ARREST: PROCEDURE AND RIGHTS OF ARRESTED PERSON

  • INTRODUCTION:

In arrest, a person is deprived of his liberty by the legal authority by taking that person into custody thereby detaining him to answer a criminal charge leveled against him. There must be an intent to arrest under the authority of law, accompanied by the detention of a person in the manner according to law. Criminal procedure Code (Cr. P.C), 1973, proposes two types of arrests: (i) arrest made in pursuance of a warrant issued by a magistrate (ii) arrest made according to a legal provision allowing arrest without such a warrant.

  • WHO CAN ARREST?

The Criminal Procedure Code has empowered Police Officer, Magistrates, or any Private Person to make an arrest.

Arrest by Police Officer can be made without a warrant only in cognizable offences and with a warrant in non-cognizable offences.

Any Executive or Judicial Magistrate may arrest an individual without a warrant as per Section 44 of Cr. P.C.

Section 43 of Cr. P.C empowers a Private individual to arrest someone if that person is a proclaimed offender and that he has done non-bailable offence and cognizable offences in his presence.

The code exempts the members of the Armed Forces from being arrested for anything done by them in the discharge of their official duties except after obtaining the consent of the Government (Sec. 45).

  • HOW ARREST IS MADE?

The mode of making arrests is stated in Section 46 of Cr. P.C. In making an arrest the Police Officer /other person making the same touches or confines the body of the person to be arrested unless there be a submission to the custody by words or action.  While executing the arrest warrant the Police shall not handcuff the arrested person without taking an order to do so from the Magistrate. Section 46 authorizes the arresting person to use all necessary means for making arrests if the accused person who is to be arrested tries to evade his arrest. However, the arresting person cannot cause the death of that accused if the offence with which he is accused is not punishable with death or imprisonment for life.

RIGHTS OF ARRESTED PERSONS -:

The Rights guaranteed to the arrested person in the Criminal Procedure Code (Cr.P.C.) and Constitution of India are as under:

  • Section 49: No Unnecessary restraint

Section 49 of Cr.P.C.puts a restriction on the arresting person that he shall while making arrest not use more restraint than necessary if the accused person to be arrested tries to escape.

  • Section 50(1): Right to know grounds of arrest-

The police officer arresting any person shall communicate to him all the details of the offence for which he is arrested and also whether his offence is bailable or not. Under Sec. 50 of Cr. P.C. and Article 22(1) of the Indian Constitution, the arresting police officer must give all such information to the arrested person as it is his Fundamental Right to be informed.

  • Sec. 75: Right to see the warrant

As provided in section 75 of Cr. P.C. when a person is arrested with a warrant in a non-cognizable case, the person has the right to ask the arresting police officer to show that warrant. Warrant of arrest should be written, attested by the presiding officer, should contain the seal of Court along with the accused’s name, and address, and his offence. If these requirements are not fulfilled the warrant is considered illegal.

  •  Right to inform Family or Friend-

 An arrested person has a right to inform any family member, relative or friend, or another person interested in his welfare, about his arrest and where he is being detained.

  • Section 50(2): Person arrested to be informed of the right to bail:

As per Section 50 of Cr. P.C. when an arrest of a person is made in a bailable offence then the police officer shall inform the arrested person that he has a right to apply for bail and for that he needs to arrange the sureties on his behalf.

  • Section 303: Right to Consult a Lawyer:

An accused person has a right to consult a lawyer, which is recognized under Article 22(1) of the Constitution and Section 303 of the Cr. P.C. An accused person has a constitutionally guaranteed right against self-incrimination under Article 20(3) of the Constitution. An accused has a legal right to legal advice while being interrogated. The right to stay silent is related to the statement and confession made by the accused person in the court. Further, it is the responsibility of the magistrate to decide if any statement or confession made by the accused person during interrogation by police was voluntary or was after the use of force and manipulation.

  • Sections 56, 57: Right to be produced before a Magistrate-

An arrested person has the right not to be detained for more than 24 hours, without being presented before the Magistrate. If a Police Officer fails to do so, he would be liable for wrongful detention. It is to prevent unlawful and illegal arrests. This right is a Fundamental Right under Article 22 of the Indian Constitution and supported under Sections 56, 57, and 76 of Cr. P.C.

Sections 53, 53A, 54, 55A: Right to be examined by a Registered Medical Practioner-

Every person who is arrested has a right to have himself medically examined either when he is produced before the Magistrate or when he is under custody. This gives the arrested person a chance not only to prove his innocence but also to prove any act of torture done to him by the police authorities. Section 55A has made it a mandatory duty of the person having an accused person’s custody to look after the health and security of the accused.

  • Section 304: Right to Free Legal Aid-

Article 39A of the Constitution of India provides for free legal assistance to the accused who because of poverty not able to afford legal aid to ensure a fair trial. The same right was reaffirmed in Khatri v/s Bihar, where the Court asked the State to provide free legal aid to the poor accused. The same right to free legal aid is provided at the first instance of the production of the accused before the Magistrate in the Court under Section 304 of Cr. P.C. Further, the Supreme Court has also held that it is a constitutional obligation on the State to provide legal assistance free of cost to every poverty-stricken accused during the commencement of the trial and when he first appears before the Magistrate.

