Arrest
Arrest is the word derived from the word arret means stop. Arrest means preventing a person from having free movement by use of authority and curtailing his right to freedom. The need of arrest is for the compliance of order, prevention from committing further crime; reducing chances of threat and tampering of evidence, and to ensure the presence of the person in the court of law. The arrest is basically of two types, which are arrest with warrant and arrest without a warrant. Arrest without warrant is in the case of cognizable offences or when the offence is committed in the presence of the police officer and the person refused to give his name and residence or give false name or residence.
Laws of arrest
Section 41-When police may arrest without warrant.
a)who has been concerned in a cognizable offence.
b)Person in possession of implement of house breaking.
c)Person who is proclaimed offender.
d)In possession of stolen property.
e)Who obstructs a police officer from doing his duty or escapes from a lawful custody.
f)who is reasonably suspected of being a deserter.
g)Against whom a reasonable complaint has been made.
h)When a released convict commits a breach of rule.
i)For whose arrest any requisition has been received.
Section 42– arrest on refusal to give name and residence- a person can be arrested in case of non-cognizable offense when he commits that offense in presence of a police officer and refuses to give name and residence then he can be arrested but only for ascertaining the name and residence only.
For arrest, the police officer shall actually touch or confine the body of the person to effect the arrest under section 46(1). The police officer can use all means necessary to effect the arrest but not cause the death of the person who is not accused of an offence punishable with death or life imprisonment.
According to section 47 any police officer may break open any outer or inner door or below the window of any place in order to liberate himself or any other person.
Section 48 says that a police officer may for the purpose of arresting pursue such a person into any place in india.
Section 50 in corresponds to Article 22 (1) that a person arrested must be informed of the ground of arrest and also the provision of bail if arrested under a bailable offence.
Police office shall follow
- may search the arrested person
- may place in custody all the belongings
- if any article is seized then reciept must be given under section 51
section 51(2) says when a female needs to be searched then it shall be done by a female police officer with strict regard to her decency.
Who can arrest
- police officer without warrant under Section 41
- police officer with warrant under section 72 to 74
- under written order of officer in charge under section 55 and 157
- a superior officer under section 36
- military officer under section 130 and 131
- Any private individual may arrest a person only when the person is a proclaimed offender and the person commits a non-bailable offence and cognizable offences in his presence (sec. 43).
Any magistrate (whether Executive or judicial) may arrest a person without a warrant (sec. 44).
Rights of an Arrested Person
Article 21 of our constitution provides “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The procedure contemplated by this article must be ‘right, just and fair’ and not arbitrary, fanciful or oppressive. The arrest should not only be legal but justified also.
In non- cognizable cases ,arrests are made with a warrant and the person going to be arrested has a right to see the warrant under Sec. 75 of crpc. Warrant of arrest should fulfill certain requirements such as it should be in writing , signed by the presiding officer , should have a seal of court , Name and address of the accused and offence under which arrest is made.
Criminal law is to be applied prospectively not retrospectively.
No penalty greater than the penalty in force at that time can be inflicted
No person shall be punished for the same offence twice (Double Jeopardy)
Rule against self-incrimination, cannot force for witness against himself.
No person shall be deprived of his life and personal liberty except under procedure established by law.
Under sec. 41 , police have the power to arrest a person without warrant as prompt and immediate arrest is needed , no time to approach a magistrate and obtain a warrant for example in cases where serious crime has been perpetrated by a dangerous person or where chances of that person absconding unless immediately arrested.
no person shall be denied the right to consult and to be defended by a legal practitioner under article 22(2) and also should be produced before the nearest magistrate within 24 hours.
Right to free legal aid and it is duty of state
DK Basu vs State of West Bengal
The apex court in this case laid down guidelines (as preventive measure) that needs to be followed in case of arrest or detention. Some of the recent amendment made in the code codifies some of the SC guidelines regarding arrest of a person like amendments to sec. 41 as section 41 A(Notice for appearance), 41B( Procedure of arrest and duties of officer making arrest), 41C(control room at district), 41D(Right to arrested person to meet an advocate of his choice during interrogation) section 50A (obligation of person making arrest to inform about the arrest, etc., to nominated person), Right to arrested person to get medically examined,etc. the Court directed that these directions should be widely circulated to create awareness amongst the people.
The court also held that the diary should be maintained and also laid guidelines for the Inspection memo at the stations which needs to be signed by both arrestee and the police officer.
Arnesh Kumar vs State of bihar
In this case the SC laid that arrest should not be made only on the basis of non bailable and cognizable offence but it should be reasonable.
The court also gave directions to the Government to provide a checklist of conditions of section 41 and it should be forwarded to the magistrate.
