Police Procedure For Arresting Someone In India

Introduction

Arrest is a term we hear a lot in our daily lives. Typically, we observe someone being arrested for doing or having done something illegal. When it comes to criminal law, arrest is a vital instrument for bringing an accused to court and preventing him from running away. As a consequence, after an arrest, the arrester has authority over a person’s liberty. This is the primary reason for codifying the arrest procedure so that police personnel and others cannot harass the general public.

The Code of Criminal Procedure regulates the procedural aspects of an arrest. It details the entire procedure of apprehending someone who has committed a crime. The arrest of a person is dealt with in Chapter V of the Code of Criminal Procedure, 1973, from Section 41 to Section 60.

It is not only the Police Officer who can make the arrest. Other than a police officer, an arrest can be made by a magistrate as well as a private person but the arrest must follow the procedure outlined in Cr. P.C. In this article, we are dealing only with the “Police Procedure for arresting someone in India”.

Meaning Of Arrest

The term “arrest” is not defined in the Code of Criminal Procedure or any other substantive or procedural laws. The phrase arrest signifies the apprehension, constraint, or deprivation of one’s personal liberty when used in its ordinary and natural sense.[1] The term “arrest” means to retain a person in lawful custody, which can be authorised by a warrant, crime, or statute.[2]

In simple terms, it refers to the denial of a person’s liberty by legal power, or at least the appearance of legal authority. It is important to remember that not every compulsion or physical restriction constitutes an arrest; but, when the restraint is entire and the deprivation of liberty is complete, it is an arrest.

The Supreme Court defined arrest in R.R. Chari v. State of Uttar Pradesh[3] as the act of being brought into custody to be officially charged with a crime. The court stated that it means the seizure of a person in a constitutional sense. In State of Punjab v. Ajaib Singh[4] the court explained that arrest is the type of physical constraint which is placed on an abducted individual in the course of retrieving and putting that person into custody not necessarily with any allegation or accusation of any actual or suspected commission of the crime.

The main aim behind arresting a person in criminal law is to secure the administration of law and to prevent the society from any further danger from such person as well as to secure the attendance of the person at trial. As stated above, three types of people are authorised to arrest a person, following the procedure laid down in the Code. A Police Officer can arrest a person with warrant as well as without warrant.

Arrest without Warrant

Many a times, such extreme situations may arise where there is no time to take warrant before arresting a person and in such circumstances a person may require to be arrested without a warrant if there is a suspicion that such person has committed a serious (cognizable) offence. Sometimes, the arrest of a person by the police officer can also be made in less serious (non-cognizable) offences as well, when there is need to ascertain the name and address of the offender perpetrating the crime or to prevent the commission of cognizable offence.[5] It can also be done by Police officers to discharge their duties effectively.  Section 41 and 42 of Cr. P. C. has conferred the police officers with wide powers to arrest a person without warrant under certain circumstances. These are:

  1. Person involved in any criminal offense, including murder, rape, kidnapping, theft, and so on; or
  2. in possession of any housebreaking weapon without a legal cause; or
  3. proclaimed a criminal under the CrPC or by order of the State Government; or
  4. in possession of stolen goods; or
  5. obstructs a police officer who is performing his duties or who has escaped or attempted to flee from lawful custody; or
  6. reasonable suspicion of being a deserter from any of the Union’s Armed Forces; or
  7. concerned in any legislation relating to extradition or detention; or
  8. who, as a released criminal, violates any regulation set under sub-section (5) of Section 356 CrPC; or
  9. A requisition from another police officer has been received, stating the person to be detained, as well as the offense and other reason for the arrest of the person.

Under Section 42 of the Code, a person can be arrested, if the person denies to provide correct name and address, to the police officer or the officer believes that the information provided by such person is incorrect.

According to Section 154 of the CrPC, if a police officer receives any information relating to the commission of a cognizable offense, it must be reduced to writing and read over to the informant if given orally, or written and signed by the informant if given in writing, and the information must be entered the book of officer in form prescribed.

Arrest with Warrant

If a person commits an offense in which arrest cannot be made without a warrant, a warrant must be issued. Without a warrant, the police officers are unable to make such an arrest. The warrant is issued, on behalf of the state, by a Judge or a Magistrate. A warrant for arrest permits the police officer or an individual to detain or arrest a person as well as to capture or seizure of their possessions.

A person is arrested without a warrant, according to Section 41(1) of the CrPC, 1973, under certain conditions. According to Section 41(2) of the CrPC, 1973 a person cannot be arrested without a warrant and an order of the magistrate if there is a non-cognizable case or a complaint is made, subject to the requirement under Section 42.

Police Procedure For Arrest With Or Without Warrant

The process of arrest or the manner in which the arrest can be effected by a police officer or any other person is dealt with under Section 46 of the Code of Criminal procedure.

