Introduction:
The articulation ‘capture’ is gotten from the French word ‘arrester’, which signifies “to stop or remain’ and implies a limitation of an individual. In a real sense it signifies” hardship of individual freedom by a lawful position”. It signifies “worry of an individual by lawful authority bringing about the hardship of his own freedom”. At the end of the day, capture implies taking an individual in custody under lawful power. Capture happens when one is taken in custody and limited from freedom. Capture comprise of contacting and keeping an individual’s body so as to confine him.
The word capture has not been characterized in the code nor in the Indian Penal Code, 1860. The Supreme Court in Union of India v. Padam Nurain[1] characterized capture as-Arrest might be characterized as ‘the execution of the order of an official courtroom or of an appropriately approved official.’ Capture is a significant cycle in the Code. It guarantees the presence of the charged at the preliminary.
Duties and Powers of Police Officers
Warrant signifies “a composed request of a Court routed to at least one cop coordinating to capture an individual, whose name and address is given with the offence charged, to create him under the watchful eye of the Court on a predetermined date and time”.
A warrant of capture might be characterized as a request gave under the seal and mark of the Court and coordinated to a cop approving him to capture and bring under the steady gaze of the Court the individual named in that. To be legitimate, a warrant of capture should satisfy the accompanying prerequisites.
- It must be in writing.
- It must be in duplicate.
- It must be signed by the presiding officer of the Court.
- It must be sealed.
- It must be clearly identified as the person to be arrested.
- It must specify the offence.
- It must contain the name and designation of the police officer or other person who is to execute it.
Arrest without warrant: Generally a person shall be arrested with a warrant. However, a person may be arrested without a warrant because of the serious nature of the circumstances and to enable the police to discharge their duties effectively. Arrest without a warrant can be made under the following instances:
- Arrest without warrant by police (Sec. 41, 41-A, 41-B, 41-C, 41-D, 42 & 55)
- Arrest by a Private person (Sec. 43)
- Arrest by Magistrate (Sec. 44)
- Protection of members of armed forces from arrest (Sec.45)
1. Arrest without warrant by police
A police can arrest without an order or a warrant from a magistrate in the following circumstances:
- If a person has committed a cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of having committed an offence, then he can be arrested by a police officer without an order or warrant from a Magistrate.
- If a person is in possession of any implement or instrument for housebreaking without lawful justification, he can be arrested immediately.
- Any person who has been proclaimed as an offender under the Criminal Procedure Code or by the order of the State Government, then he can be arrested without a warrant.
- Any person who is in possession of the stolen property and reasonably suspected to have committed an offence with reference to such possession of the stolen property, then he may be arrested without a warrant.
- Any person who obstructs a Police officer from discharging his duty or attempts to escape from lawful custody may be arrested without a warrant.
- If a person is reasonably suspected to be a deserter from the Indian navy, Army or Air Force, he can be arrested immediately.
- Any person who is suspected to have committed an offence under any law relating to extradition can be apprehended forthwith without a warrant.
- Any person who is a released convict and has breached any rule under Sec.356(5). It says that a person can be arrested if he is a released convict and changes his residence without notice to the State Government.
- Any person whose arrest is required by another Police Officer can delegate such power to a Police Officer in charge of a station in whose jurisdiction the accused is a resident.
Any Officer in changer of a Police station may arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in Sec.109 (Security for good behaviour from suspected persons) or Sec.110 (Security for good behaviour from habitual offenders).
Even for cognizable offences, Police Officer can get a warrant form a Magistrate and then arrest the accused.
Arrest in Non-Cognizable Offences (Sec. 42):-
A person who has committed a non-cognizable offence and refused to give his name and address or gives a false name and address may be arrested without warrant.
If the true name and residence of such a person cannot be ascertained within 24 hours of arrest or the accused fails to furnish sufficient sureties within the period (24hr), then he must be produced before the nearest Magistrate having jurisdiction.
2. Arrest by a Private person (Sec. 43)
Every person (citizen) has a duty to inform the Police or nearest Magistrate, the commission of an offence. He can also arrest the offender and handover him to the Police.
Sec.43 deals with arrest by a private person and procedure to followed in respect of such arrest.
A private person can arrest:
(i) Any person, who commits a non-bailable and cognizable offence in his presence; or
(ii) Any person, who is a proclaimed offender (Sec.43).
Sec.43 runs as follows:
- 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 person or cause him to be taken in custody to the nearest police station.
- If there is reason to believe that such a person comes under the provisions of Sec.41, a police officer shall re-arrest him.
