INTRODUCTION
The issue of preventive arrest has always been an issue of great debate. The preventive arrest is done in order to stop the person from committing any kind of cognizable offence in future. The main purpose behind criminal law is to protect society from the criminals and lawbreakers. The criminal law consists of both substantive law and procedural law. The substantive law describes the right, duties, obligations and actions that can be enforced by law. On the other hand, the procedural law describes the procedure which needs to be followed in order to enforce the rights and obligations. In India the Indian Penal Code, 1860 is the substantive law and the procedural law is the Code of Criminal Procedure, 1973.
All the aspects related to the procedure of arrest are mentioned in the Code of Criminal procedure. Chapter V in the code of Criminal Procedure, 1973 deals with the arrest of the person. Sections 41-60 are related to the procedure of arrest.
WHO IS AUTHORIZED TO ARREST?
Code of Criminal procedure empowers 3 people to carry out the process of arrest. These people are:-
- A Police officer
- Magistrate
- Any private person
MEANING OF ARREST
In a vague manner, everyone knows that a person who does anything against the law is arrested. Arrest can be defined as, “a seizure or forcible restraint, an exercise of power to deprive a person of his or her liberty.” In a criminal matter, the arrest of the person is necessary in order to prevent him from escaping and to present the accused before the magistrate. After an arrest, a person’s liberty is completely curtailed. But in every case where a person’s freedom is restraint does not amount to arrest. The restraint of liberty should be done in a legal manner by a competent authority with the requisite skills.
The main reason behind the arrest of a person is to present him before the magistrate for the proper administration of law. It also serves as an alert for society by making them aware of the accused.
CAN A PERSON BE ARRESTED WITHOUT A WARRANT?
Yes, a person can be arrested by a police officer or a private person without a warrant issued by the court. Being a little precise the police officers can arrest a person without warrant under specific conditions. Section 41 of the CrPC deals with the arrest of a person without an arrest warrant. Section 41 states, “(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person— 1[(a) who commits, in the presence of a police officer, a cognizable offence; (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 seven years or which may extend to seven years whether with or without fine.”
A person who is concerned with serious offences like murder, rape and theft can be arrested without a warrant. These kinds of serious offences are known as cognizable offences. As per the first schedule of the Cr.P.C., the police can arrest a person without a warrant who is connected to any kind of cognizable offence. Certain circumstances when a person can be arrested without warrant:-
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- A person who is a proclaimed offender under any section of CrPC or any law in force can be arrested without a warrant.
- Anyone who obstructs the police officer from performing his duty or who attempts or has escaped from the police custody.
- If a person is found in possession of the house breaking weapon without any kind of lawful excuse then that person can be arrested by the police without a warrant.
- A person on whom there is a reasonable suspicion that he is a deserter of the armed forces of the union.
- If any person who has been released as a convict commits a breach of any rule under sub-section 5 of section 356.
- “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, 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.”
PROCEDURE OF ARREST
In arresting a person there is a procedure which needs to be followed. Section 46 of the CrPC gives a detailed study of the mode of the arrest. It should be clearly understood that the person arrested should be handcuffed only after obtaining permission from the magistrate. Section 46 of CrPC states:
(1)“In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action
(2) If such a person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to affect the arrest.
(3) 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.”
CASE LAW
In the case D.K.Basu v State of West Bengal, the court laid down certain steps and guidelines which need to be strictly followed by the police official. These guidelines were issued in response to an increase in custodial deaths and the torture is done in custody. It was observed that death in police custody is one of the worst crimes in a civilized society. The guidelines were:
- As per section 50 of CrPC and with respect to article 21 of the Indian constitution, any person who is arrested has a right to know the grounds of his arrest. The officer in charge during the term under arrest has a duty to inform the offender whether his offence is bailable or non-bailable. The difference between a bailable offence and a non bailable offence is that in case of former the person has the right to be granted bail and in the latter case a bail can be granted only at the discretion of the court.
- As per section 41D and section 303 of Cr.P.C., a person has a right to consult his lawyer during interrogation.
- As per section 50 of CrPC any person who is arrested has the right to talk to his family, friends or relatives whoever he wants.
- Under article 22 of the Indian constitution, the person arrested has a right to be present before the magistrate within 24 hours in order to avoid illegal arrest.
- The person who has been arrested has a right to remain silent as per article 20(3) of the Indian constitution. The reason behind this fundamental right is to prevent the police from extracting anything self-incriminating against the person arrested through force.
This article is authored by Alok Dubey, First-Year, B.A. LL.B (Hons.) student at Symbiosis Law School, Pune.
Also Read – What Is The Procedure Of Arrest?
