Arrest: Provisions and Procedure

Introduction:

An arrest has not been defined anywhere in the Code of Criminal Procedure (Code) or any other criminal legislation. However, from the scheme of the provisions of the code, arrest in an ordinary sense may be defined as restraining or depriving liberty of a person.[1] Arrest is part of the criminal justice system where a person is taken into the custody and is physically detained on the reasonable suspicion that such person committed an offence.  Arrest is the important procedure of the criminal justice system the purpose of which is to prevent further wrong in the society. Arrest is the procedure which takes away the freedom and liberty of the person and restricts him to four walls. As liberty is considered as a fundamental right of every person and the concept of arrest very well touches the notions of liberty and any arrest made in the violations of legal provisions of the code may deprive someone of his liberty, it is therefore important to understand the concept of arrest, its procedure and other fundamental aspects of it.

Types of Arrest

In Cr.P.C., an arrest is broadly categorized into two categories:

1. Arrest without warrant: ‘Arrest without warrant’ means that police officer is entitled to arrest the person who is suspected of committing the cognizable offence and for the same he does not require any order from a magistrate. Section 41(1) of Cr.P.C. talks about the arrest of a person without a warrant.
2. Arrest by a warrant issued by the magistrate: If a person commits a non-cognizable offence, then a police officer cannot arrest a person without the warrant issued by a judge or magistrate.

Apart from this, there are two other categories of arrest. They are arrest by private person and arrest by the magistrate. Arrest by private person is provided under section 43(1) where a private person can arrest another person who in his presence commits a non-bailable and cognizable offence or if the person is a proclaimed offender. Arrest by Magistrate has been provided under section 44(1) of the Code, where if an offence is committed by any person in the presence of magistrate within his local jurisdiction, then magistrate has the power to arrest the person himself or order any other person to arrest such person who committed the offence.

Arrest Without Warrant

Arrest without a warrant has been dealt under section 41 of the Code. According to the provisions of section 41, a Police officer without the order or warrant from the magistrate may arrest a person:

1. Who commits in the presence of the police officer a cognizable offence
2. Against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion existed that the person has committed a cognizable offence punishable with the imprisonment of less than 7 years or equal to 7 years after satisfying the following conditions:
3. The police officer has a reason to believe on the basis of such information, complaint or suspicion that the person has committed a cognizable offence.
4. The police officer is satisfied that such arrest is necessary
5. To prevent such person from further committing such offence or
6. For the proper investigation of the offence
7. To prevent such person from causing the evidence disappears.
8. To prevent such person from threatening the witness
9. Unless such person is arrested, his presence cannot be ensured in the court.

(ba).   Against whom credible information has been received that he has committed a cognizable offence punishable with the imprisonment for more than 7 years or life imprisonment or death.

On analyzing section 41 of the Code, it can be observed that earlier ‘may’ appearing in section 41 gave a hint that the power to arrest is discretionary and not mandatory. Before the necessary amendments, the only condition required to arrest was the commission of the cognizable offence. Earlier section 41 was more power and police centric with little or no regards to personal liberty. Law Commission of India observed that provisions of arrest have been misused by police officers therefore it recommended to make necessary changes in the relevant provisions of the arrest.  After making amendments in the Code in 2010, now the threshold to arrest a person without warrant is very high. Now police officer can arrest a person without a warrant only if a reasonable complaint has been filed or credible information is received or a reasonable suspicion exists that such a person has committed a cognizable offence, also he needs to satisfy the conditions as provided under sec 41(b)(ii) of the Code.

Procedure of Arrest and Duties of Officer making Arrest

Every police officer making an arrest is required to comply with the certain procedures and duties as laid down in the code. As per section 41B, the police officer making such arrest shall:

1. Bear an accurate, visible and clear identification of his name
2. Prepare the memorandum of arrest which shall be-
3. Attested by the witness who is the member of the family of the person arrested or the respectable member of the locality where such person is arrested. 
4. Countersigned by the person arrested.
5. Inform the arrested person that he has the right to attest his arrest memo by any relative, friend or a member of a family.

Based on guidelines issued by the Apex Court in D.K. Basu [2], section 41C was introduced in the Code according to which police control rooms shall be established by respective State Governments in every district and further at the state level. It is the duty to display on the notice board kept outside the control room the name and addresses of the person arrested and the name and designation of a police officer who made the arrest. Further as per section 41C(3), the control room at the state level in the police headquarters shall collect the information of the arrested person, the offence committed by them and maintain the database for the information of the general public.

How arrest is made?

Section 46 of the Code, explains how the arrest is to be made. Section 46(1) provides that the police officer or the person making the arrest shall touch or confine the body of the person arrested unless such person surrenders by his words or action. Provided that where a woman is to be arrested, her oral submission to the custody may be assumed and unless the police officer is female, the male police officer shall not touch the body of a woman for making her arrest. Section 46(2) states that if the person resists such arrest or attempts to evade the arrest, then the police may use all necessary force to effect such arrest. Further section 46(3) provides that nothing in this section gives the right to cause the death of the person who is not accused of an offence punishable with the death or with imprisonment of life.