- 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 provision of Sec.42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.
He (private person) shall, without any delay makeover such person to a police officer or to the nearest police station.
Anant Prasad Roy v. Emperor [2], it was held in this case that, if a private person arrests under Sec.43 of the Code by mistake that the offence is non-bailable and cognizable, he is protected under Sec.79 I.P.C (mistake as defence).
3. Arrest by Magistrate (Sec.44)
When an offence is committed in the presence of a Magistrate (Executive or Judicial) he may arrest or order his subordinates to arrest the offender and commit him to the custody subject to the provision of bail.
He is also competent to issue a warrant for arrest any person residing within his jurisdiction.
A Magistrate arresting a person under Sec.44(1) of the Code should not try the case himself. The person so arrested by the Magistrate shall be produced within 24 hours before another Magistrate. Otherwise, the arrest becomes illegal as held in Swami Harharnand Saraswati v. The Jailer, District Jail, Banaras.[3]
4. Protection of members of armed forces from arrest (Sec.45)
Generally, no member of armed forces can arrested by the Police Officer for any offence committed in discharge of his official duties relating to the armed forces.
However with the consent of the Central Government, member of armed forces may be arrested and the general provision of arrest will apply in such cases.
Procedure of Arrest
Capture is made by a Police Officer or some other individual by a genuine touch or limiting the body of the blamed. On the off chance that the blamed has submitted himself to custody by word or activities, at that point genuine touch or imprisonment isn’t important.
A Police Officer executing a warrant may utilize power if the denounced offers opposition. In any case, on the off chance that a warrant doesn’t contain the mark of a Magistrate, at that point, no power can be utilized since the warrant isn’t legitimate.
The power utilized by the Police Officer should be sensible and not over the top. It should be only adequate to impact the capture. No Police Officer can reserve the privilege to cause the demise of the denounced. Yet, on the off chance that the charged is culpable with death or detainment forever, at that point for his capture even demise might be caused.
A ladies ought not be captured after dusk and before dawn.
Be that as it may, in the event that extraordinary conditions exist for such capture, at that point a ladies report and acquire the earlier consent of the neighbourhood First Class Judicial Magistrate and afterwards just capture after dusk and before dawn can be made.
On the off chance that the individual to be captured submits to the authority by word or move, he can be arrested. Something else, the Police Officer may contact or bind his body. In the event that he opposes or endeavours to dodge capture, the Police Officer may utilize power. He can’t be murdered except if he is accused of an offence culpable with death or detainment forever.
Roshan Beebi v. Joint Secretary to the Government of Tamil Nadu[4], it was held that the capture affected in opposition to Sec.46 Code is useless and purposeless.
Birendra Kumar Rai vs Union of India [5], it was held that to make a capture, the cop need not to cuff the individual, and it very well may be finished by expressed words likewise if the individual submits to guardianship himself.
It was held in the case of Bharosa Ramdayal vs Emperor[6], that if an individual says something to the police conceding himself of submitting an offence, he would be considered to submitting to the custody of the cop. Likewise, if the blamed goes to the police headquarters as coordinated by the cop, he has again considered having submitted to the custody. In such cases, actual contact isn’t needed.
Medha Patkar v. State[7], this is a case in MP with respect to the Sardar Sarovar Project. A few landowners and others who were influenced by this task in MP assembled out and about, yelling trademarks, requesting land for land and other restoration measures. The get-together was quiet without upsetting public request and harmony yet notwithstanding this the Police willingly volunteered to beat the protestors and capture every one of them under Section 151 of CrPC and furthermore called by the Magistrate under Section 107 of CrPC. There were ladies and youngsters too among the protestors. When the protestors didn’t present an individual bond at that point sending them to imprison, still added up to the infringement of Article 21 of the Constitution of India.
Search of Place Entered by the Person Sought to be Arrested (Sec.47)
If the charged has entered inside any open or private spot, by then the individual living in such spot should allow the Police Officer free entry to catch the accused. They should similarly offer all workplaces for a cautious request gave the Police Officer is acting under a warrant of catch. If approval is declined by the house owner or property chief, by then the internal or outer door may be torn open for the segment of the Police Officer.
Regardless, if such spot is a space in the inhabitance of a female, who as per custom doesn’t appear without trying to hide, by then the Police Officer should pull out to such female that she is at the opportunity to pull out from the spot and just after that can tear open that condominium and enter.