  • Right against Custodial Violence

The Supreme Court in Nilabati Behera V. State of Orissa held that wrongful detention gives rise to a claim for compensation by the victim. The Supreme Court has deprecated the practice of Custodial Violence and extraction of information/ confessions by the use of illegal/third-degree methods. Article 21 of the Constitution also protects Custodial Violence. Furthermore, Sections 24-27 of the Indian Evidence Act, 1872, place a bar on the admissibility of statements made to Police Officers, ensure that the interrogation by police is kept humane and within legal parameters.

  • Section- 50 (2): Right to be released on bail-

The arrested person has the right to get released on bail by making arrangements for the sureties or just inform him of this right when arrested without a warrant for an offence other than a non-cognizable offence.

  • Special protection to Females:

The general rule is that Females are not to be arrested without the presence of a lady constable and further no Females be arrested after sunset. However, if the offence committed by the female is serious and her arrest can not be avoided or delayed then special orders can be made for making such an arrest. Separate lock-ups to be provided for them.

The salutary principle that the medical examination of a Female should be made by a Female Medical Practitioner has been embodied in sec 53(2).

  • ARREST WITH WARRANT:

An order is issued and signed by the Magistrate instructing a police officer for arresting a specific person. This may also be in cases when the person to be arrested is of such high status that a Police Officer may hesitate to arrest them without a warrant. The police officer who is executing the warrant by arresting that specific person shall inform him about the subject matter written in the warrant and if asked may even show him the warrant. After making the arrested the police officer is duty-bound to bring the arrested person before the Court as early as possible.

  • ARREST WITHOUT WARRANT:

Section 41 of Cr.P.C. states the conditions under which a police officer is authorized for arresting any person without a warrant.

(1)    Any Police Officer may without an order from a Magistrate and a warrant, arrest any person-

  • Who engaged in any cognizable offence, or against whom an appropriate complaint has been made, or dependable information has been received by the police authorities, or a sensible suspicion exists, of his having been so engaged; or
  • who illegally has any instrument of house-breaking; or
  • who is a proclaimed offender either under Cr.P.C. or by order of the State Government; or

Who is possessing something that is suspected to be stolen and is also suspected to have done an offence with that thin; or

who tries to interrupt or stop a police officer executing his duty, or who has escaped, or attempts to escape, from legal custody;

Who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

Who has been found to be engaged in, or a rational complaint has  been registered, or reasonable suspicion is there of he either committing or engaging in an offence done out of India which is a punishable offence under Indian law or extradition law; or

Who is a convict released on a rule made in sub-section 5 of section 356 and has committed a breach of that rule; or

for whose arrest a request has been made by any other police officer

(2) Any officer in charge of a police station may arrest any person classified in section 109 or section 110 of Cr. P.C.

  • 41A. NOTICE OF APPEARANCE BEFORE POLICE OFFICER:

A Police Officer, in all cases where the arrest of a person is not required under section 41(1), shall issue a notice directing the person against whom a reasonable complaint has been made to appear before him whenever required.

When the person receives such a notice he shall mandatorily follow the rules given in the notice. When he follows all the rules of the notice and continues doing so such a person need not be arrested. Where such person, at any time, fails to comply with the terms of the notice, he shall be arrested.

  • 41B. REQUIREMENTS OF MAKING A VALID ARREST:

 Every police officer while making an arrest shall-

(a) Bear an accurate, visible, and clear identification of his name;

(b) A memorandum of arrest has to be made by the arresting Police Officer that shall be-

(i) It shall be attested by the arrested person’s family member or any reputable member of the locality in which the person has been arrested.

(ii) It shall be countersigned by the person arrested; and

(c) If the memorandum is not attested by any family member then the arrested person shall be informed that by law he has a right to inform any of his relatives or a friend to be informed about his arrest.

  • Section 47:  POWER OF THE POLICE TO SEARCH ANY PLACE ENTERED BY THE PERSON WHO IS SOUGHT TO BE ARRESTED:

If any Police Officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place,  then the Police Officer shall ask the person living therein, to allow him to enter and search that place.

If ingress to such place cannot be obtained under Section 47 of Cr.P.C. it shall be lawful for the Police Officer to break open any outer or inner door or window of any house or place either to enter any such place to make an arrest or to free himself or any other person who lawfully entered that place to make an arrest and is detained therein.

  • Sec. 51. SEARCH OF ARRESTED PERSONS TO BE MADE BY THE POLICE OFFICER:

Whenever a person is arrested by a Police Officer or by a private person under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the Person arrested cannot furnish bail, the police officer to whom he takes over the person arrested, may search such person, and place in safe custody all articles and belongings of the person arrested except the clothes he is wearing. In case of any article or thing is seized from the arrested person, a receipt shall be given to such person showing the articles or things taken in possession by the Police Officer. Whenever any female is required to be searched, the search shall be made by another female only with strict regard to decency.