Notice of appearance should be served within 2 weeks from institution of the case
NHRC Guidelines
As far possible force should be avoided and if needed minimum force should be used. Dignity of the arrested person should be protected. In the case of Raavikant S Patil, public display of the arrested person is prohibited. The respect and dignity should be taken into consideration while making a search. Also women should not be arrested after sunset and before sunrise as also provided in CrPC.
Search
Searches, personal and house are very important for investigation. Police are empowered to conduct searches under various provisions of CrPC. Personal searches are done at the time of arrest while house searches can be one prior to after arrest.
Powers of Search
Section 165 officer in charge or IO can have reasonable grounds that anything necessary for the purpose of investigation can be found at the place of limits of PS may search that place. Before making a search, must record in writing the grounds of his belief. If he is not able to search in person can give in writing to another subordinate officer and the subordinate may do the same. Copy of these records shall be sent to the nearest magistrate for cognizance and also provide to the person free of cost, on application.
When the search is to be made in the jurisdiction of another PS then an officer in charge of a PS making an investigation may require the officer in charge of the former PS to make a search or cause search to be made under section 166(1).
But when there is a reason to believe that delay occasioned by such procedure might result in evidence being concealed or destroyed, he can search by himself.
Procedure for search
At least two respectable witnesses of the locality shall be asked to be present at search and a list of things seized should be signed by the witnesses. The occupant or his representative shall also be allowed a copy of the search list to be provided to him. Before the search begins the police officer and the witnesses should be searched so that no suspicion of extraneousness is planted.
Section 100 provides the right to free ingress in case of c;ose premises on demand and on production of warrant of search by the police officer. It also ensures fair and square. The decency of women should be maintained while making the search.
Whenever any person is arrested and not released on bail then thorough search of clothes etc and a list of things to be made. The personal articles should be kept safe in malkhana and entries made in registers.
If there are any incriminating articles which might be necessary for investigation, they should be separated and proper procedure to be followed. Other property to be returned to kith or kin when remanded to custody.
Section 541 when any property regarding any offence is produced before any criminal court during any inquiry or trial the court may make such order as it thinks fit for proper custody of such property.this section also provides for the interim custody of the property. They should be kept locked in proper manner under safeguards.
Seizures
Seizures refers to the collection of evidence by law enforcement officials and to the arrest of the person.
Seizure is necessary exercise in ongoing pursuit of criminals.
power of police officer to seize certain property under section 102 of the Code of Criminal Procedure, 1973.
(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.
He shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.
The property to be sent to the court without delay within reasonable time. The seizure of livestock by police in criminal cases shall be reported to the magistrate for orders under section 457 CrPc. Before entering into any premises for search or seizure shall record in writing reasons for the same.
Immovable property like lands, houses, mountains, rivers, roads, streets and similar properties cannot be seized by a police officer under section 102 of the Code, nor the Magistrate pass any order under section 451 of the Code in respect of such properties.
where any Court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub- section (1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or
(b) where such document or thing is not known to the Court to be the possession of any person, or
(c) where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection, it may issue a search- warrant.
Case Laws
Jogindra Kumar Vs State of UP
- No arrest can be made because it is lawful to do so.
- The power is one thing and justification for the same is another.
- Police officer must be able to justify their acts and not on mere complaints.
- It causes irreparable harm to the reputation and self-esteem of the person.
- Reasonable belief to be there in the mind of police officerNilabati Behera v state of Orissa
- Using any form of torture for extracting information is violation of Article 21
- Award of compensation for established infringement of indefeasible rights guaranteed under article 21 is remedy available in public law since the purpose of public law.Sheela Barse vs state of maharashtra
- Women accused to be kept in separate lock ups from males.
- Female accused to be kept in the police lock ups that are in the good localities of the city.
- Interrogation of females to be done in the presence of the female officers or constables.
RD Upadhyaya vs State of AP - Children of women prisoners can be kept in jails with mothers till the age of 6
- Birth certificate of a child born in jail to mention only district and not place.
- Nurseries for the children should be outside the premises of the jail and not inside the prison.
Sunil Batra case
- No person to be kept under solitary confinement means without access to the outside world but can be kept in specific barracks.
- There is duty on district magistrates to inspect the jails and they should hear representations from prisoners.
- Magistrates should keep a grievance box in each ward to which free access shall be afforded to every inmate.
- It should be kept locked and sealed by him and take proper actions accordingly.
Citizens for democracy vs state of Assam
- Handcuffing is violative of article 21. Only permitted with permission of the magistrate.
A.R. Antulay vs R S Nayak held that under article 21 speedy trial is also a right.
In Khatri vs State of Bihar held that legal aid is a fundamental right under article 21.
About author –
This article is authored by Vineet Tayal , B.A., LL.B. (Hons.) Institute of Law, Nirma University, Ahmedabad.