Section 47 of the Code of Criminal Procedure, 1973 isn’t planned to limit the forces of the police to enter the spot to be looked. In actuality, it is an arrangement convincing householders to bear the cost of the police the offices in doing their obligations, and sub-segment (2) gives that if troubles are set in the method of a Police Officer he may utilize power to acquire entrance. (Ramesh Chandra Banerjee Vs Emperor)[8].
For the pertinence of this part, it is fundamental that a Police Officer should be acting under a warrant. It is sufficient if such official has the power to capture, e. g under Section 41 (1) Clause I of the Code of Criminal Procedure, 1973.
On an examination of a few Judgments including Badru Ram and Ors. v/s. The Territory of Rajasthan[9], spinning around the ability to look as endorsed under S. 47, it is has gotten apparent that even practically speaking, the police and other researching offices have attempted to adhere to these guidelines concerning all ladies, paying little mind to the standard commitments on them. Shockingly, demonstrating whether a specific lady was banished by custom to show up openly or not, has not been a hostile issue under the steady gaze of the criminal courts up until now and there is no record to recommend that contentions may have been progressed on this angle in any issue till date.
Subsequently, it is very certain that the point of the stipulation to Section 47 of the Code of Criminal Procedure, 1973 has consistently been to ensure the private space of all ladies in the nation. Notwithstanding, the language of the stipulation proviso doesn’t really mirror this goal as it makes a differentiation between ladies who have been denied by custom to show up out in the open and all ladies by and large.
Besides, this qualification is by all accounts in inconsistency to the very plan of the Cr. P. C which awards procedural shields to all ladies the nation over, regardless of the traditions they cling to. This characterization of ladies who have been denied by custom to show up in broad daylight as a different gathering is subjective for the motivations behind this specific segment and is additionally violative of Article 14 of the Constitution of India.
Pursuit Of Offenders Into Other Jurisdictions (Sec.48)
For the purpose of arresting without warrant any person whom he is authorized to arrest, a police officer may pursue such person into place in India.
No Unnecessary Restraint (Sec. 49)
To prevent the escape of the person arrested, sufficient restraint may be used.
Right Of An Arrested Person
1. Person captured to be educated regarding grounds of capture and option to bail (Sec.50)
Each cop or other individual capturing any individual without a warrant should forthwith impart to the captured individual full specifics of the offence for which he is captured or different reason for such capture. In the event that any individual other than an individual blamed for the non-bailable offence is captured without a warrant, at that point the Police Officer should educate the individual captured that he is qualified for being delivered on bail and that he may mastermind guarantees for his benefit.
Joginder Kumar v. Territory of U.P and D.K Basu v. Territory of West Bengal[10] :
For this situation, the applicant was a ladies and was captured in the night. To help her claim, she swore a testimony however she didn’t record any oath of her family members. Her conflict was that the Police Officer who captured her didn’t bear nameplates and no notice of capture was readied. The Police denied the claim that she was captured in the night. The court held that without any supportive proof or possibly the oath of her family members, the candidate’s form that she was captured around evening time had no verification and henceforth dismissed her request to start activity against Police.
2. Obligation Of Person Making Arrest To Inform About the Arrest, Etc., to a Nominated Person: (Sec.50-A)
Every Police Officer/other person making any arrest must forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other disclosed or nominated persons.
The Police Officer must also inform the arrested person of his rights as soon as he is brought to the Police Station. An entry of the fact as to who has been informed of the arrest of such person must be made in the prescribed book kept in the Police Station.
It is the duty of the Magistrate before whom such arrested person is produced, to satisfy himself with the requirements.
3. Search Of Arrested Person (Sec.51)
In the event that any individual is captured by a Police Officer under a warrant which doesn’t give bail or under a warrant giving bail, yet the individual can’t outfit bail and if any individual is captured without a warrant, or by a private individual under warrant, the official or the private individual may look through such individual and spot in safe custody any article from the captured individual. For looking through a female denounced, the inquiry should be finished by another female carefully securing tolerability and unobtrusiveness. The Officer or any individual creation the capture can attack weapon from the captured individual and produce it in the Court or to the Officer before whom the charged is delivered.
4. Power to seizer offensive weapons (Sec.52)
The officer making an arrest may take from the person arrested any offensive weapons and deliver all weapons to the Court.
