How Arrest Is Made? Explain The Search Of Arrested Person

Arrests can be made under

  1. Cognizable offences and
  2. Non cognizable offences

Under Criminal Procedure Code, Cognizable Offence under Section 154 is defined under Section 2(c) of Criminal Procedure Code. is an offence where a police officer can arrest without a warrant and investigate without the court’s permission for serious and heinous crimes, for example: Rape, murder, kidnapping, dowry death etc. All cognizable offences are non-bailable.

Section 2(1) of Criminal Procedure Code defines Non-cognizable Offence as an offence where a warrant of arrest is mandatory, these offences normally petty, example: assault, cheating, forgery, defamation etc. Non-cognizable offences are bailable.

Procedure to be followed in cases of cognizable offences

Chapter 5 of the Code of Criminal Procedure,1973 deal with the arrest of persons under sections 41 to 60. Section 41(1) of the code of Criminal Procedure Code 1973.

Any person may be arrested by a police officer without a magistrates order in a cognizable offence which is non billable under sections 41, 42, 151 CRPC, for example, possession of stolen property or unlawful objects, a person known to be a proclaimed offender, a burglar, a murderer, person for commission of an offence under dowry death, deserter of Armed Forces of the Union, a person under extradition where he has committed an offence in India and escaped to foreign lands to evade arrest and the law in India, also an act done in foreign lands which if done in India would have been a offence, a convict who has been released and breaches the rules of law under section 5 of 356, Person can be arrested on a requisition by an officer who has ascertained that the arrest requires no warrant, person who attempts escape from custody and obstructs police officer who is executing his duty.

Committing an offence in the presence of a police officer or gives false information to a police officer in a non-cognizable offence under section 42 wherein the person arrested can be released on a bond with or without surety, If the person will have to be produced before a magistrate within 24 hours if he fails to execute the bond.

The burden of proof lies on the police officer to satisfy the court that he has reasonable ground of suspicion to arrest the accused without a warrant.

Firstly, an FIR (First information report) of the offence committed has to be given to the police, the FIR has to be signed by the informer, one copy has to be maintained by the informer and another given to the magistrate, Judicial Magistrate has to be informed of the arrest, the police needs to send a report of the investigation to the magistrate.

Within 24 hours Medical examination has to be done of an accused under section 54, and in a rape or molestation case under section 53 & 53A, females can be examined only by female medical officers.

Investigation of an arrest made in a cognizable offence can be conducted by the police officer immediately on arrest as per section 468 and an arrest warrant must be produced for the arrest within 24 hours, there is no time limit for the investigation, however, unreasonable delays can be bought to the notice of the Supreme court under Article 21 right to freedom.

Under Section 45 of CRPC members of Armed Forces cannot be arrested for anything done in discharge of their official duties except after consent of the supreme court.

Reason for the Arrest and legal rights of the person has to be informed to the person arrested under section 50(1) of CRPC also under Article 22(1) of the constitution, a person cannot be detained in custody without being informed of the grounds of the arrest nor be denied the right to consult a lawyer/advocate of his choice and to Free Legal Aid to defend himself and if his means are not sufficient to meet the expenses of a lawyer, the arrested person should be given a fair trial  ( law Commission of India, 14th Report, Vol1, pp587-600).

Acts of sedition, agitation against the authority and speeches that incite violence though cognizable offences need to adhere to the fundamental rights under the constitution of Article 19 and 22, freedom in speech and conduct and Liberty

Women cannot be arrested without the presence of a female police officer and no woman can be arrested before sunrise or after sunset, except in exceptional cases and with prior permission of the local magistrate

D.K Basu vs State of West Bengal Reported in 1997(1) SCC 416, The Hon’ble Supreme Court, in D.K. Basu Vs State of West Bengal, has in paragraph 36 laid down specific, guidelines required to be followed while making arrests.

The principles laid down by the Hon’ble Supreme Court are given hereunder:

  1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible clear identification and name tags with their designations., particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
  1. That the police officer must prepare a memo of arrest when the arrest is being made, the memo should be attested by at least one witness, who can be a member of the family of the person being arrested  or a respectable person of the locality, it also needs to be counter signed by the arrestee and must contain the time and date of arrest.
  2. A person who has been arrested, detained in police custody for interrogation should be entitled to inform a friend or a relative or a person interested in his welfare as soon as possible of the arrest and detention, place of detention, unless the attesting witness of the memo of arrest is himself a friend or relative of the arrested person.
  3. The Legal Aid organisation should notify the time, place and venue of custody of the arrested person to a friend or relative is residing in a different city, town or district and the police station of the area by telegraph within 8 to 12 hours of the arrest
  4. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
  5. An entry must be made in the diary at the place of detention regarding the arrest of the person, which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names land particulars of the police officials in whose custody the arrestee is.
  6. The arrested person can request to be examined at a place and time of his arrest and of any major, minor injuries on his or her body, must be recorded at that time. The ‘Inspection Memo’ must be signed both by the arrested person and the police officer executing the arrest, its copy should be provided to the arrested person.
  7. The arrested person should be subjected to medical examination by the trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
  8. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.
  9. The arrested person may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
  10. A police control room should be provided at all district and State headquarters where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer who has executed the arrest within 12 hours and details of the arrest should be displayed on a conspicuous notice board of the police control room

