Penning of a law student: BROADLY PERUSING ARREST UNDER CRIMINAL LAW

INTRODUCTION

Day in, day out we hear incidents of someone or the other being arrested for the commission of an offence or the violation of any law. However, the term ‘arrest’ has not been defined in any of the Indian laws., it simply connotes to mean “legally depriving a person of his or her liberty”. Various judicial pronouncements on the matter have also explained as to what constitutes ‘arrest’. In, State of Haryana & Ors. v. Dinesh Kumar[3], the Supreme Court observed, “The expression arrest has neither been defined in the Code of Criminal Procedure nor in the Indian Penal Code or any other enactment dealing with criminal offences. The only indication as to what would constitute arrest may perhaps be found in Section 46 of the Code.” The word ‘arrest’ is derived from the French word ‘arreter’ meaning ‘to stop or stay’ and signifies a restraint of the person. According to the Shorter Oxford English Dictionary, arrest means the apprehending of one’s person, in order to be forthcoming to answer an alleged or suspected crime. According to Bouvier’s Law Dictionary, ‘arrest’ means to deprive a person of his liberty by legal authority.[4]

In the case of Roshan Beevi & Ors. v. Joint Secretary to Government of Tamil Nadu[5], Hon’ble Justice Pandian observed:

“The word ‘arrest’, when used in its ordinary and natural sense, means the apprehension or restraint or the restraint or the deprivation of one’s personal liberty. The question of whether the person is under arrest or not depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority accompanied by a seizure or detention of the person in the manner known to the law, which is so understood by the person arrested.”

TYPES OF ARREST

1. An arrest made in pursuance of a warrant issued by a Magistrate.
2. An arrest made without such a warrant but in accordance with some legal provision justifying that arrest.

ARREST UNDER THE CODE OF CRIMINAL PROCEDURE,1973 (Cr.P.C.)

Chapter V(Sections 41 to 60) in the Code of Criminal Procedure, 1973(Cr.P.C) contains the provisions relating to ‘arrest of persons’.

Who can arrest under the Code?

The first and foremost question to be addressed is as to who all have been enabled by the Code to make an arrest? The Code, for that purpose, provides that arrest can be made by any police officer(Section 41), by a Magistrate (Section 44) and even by a private person(Section 43).[6]

Arrest by a Police Officer

As per the Code, any police officer can make an arrest in two situations:

• Where the person to be arrested has committed a cognizable offence. (Section 41 of Cr.P.C.)
• Where the person to be arrested has committed an offence of non-cognizable nature. (Section 42)

Arrest made under Section 41

Section 41 of the Code provides for situations when a police officer may arrest any person without a warrant or an order from a Magistrate. It empowers a police officer to make an arrest in absence of an order by a Magistrate or warrant and in pursuance of this power a police officer may arrest any person (a) who commits a cognizable offence in presence of a police officer, or (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than 7 years or which may extend to seven years with or without fine. This power of the police officer, however, is subject to the following conditions:

(i) that the police officer has a reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence.

(ii) that the police officer is satisfied that such an arrest is necessary so as to prevent such person from committing any further offence, or for proper investigation of the offence, or to prevent such person from causing the disappearance or tampering of the evidence of the offence in any manner, or to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to prevent him from disclosing such facts to the Court or to the police officer, or as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer while making such arrest shall record his reasons in writing.

The proviso to this sub-section provides that in all cases where the arrest of a person is not required under this sub-section, the police officer shall record in writing the reasons for not making the arrest.

(b) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with a death sentence and on the basis that information received, the police officer has a reason to believe that such a person has committed the said offence; or

(c) who has been proclaimed as an offender either under this Code or by any order of the State; or

(d) is reasonably suspected to be in possession of stolen property or is reasonably suspected of having committed an offence with reference to such thing; or

(e) who obstructs any police officer in the lawful execution of his duty or has escaped or attempts to escape from lawful custody; or

(f) who is reasonably suspected to be a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists against him of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who is a released convict, commits a breach of any rule made under Section 356 of this Code; or

(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

The proviso to Section 41 further empowers a police officer to arrest any person against whom a complaint has been made or credible information has been received or a reasonable suspicion exists of his having concerned in a non-cognizable offence but only under a warrant or order of a Magistrate.

A police officer is also empowered under section 42 of Cr.PC. 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. This is subject to the provisions of Section 42 which empowers a police officer to make an arrest if any person having committed a non-cognizable offence refuses to give his name and residence or gives false information about his name and residence upon demand of such officer. This is done so that his name or residence may be ascertained.

Arrest by Private Person

Section 43 of the Code empowers any private person to arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence or even a proclaimed offender.

Arrest by Magistrate

Section 44(1) empowers a Magistrate, whether Executive or Judicial to make an arrest himself or order any person to arrest an offender in case an offence is committed by the offender in the presence of that Magistrate within his local jurisdiction.

Procedure to be followed in cases of Arrest and Duties of the person making an arrest

(i) In case of an arrest made by a police officer

Section 41B is the relevant provision for this. It states that every police officer while making an arrest shall bear an accurate, visible and clear identification of his name so as to facilitate easy identification; prepare a memorandum of arrest which shall be attested by at least one witness, who is a member of the family of the person arrested or is a respectable member of the locality where the arrest is made. Further, the memorandum shall be countersigned by the person arrested. Also, it shall be the duty of the police officer to inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.

