to be defended by a legal practitioner: Article 22(1) of the Constitution provides the fundamental right to the person arrested to consult a legal practitioner of his choice. Further, it also the duty of Court under section 304 of Cr.P.C. to engage a pleader at expense of the State for accused if he has no sufficient means to engage one. Supreme Court in Khatri (II) v. the State of Bihar,[7] held that State is under a Constitutional mandate to provide free legal aid to an indigent accused.

Law relating to Arrest in Hong Kong:

In Hong Kong, it is lawful for a police officer to arrest a person who is accused of any offence under the law. A police officer will be able to exercise his power only if the arrest warrant by a Magistrate has been issued against the person who is to be arrested. It is wrongful in Hong Kong to arrest any person without the arrest warrant and even the person arrested without the warrant may sue the officer for damages. However, this rule has an exception. According to section 50(1) of the Police Force Ordinance of Hong Kong, a police officer may arrest a person if he is reasonably able to suspect that the person is guilty of an offence punishable in the law.

Law Commission of India on Law of Arrest:

The Law Commission in its paper has explained law relating to arrest and powers available to police officers in the matters of arrest. The paper discusses the law of arrest and its implication in the present scenario. It explains the wide powers available to police officers under Cr.P.C. All such powers are excessively misused and became discretionary. The plain language of Cr.P.C. as used under section 41 and 42, the words like ‘lawful excuse’, ‘reasonably suspected’, ‘reasonable complaint’, ‘credible information’ etc. open rooms for abuse of such powers to a great extent. The power which empowers the police officer to arrest any person to his satisfaction as under section 151 turned out to be objective. The police officers are rarely punished in India for the wrongful arrest. No check over such powers leads to its abuse. This power now has become a source to extract money and other properties.

The 3rd report of the National Police Commission in its report has stated the main source of corruption in the Indian police is the power of arrest.[8] The Law Commission in its paper recognized the need to end abuse of power to arrest by a police officer.

The Supreme Court Arnesh Kumar vs. the State of Bihar and another,[9] held that “Police officers make an arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from the power to arrest, the police officers must be able to justify the reasons thereof.

The Commission has suggested the following amendments in Code of Criminal Procedure, 1973 to curtail the misuse of the power:

  1. To amend section 41 of the Code to provide that no person will be arrested merely o the suspicion to be involved in an offence;
  2. To make provisions for bail more liberal and bail should be granted in all offences except for the offences like rape, murder, robbery and offences against the State or where the escape of the accused cannot be prevented except with arrest;
  3. No arrest will be made by a police officer simply for the reason of questioning;
  4. To expressly provide for the well – being of the arrested person i.e. an arrested person’s well – being and safety is the responsibility of the authority making the arrest;
  5. To provide for records of custody including the name and address of the person arrested, details of the arresting officer, time and date of arrest, grounds of arrest and the name of persons informed about the arrest.

Illustrations:

  1. A being a thief steals the property belonging to B. B in order to save his property applies physical force and arrest A and then handover him to a nearby police station. A is justified to do so.
  2. A being a police officer apprehends B being a dacoit and arrest him. He is justified in doing so.
  3. A is a thief and to extract ransom arrest a person. His arrest is not an arrest but a wrongful confinement.

Frequently Asked Questions:

  1. What is the meaning of Arrest in Cr.P.C.?

The meaning of the word arrest has not been defined anywhere in the Cr.P.C. Arrest simply means deprivation of one’s liberty by the lawful authority. Arrest in Cr.P.C. is the tool to curb crime against the society, it is the way to restrict an accused so he can be produced before the court.

  1. What is the procedure for arrest under Cr.P.C.?

Section 46 deals with the procedure for arrest. An arrest shall be made by actually touching the person except where he submits to custody by word or action. The section provides certain protection in the matters of arrest. A woman shall be submitted to custody by words and shall be touched by the police officer except the circumstances require or where the officer is female.

Also, no person has a right to cause the death of the person who not accused of an offence punishable with death or life imprisonment.

  1. What is arrest without warrant under Cr.P.C.?

A person cannot be arrested without an arrest warrant or order of Magistrate. However, section 41 of the Cr.P.C. enumerates the condition where the arrest can be made without a warrant or order of Magistrate. Following are the conditions where a person can be arrested by a police officer without a warrant:

  1. If he has done any cognizable offence
  2. Is declared as an offender under Cr.P.C. or by any of the State Government
  3. Is suspected to be in possession of any stolen property
  4. Is escaped or attempted to escape from lawful custody
  5. Obstructs any police officer in the performance of his legal duty
  6. Is a deserter of any Armed Forces of the Union
  7. Is involved in any law relating to extradition
  8. Whose requisition to arrest is received by another police officer.

[References]

[1]Joginder Kumar v. the State of UP, (1994) SCC 4 260.

[2]Harmohanlal v. Emperor, (1929) 30 Cri LJ 128.

[3]Bharosa Ramdayal v. Emperor, (1941) 42 Cri LJ 390.

[4]Harikishan v. the State of Maharashtra, (1962) 64 BOMLR 522.

[5]Khatri (II) v. the State of Bihar, (1981) 1 SCC 627.

[6]Sharifbai v. Abdul Razak, AIR 1961 Bom 42.

[7] Khatri (II) v. the State of Bihar, (1981) 1 SCC 627.

[8]Law Commission of India, Consultation Paper on Law Relating to Arrest, http://lawcommissionofindia.nic.in/reports/177rptp2.pdf.

[9]Arnesh Kumar vs. State of Bihar and another, Criminal Appeal No. 1277 of 2014.

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