Persons arrested should be informed of the Right to Bail under Section 50(2) of CRPC and particularly when the arrest was done without a warrant as per Article 22(1) of the constitution of India

An arrested person must be produced before a judicial magistrate within 24 hours of the arrest cannot be detained for longer (Khatri V State of Bihar AIR 1983 SC 378 Section 57)

The constitution gives equal rights to an accused person under the Code of criminal procedure, 1973 of being heard fairly and a chance to defend himself. A person during a police investigation cannot be cannot be compelled to sign any document or reduce to writing his statement under the provisions of section 162. The statements can be recorded in writing only during the process of court under section 145 of the Indian Evidence Act.

Similarly, upholding a similar proposition, the protection against self-incrimination has been provided as a special fundamental right, under Part III [Under Article 20(3)] of the Constitution of India. It provides that no person who is accused of an offence can be compelled to be a witness against himself.

Search of arrested persons section 51

As per Article 20(3) of the constitution of India, though an accused cannot be compelled to produce any evidence against him, evidences can be seized under process of law from the custody or person accused by issue of a search warrant.

An officer authorised can without a search warrant under section 165 investigate search and seize such objects which he strongly believes were used in the crime and make a report in writing of the reasons for his belief

Section 165(3) a police officer may in writing require any officer subordinate to him to make the search. The copies made by the police officer undertaking search shall be sent to the nearest Magistrate empowered to take cognizance of the offense.

A search warrant can be issued by a Court of the Code of Criminal Procedure 1973

Where the court believes that a person who has been summoned under Section 91 or 92(1) under an order of requisition will not produce the documents or things as required by the court section 93(1)(a) and that such document or thing is in possession of any person section 93(1)(b), Where the court considers that the purposes of any inquiry, trial or other proceedings will be served by general search or inspection.

A search warrant is issued by an authorised judge or Magistrate of a court to a police officer or any other person authorising them to conduct a search upon a person, vehicle, location of a crime scene and confiscate such material, things that are used in the crime or believed to be stolen property, or objectionable articles under section 94. Which may include counterfeit coin, pieces of metal made in contravention of Metal Tokens Act,1889, counterfeit currency or stamps, forged documents, false seals, obscene seals or objects referred to in  section 292  IPC, 1860 and instruments or materials used for the production of any of such article, but does not include any such article kept bona fide for religious purposes, Any sculpture, engraving under the Ancient Monu­ments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or  any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose

The state government may order forfeiture of any book, material, publication, document or newspaper which contains any matter that is punishable under section 124A, 153A, 153B, 292,293 or 295A of Indian Penal code 1860 and a magistrate may issue a search warrant and authorise a police officer to enter and search the premises, copies of such person under suspicion, section 95

The magistrate may order search of a person who is wrongfully confined of an offence under section 97 of the Code of Criminal Procedure, 1973

An abducted woman or child below the age of 18 should be set free and send them to safety of their rightful guardian, parent or husband section 98

Under section 103 of CRPC magistrate may also order search in its presence of a location or matter for which the magistrate could also issue a search warrant.

Under Section 166, a police officer can search the local limits of another jurisdiction or police station out of its own local limits and send a notice of such search to the police officer and magistrate of that other jurisdiction

Under section 153 a police officer may order the search of weights and measures where he believes are false and provide such report to the magistrate of that jurisdiction.

Under the Central board of Indirect Taxes and Customs

Chapter XIII section 100 an officer can search a person Carrying prohibited goods liable to be confiscated is about to leave or board a foreign going aircraft, vessel or enter India.

Section 101 if any person suspected by the commissioner of customs to be holding material liable to be confiscated like gold, diamonds, watches, manufactures of gold and diamonds,

Persons to be searched may be required to be taken before gazetted officer or magistrate and such search will have to be conducted in the presence of witnesses

Section 105 power to search premises – any goods documents believed to be liable to be confiscated, stolen property,

Section 106 power to stop and search conveyances- where an officer has power to believe that any aircraft, vehicle or animal in India or any vessel within the Indian waters are being smuggled or about to be or used in the activity of smuggling, break open any doors, package, seal and stop by lawful means any such vehicle believed to be carrying on such activities.

This Article is authored by Puja Raj, Student at National Law school University.

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