Section 55 further provides for the procedure when a police officer deputes subordinate to arrest without warrant. Section 55(1), in this regard, states that when an officer in charge of a police station or any police officer making an investigation under Chapter XII requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made and the officer so required shall, before making the arrest, notify to the person to be arrested the substance of the order and, if so required by such person, shall show him the order. sub-section (2) states that nothing in sub-section (1) shall affect the power of a police officer to arrest a person under section 41.

(ii) In case of an arrest made by a private person.

As per Section 43 the private person making without unnecessary delay shall makeover or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station. Clause (2) further provides that if there is reason to believe that such a person comes under the provisions of section 41, a police officer shall re-arrest him. Clause (3) states that 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 provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.

How should such an arrest be made?

Section 46 states that so long as the arrested person submits to custody by word or action, the police officer or other person while making an arrest shall not actually touch or confine the body of the person to be arrested. The proviso to sub-section (1) further states that where a woman is to be arrested unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.

If such a person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other people may use all means necessary to effect the arrest. However, nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

Sub-section(4) states save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

Rights of an Arrested Person

The relevant provisions enumerated in the Code as regards the rights of an arrested person are:

Section 41D. Right of arrested person to meet an advocate of his choice during interrogation.—When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation.]

Section 50. A person arrested to be informed of grounds of arrest and of right to bail.—(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. (2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

Section 55A. Health and safety of an arrested person.—It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused.

Section 56. A person arrested to be taken before Magistrate or officer in charge of police station.—A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.

Section 57. A person arrested not to be detained more than twenty-four hours.—No police officer shall detain in custody a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.

These rights are inherent in Articles 21 and 22 of the Indian Constitution and are basic fundamental rights.

The Apex court in Smt. Nandini Sathpathy v. P.L. Dani[7], quoting Lewis Mayors, stated:

“To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft.”

Duties of Person making an arrest

The relevant provision in this regard is Section 50A which states that every police officer or other person making any arrest under this Code shall 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 persons as may be disclosed or nominated by the arrested person for the purpose of giving such information. Further, the police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station. Clause (3) provides that an entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government. Lastly, it shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person.

LANDMARK JUDGEMENTS

● In Birendra Kumar Rai v. Union of India & Ors.[8], it was held that in order to make an arrest the police officer need not handcuff the person to be arrested. An arrest can be completed even by spoken words if the person submits to custody himself.

● In the case of Harmohanlal v. Emperor[9], the court observed that unless the person to be arrested is actually touched and contacted with the intention to take him into custody, mere declaration by the police that the person is under arrest will not result in an actual arrest of that person.

● In Harikishan v. State of Maharashtra[10], the Apex Court held that the person arrested must be communicated the grounds of his arrest in the language that he understands otherwise it would amount to insufficient compliance with the constitutional requirement.

● In Khatri (II) v. State of Bihar[11], the Supreme Court has strongly urged the State and its police to ensure that the constitutional and legal requirement of presenting an arrested person before the nearest Magistrate within 24 hours of his arrest be strictly met and that it is a constitutional mandate to provide free legal aid to an indigent accused. In case a police officer fails to present the arrested person before the nearest Magistrate within 24 hours of his arrest, the police officer shall be guilty of wrongful detention. The same was held in Sharifabai v. Abdul Razak.[12]

● In Kultej Singh v. Circle Inspector of Police[13], the Karnataka High Court held that keeping a person in custody in the police station or confining the movement of the person in the precincts of the police station amounts to arrest of the person.

● The Supreme Court Arnesh Kumar v. State of Bihar and Anr.[14] held:

“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.”

CONCLUSION

While it cannot be debated that the Code provides huge discretionary powers to the police officers in matters of arrest and also enables private individuals to make an arrest in certain situations. However, such power to arrest is not unfettered and is subject to the rights of the arrested person which is guaranteed by Articles 21 and 22 of the Indian Constitution. In this regard, the Apex Court has very well dealt with the issue of custodial torture and custodial death in the case of Shri D.K. Basu v. State of West Bengal[15] and laid down guidelines to be followed while making an arrest.

[Author Kairvi Shashi is a 3rd-year student of BBA LLB, Vivekananda Institute of Professional Studies(GGSIPU), New Delhi]

[1] Soni, P., 2018. Law Relating to Arrest – Everything You need to learn about Arrest. Law Times Journal, [online] Available at <http://lawtimesjournal.in/law-relating-to-arrest/> [Accessed 10 December 2020].

[2] 1994 SCC (4) 260: 1994 AIR 1349.

[3] (2008) 3 SCC 222

[4] Yadav, K., 2019. Arrest and Custody. Indian Legal Solution, [online] Available at: <https://indianlegalsolution.com/arrest-and-custody/> [Accessed 10 December 2020].

[5] 1984 (15) ELT 289 Mad

[6] The Code of Criminal Procedure,1973, No.2, Acts of Parliament, 1974(India).

[7] AIR 1978 SC 1025 at page 1032

[8] 1992 CriLJ 3866.

[9] (1929) 30 Cri. L.J 128.

[10] (1962) 64 BOMLR 522.

[11] (1981) 1 SCC 627.

[12] AIR 1961 Bom 42.

[13] ILR 1991 KAR 3198:1991 (4) KarLJ 358.

[14] CRIMINAL APPEAL NO. 1277 OF 2014.

[15] (1997) 1 SCC 416.