5. Medical examination of accused (Sec. 53)
A Police Officer not beneath the position of a sub-Inspector may make a demand for the clinical assessment of the individual captured. In criminal cases, where it is important in light of a legitimate concern for equity, other prevalent officials or the court concerned may likewise practice the said power. Clinical assessment may likewise be finished by utilizing sensible power if vital. The term ‘clinical assessment’ signifies to see the body of the blamed to discover the finishes paperwork for an offence. It incorporates taking blood, bloodstains, semen, swabs, sweat, hair tests and fingernail clippings, and so on
6. Examination of arrested persons by medical practitioner at the request of the arrested persons (Sec.54)
If the arrested person requests that medical examination of his body will offer evidence which would disprove the commission of any offence by him, then the Magistrate may direct him for medical examination.
A copy of the report of the medical examination of the arrested person should be furnished by the registered medical practitioner to the arrested person or the person nominated by him.
7. Identification of person arrested (Sec.54-A)
If the identification of any person arrested is considered necessary for the purpose of the investigation, then the Court may direct such person to subject himself to the identification.
8. Procedure when Police Officer deputes subordinates to arrest without warrant (Sec.55)
If an officer in charge of a Police station or any Police Officer making an investigation requires any subordinate officer to arrest a person without a warrant who can be lawfully arrested without a warrant, he should make an order in writing specifying the person, offence committed and cause for the arrest and deliver it to the officer who makes the arrest.
The substance of the order shall be notified to the person to be arrested. This power shall not override the general powers of arrest without warrant under Sec.41.
9. Other Provisions Regarding Arrest(Sec.56 to 60)
A Police Officer making a capture without warrant will take the captured individual immediately to the Magistrate or the Officer responsible for a Police Station. The Police Officer ought not to keep an individual in custody for over 24 hours barring the time fundamental for the excursion from the spot of capture to the Magistrate’s Court. Officials responsible for Police Station should answer to the District Magistrate in all instances of people are confessed to bail or something else. The captured individual will be released distinctly on his own security, or on bail or under the uncommon request of a Magistrate. In the event that an individual in legal guardianship getaway or is protected, the individual from whose custody he got away or was safeguarded may quickly capture him in any spot in India.
Conclusion
Part five of the Code of Criminal Procedure, 1973 arrangements with the capture of people. The police power has not educated a thing in the previous 140 years and appears to keep up its character of being a reckless and spoilt unit that appears to abuse their broad rights over the residents of this Republic for their very own benefit and in complete difference to the law. The equity framework is by all accounts uninformed of this issue while monitoring it through the different wrongdoing measurements introduced over and over. Actual opportunity of an individual is an unrivalled right which doesn’t appear to mean anything to these gatherings which shows an overall absence of social inner voice and prompts a further trust shortfall in the equity framework which can prompt further issues, for example, non-detailing of wrongdoings and the continuous elimination of good Samaritans. Subsequently, an enormous redesign in the schooling gave to the police power is required, equity framework needs a feeling of acknowledgement of this issue and the acquaintance of an orderly framework with keep up responsibility is needed at the earliest opportunity to hold the final drops of trust and at last please standard with the less bad powers the world over.
Article 21 of the Indian Constitution ensures individual freedoms in the terms that ” no individual will be denied of his life or individual freedom besides as indicated by the method set up by law”. Capture and detainment remove the individual freedom of people. The object of capture is to bring an individual under the steady gaze of an official courtroom and the capture adds up to hardship of individual freedom. Life and freedom is a consecrated opportunity of our purified Constitution under Article 21, yet it has been hampered by the abuse, done by the police, of the generally tremendous forces given to them by the Code of Criminal Procedure (Cr.P.C) established by the Parliament in 1973.
References:
[1] (2008) 13 SCC 305: (2008) 231 ELT 397.
[2] on 22 November, 1918, Equivalent citations: 52 Ind Cas 595, Bench: Richardson, S S Huda;
[3] 24 March, 1954, Equivalent citations: 1954 CriLJ 1317, Bench: Mukerji, Roy;
[4] Roshan Beebi v. Joint Secretary to the Government of Tamil Nadu,1984 Ce.LJ 134 (Mad.)
[5] Birendra Kumar Rai vs Union of India, 1992, Equivalent citations: 1992 CriLJ 3866
[6] Bharosa Ramdayal vs Emperor, 1941
[7] Medha Patkar v. State, 2007, Equivalent citations: 2008 CriLJ 47, 2007 (4) MPHT 219
[8] Ramesh Chandra Banerjee Vs Emperor, AIR 1914 Cal. 456
[9] Badru Ram and Ors. v/s. Territory of Rajasthan, 2006 SCC On Line Raj 764
[10] Joginder Kumar v. Territory of U.P and D.K Basu v. Territory of West Bengal, 18 December, 1996, Bench: Kuldip Singh, A.S. Anand.
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