Search of Place Entered by a Person who is Required to be Arrested

If a police officer or any person making such arrest has a reason to believe that the person sought to be arrested has entered into or is residing in any place, the person is in charge of such place shall allow the police officer free ingress into the place and provide all reasonable facilities for a search therein. According to section 46(2), if ingress to such place is not possible or the police officer is not allowed to enter into such place then he can break any door or window of a house to make sure that person required to be arrested shall not be allowed to escape. In the case of female occupying in the premises, the police officer must give every reasonable chance to such female to withdraw herself before breaking into the premises.

Post Arrest Procedures and Rights of the Person Arrested

Code of Criminal Procedure provides for the formalities and the further process after arresting the person. The Code also provides various rights and safeguards to the arrested person to uphold the constitutional principles of liberty and freedom. Constitution of India also provides various safeguards to the person arrested and these safeguards are also the constituents of fundamental rights. Rights like the right to be informed about the ground of arrest, right to be produced before a magistrate, right to consult legal practitioner find place under article 22 of the Constitution. Thus it indicates that the rights of the arrested person are the fundamental rights and should be enforced at any cost.  Some of the important procedure to be followed after the arrest and the safeguards and protection given to the arrested person provided under the Code are given below:

The person arrested is required to be informed of the grounds of arrest: As per section 50, police officer arresting a person without a warrant is required to disclose the grounds of arrest with full particulars of the offence. Further as per section 50(2), where a person is arrested without a warrant for non-bailable offence, then he shall be informed that he may be released on bail after arranging sureties on his behalf. Right to know the grounds of arrest also falls under constitutional rights under article 22 (1) of the Indian Constitution. As per section 75 of the Code, in case of arrest by warrant, it is the duty of the police officer to communicate to the arrested person the substance of arrest and if required show the order/warrant of arrest. In re Madhu Limaye,[3] the Supreme Court ruled that arresting the person without informing the grounds of arrest amounts to violation of fundamental rights.

Duty to inform the relative, friend or family member of the arrested person: According to section 50(A), every police officer making such arrest is required to give the information of such arrest and place where the arrested person is being held to any of his friends, relatives or any such person nominated by the arrested person. As per section 50(A)(2), Police is required to inform the arrested person of his right given under Sub-Section 1 of section 50 (A) as soon as he is brought to the police station. Police officer is required to make an entry in the book to be kept in the police station about as to who is informed of the arrest of a person. When the person so arrested is produced before the magistrate, it is the duty of the magistrate to check whether section 50(A) (2) and (3) have complied or not. This amendment was introduced in the Code after the guidelines issued by the Supreme Court in Joginder Kumar [4] case.

Producing the person arrested before the magistrate:  In case of arrest without warrant, the arrested person shall be produced before the magistrate or officer in charge of a Police Station (SHO) without any unnecessary delay (section 56). Also as per section 57, the person arrested without a warrant should not be detained in the custody beyond 24 hours without the order of magistrate.

Medical Examination of the person arrested: As per section 54, the arrested person is examined by a medical practitioner and medical report must be prepared to mention any injuries or marks of violence and the approximate time when such injuries were inflicted. Further, the report shall be provided to the arrested person or the nominated person.

Right to consult a legal practitioner:  Article 22(1) of the Constitution and 41D of the Code, gives the arrested person, the right to consult and defended by the legal practitioner of his choice during the interrogation but not throughout the interrogation. In SIO v. Jugal Kishore,[5] Supreme Court gave importance to the right to consult a lawyer to prevent the arrested person from involuntary self-incrimination.

Conclusion

Code of Criminal Procedure provides a descriptive procedure regarding the arrest of a person. It provides the procedure for making an arrest of a person, obligations of the police officer making such arrest, rights of the arrested person and various other related mechanisms. However, it is to be noted that no arrest can be made just because a police officer has the power to do so.  Existence of power to arrest is one thing and the justification for exercising such power is another thing.  Any illegitimate arrest may cause incalculable harm to the liberty, self-esteem of the person; therefore it is necessary that the arrest shall be made in compliance with the provisions provided under the Code.  Denying a person of his liberty is a serious matter and directly affects the fundamental rights provided under the Constitution. It becomes extremely crucial that police officer or any person making the arrest must strictly adhere to the provisions related to arrest and ensure all the rights which every arrested person is entitled to.

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References:

[1] State of Haryana v. Dinesh Kumar (2008) 3 SCC 222.

[2] D.k. Basu v. State of West Bengal (1997) 1 SCC 416.

[3] In the Matter of Madhu Limaye v Unknown (1969) 1 SCC 292.

[4] Joginder Kumar v. State of U.P. 1994 SCC (4) 260.

[5] 2011 (270) ELT 147 (SC).