Provisions of Arrest and Rights of an Arrested Person
Aug. 12, 2020 • Madri Chandak
Profile of the Author: Abhishek Tanwar is a student of Law Centre-1, Faculty of Law, Delhi University
Introduction
The provisions of CrPC do not define an arrest.[1] An arrest is an act of apprehending and taking a person into custody because the person has been suspected of or observed committing a crime.
Arrest, according to the legal dictionary by Farlex:
“A seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge.”
The provisions of arrest are mentioned in Chapter V of Code of Criminal Procedure, 1973 from Section (41 to 60A)
Types of Arrest
- Arrest without warrant
- Arrest with warrant
In the case of a cognizable offence, a person can be arrested without a warrant, while in the case of non-cognizable offence, a person cannot be arrest without a warrant. But there are certain specific circumstances in which a person can be arrested without a warrant even in case of a non-cognizable offence. For example:
Section 42: A police officer can arrest the person who is accused or commits any non-cognizable offence gives his name and residents which such officer has a reason to believe to be false.
Another example is under Section 44, where the word ‘any offence’ has been used. It means it covers all types of offences, whether cognizable or non-cognizable offences.
Procedure of Arrest
Under Section 46 of CrPC, 1973:-
-An arrest can be made by contacting or touching the body of a person.
-If the person resists the arrest, the police are authorized to use force and other means to arrest the person.
-The force and means used must be reasonable and well-intentioned and must not be intended to cause serious injury.
In the case of women, only women officer has a right to arrest. No women can be arrested after sunset and before sunrise except in exceptional circumstances where a women officer must first write a report and get the prior permission of the judicial magistrate.
Who can Arrest ?
Under Section 41 of CrPC:- Any police officer without an order of from a magistrate and warrant, may arrest any person:
- Who commits the cognizable offence in the presence of a police officer,
- Against whom a reasonable complaint has been filed and the police officer has reason to believe based on such complaint that such person has committed the said offence
Under Section 43 of CrPC:- Any private person may arrest or caused to be arrested any person who commits a cognizable offence in his presence without any delay shall hand over the person to the police officer.
Under Section 44 of CrPC:- When any offence is committed in the presence of a magistrate, whether executive or judicial within his local jurisdiction, he may himself arrest or order any person to arrest the offender.
Rights of an arrested person
Right to know the ground of arrest
Section 50(1) of CrPC says that the grounds of arrest must be communicated to the person arrested in a language that he understands. He must be notified of the specific offence for which he is being arrested.
Right to information of bail
Once a person is arrested, he can be released from police custody only after taking bail or an appearance bond. The arrested person must be informed of the right to be released on bail under Section 50(2).
Right to consult a lawyer
The arrested person has the right to consult and be defended by a legal practitioner of his choice. This is the fundamental right under Article 22 of the constitution. The arrested person is allowed to meet his lawyer during interrogation by the police, also mentioned under Section 41(D) of CrPC.
Right to free legal aid
The right to free legal aid is provided by the Constitution of India under Article 39(A). It is the right available to poor and needy persons. The legal service authorities have been established to provide this right. The arrested person must be informed of this right.
No person shall be deprived of his life or personal liberty except according to the procedure established by law. [2] Article 21 of the Indian Constitution provides few sparkles of hope to the lives of arrested, undertrials and convicts. The treatment of such people has to be humane and in the manner prescribed by law. In Maneka Gandhi v. Union of India [3], the Supreme Court held that State and for that matter, the police as its principal law enforcing agency have the undoubted duty to bring offenders to book. Even so, the law and procedure adopted by the State for achieving this laudable social objective have to conform to civilised standards. The procedure adopted by the State must, therefore, be just, fair and reasonable.
Right to remain silent
The ‘right to silence’ is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court. [4]
Conclusion
There are many provisions of arrest mentioned in CrPC,1973. The police authority ensures that the arrests must be just and fair. They must not be oppressive or arbitrary, An arrest and detention in a police lock-up of a person on a fake complaint can cause incalculable harm to the reputation and self-esteem of a person. So police ensure speedy trials and investigation and confined the guilty and free the innocent.
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FAQs
Q. What is the difference between arrest and detention?
Ans. The main difference between detention and arrest is whether a person is charged with a crime or not.
In case of a person being detained, he is not formally accused of committing a crime but is simply restricted and kept in police custody on a reasonable suspicion. During the time in custody, he is questioned or investigated by the police authorities. After the police questioning, the person detained would be released.
The situation would be entirely different if a person was arrested. A person can only be arrested if he is charged for a crime and once he is arrested and has to be produced before a magistrate within the next 24 hours.
References
[1] https://en.wikipedia.org/wiki/Arrest
[3] AIR 1978 SC 597