  • Section 52- POWER OF THE POLICE OFFICER TO SEIZE OFFENSIVE WEAPONS:

If the arrested person has in his possession any offensive weapon then any police officer or any other person authorized by Cr.P.C. to arrest may take any such offensive weapons from him, and shall handover all weapons were so taken to the Court or officer before which or whom the officer or person making the arrest is required by the Cr.P.C. to produce the person.

  • S. 60. POWERS OF THE POLICE ON ESCAPE OF THE ARRESTED PERSON TO PURSUE AND RE-TAKE:

If an arrested person in lawful custody escapes or is rescued then the person from whose lawful custody he escaped or was rescued has the power to immediately pursue and arrest him in any place in India.

  • MISUSE OF POWER OF ARREST:   

The power of arrest is being wrongly and illegally used in a large number of cases all over the country to extort money and other valuable property. The misuse of power takes place because of not clear, vague, and general language is written in the Cr. P.C. The use of subjective words such as reasonable, credible, and if it appears to such officer in Section 41, 42, and 151 of Cr. P.C. allow the police officers to manipulate these sections. Neither there is any in-house machinery within the police department to check such misuse or abuse of power to arrest by the police nor does the complaint of such abuse and misuse to higher police officers help except in some exceptional cases.

LANDMARK CASES:

  • JOGINDER KUMAR VS STATE OF U.P [(1994) 4 SCC 260]

In this case, the Apex Court ruled that an arrested person has a right to inform anyone of his friends, relatives, or another well-wisher about his arrest and the place of his detention. It is the duty of the police officer shall inform the arrested person about this right. An entry needs to be made in the diary by the police officer as to who was informed of the arrest. The Magistrate must make sure that all these requirements have been complied with by the police. The Supreme Court reiterated that no arrest can be made because it is lawful for the police officer to do so. The power of the police to arrest is one thing and the justification for the exercise of it is another. The police officer has to justify the arrest of a person made by him.

  • D.K BASU VS STATE OF WEST BENGAL [AIR 1997 SC 610]

 This landmark case is related to “Custodial torture”. A Public Interest Litigation was filed by Dr. D.K Basu, Executive Chairman of the Legal Aid Services, an NGO of West Bengal. He addressed a letter to the Chief justice drawing his attention to certain news items published in the newspapers regarding deaths in the police lock-ups and custody. This letter was treated as the writ petition by the Supreme Court. The apex court laid down guidelines to be followed in all cases of arrest or detention till legislative measures are taken. Some are the recent amendment made to the Cr. P.C. Some of the Supreme Court guidelines regarding the arrest of a person laid down in the D. K Basu case. i.e. like amendments to sec. 41 like 41 A(Notice for appearance), 41B( Procedure of arrest and duties of the officer making an arrest), 41C(control room at district), 41D(Right to the arrested person to meet an advocate chosen by him during interrogation) section 50A (obligation on the arresting person to inform about the arrest, etc., to the person nominated by the arrested person), Right to the arrested person to medical examination, etc. The Court ordered that these directions should be widely circulated because Creating awareness about the rights of arrested shall help to combat the evil of custodial crimes and bring in transparency and accountability.

  • STATE OF HARYANA VS DINESH KUMAR [(2008) 3 SCC 222]

In this case, the respondent without surrendering to the police had appeared before the Magistrate with his lawyer and was immediately granted bail. The High Court held that as the accused neither surrendered nor taken into custody, there was no arrest. The Supreme Court disagreed with the High Court. It held that the appearance of the accused before the Magistrate even in such a situation constitutes an arrest. The Court held that a person is actually in custody at the time of his arrest also when he is presented in front of the Magistrate, and when he is remanded. When a person surrenders before the Court he is considered to be in judicial custody. Supreme Court said that the High Court had erred in coming to a finding that the accused had never been arrested since he had voluntarily appeared before the magistrate and had been granted bail immediately.

  • ARNESH KUMAR VS STATE OF BIHAR [(2014) 8 SCC 273]

In this case, the apex Court emphasized the need for proper investigation and care to be taken by the police before using drastic power of arrest and also by the Magistrate before allowing detention of the accused. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. In short, the police officers do not arrest the accused unnecessarily and Magistrate does not authorize detention casually and mechanically.

  • CONCLUSION:

The power of arrest is being misused and more because of the unawareness of people about their rights. We think that the protectors of law and order must be right. But, high percentages of arrests are made even in bailable offences, bail applications are rejected even in cases where getting bail is one’s right. An arrest has a diminishing and demoralizing effect on one’s personality. The arrested person is outraged, alienated, and becomes hostile. Therefore, there needs to be a balance between the security of the State on one hand and individual freedom on other hand. These problems ignore the essence of Article- 21 of the Indian Constitution as well as the fundamental human rights that are available to everyone under the Universal Declaration of Human Rights. The stipulations issued in D.K. Basu v/s West Bengal by the Supreme Court of India are not being properly executed and therefore, we need to execute the issued guidelines properly which would ultimately help decrease the number of illegal arrests and custodial deaths.

5 thoughts

Leave a Reply