  1. For the purpose of making an arrest, it is necessary that the body of the person should be actually touched or confined by the police officer. Only oral intimidation without actual touch or submission will not result in arrest.[6] The person, to be arrested, can also make submission himself to the custody by expressed words or conduct[7]. It is further provided that, if the person who is to be arrested is a female, then the male police officer shall not touch her for making the arrest unless there is a female police officer or it is the need of the circumstances. Also, the oral intimidation of the arrest shall be presumed as her submission to custody.
  2. In circumstances where the person being arrested actively opposes or seeks to elude arrest, the police are authorized to use a reasonable amount of methods of force to make the arrest.
  3. This section does not grant the right to kill someone who has not been charged with a crime punishable with death or life imprisonment.
  4. A woman cannot be arrested after nightfall and before daybreak, unless under extreme circumstances, in which case the woman police officer can acquire prior permission to make an arrest from the Judicial Magistrate of the local jurisdiction by filing a written report. This subsection was enacted by the Parliament after various case laws came in courts for protection of women. The women police officer shall take the prior permission of the first class judicial magistrate by making a written report.[8]

In the case of Birendra Kumar Rai vs. Union of India[9], it was established that a police officer does not need to handcuff the person to make an arrest, and that the arrest can be completed with spoken words if the person willingly submits to custody.

In another case Bharosa Ramdayal vs. Emperor, it was held that when a person confesses his guilt to the police, he is considered to have submitted himself into the custody of a police officer. A person is considered to be submitted into custody if he or she goes to the police station at the officer’s direction. It is not necessary to make physical contact in such situations.[10]

Special Provisions for Women

Females are not to be arrested without the presence of a lady constable, and no females are to be arrested after sundown, but there are exceptions in some cases, such as when the crime is very serious and arrest is essential, then in such cases special orders can be issued and it depends on the facts and circumstances of each case. They should be housed in separate facilities or lock-ups. In addition to it, Section 53(2) embodies the beneficial notion that a female medical check-up should be conducted by a female medical practitioner.

Unnecessary Restraint

As per Section 49 of the code, the person to be arrested should not be subjected to any kind of unnecessary restraint. The restraint should be only to such limit which is necessary to prevent the escape of the person.

Additional Powers Provided For Effecting Arrest in India

1. Search of a place: A police officer can enter premises and conduct a search for the purpose of making an arrest. The owner of the property is legally obligated to furnish such officer with all necessary amenities. If a police officer is refused such facilities or if the officer is prevented from doing his job, or is detained on the premises, he has the right to use force. In case of the owner is a pardanashin lady, this provision also imposes reasonable restrictions.[11]

2. Pursuit of offenders: Section 48 of the Code talks about the pursuit of offenders into other jurisdictions. Pursuit of offender means pursuing someone or something, in this case, the offender. This section states that a police officer may pursue any individual whom he is authorized to arrest into any part of India for the purpose of arresting them without a warrant. In case of arrest with warrant, the warrant of arrest can be executed at any place.[12]

3. Deputing Subordinate officer to arrest: Any person who is lawfully arrested must be provided within writing the reason for his arrest, if any police officer in charge of a police station or any senior police officer conducting an inquiry under Chapter XII requires any subordinate to arrest without warrant. The senior police officer can give a written order, specifying the person to be arrested, to the subordinate officer. Before conducting such an arrest, the subordinate officer must inform the person being detained of the nature of the order and, if necessary, show him the order.[13]

4. Power to Pursue and retake, if there is an escape: In the event that a person in legal custody escapes or is rescued, the police officer from whose legal custody the person escaped can promptly pursue and re-arrest him. The officer has the same rights and duties as those listed in Sections 46 and 49 and can make such re-arrests anywhere in India. As a result, in case of re-arresting an escaped thief, the police officer was found to have no right to shoot the thief.[14]

Post Arrest Procedure

There are various post arrest procedures, which are the rights of an arrested person and duties of a Police Officer, which should be followed for a valid arrest. Some of these are:

1. Inform the grounds of Arrest: It is the responsibility of the police officer who detains a person without a warrant to tell the grounds for the arrest.[15]

When a warrant is used to make an arrest, the police officer is obligated to inform the person arrested about the nature of the arrest and, if necessary, to present the warrant.[16] If this is not done, the arrest will be considered illegal. It is also supported by the Indian Constitution which states that no one who has been arrested should be held in custody without first being notified of the basis for his arrest and having the opportunity to consult with a lawyer of his choice.[17]

2. Search of Arrested Person: The police officer can search the individual arrested, and the person must be given a receipt for all of founded items after the search. In addition, it is stipulated that in case of the search of a female, certain level of decency must be maintained.[18]

3. Seizure of Offensive Weapons: The officer or person conducting the arrest has the authority to seize any offensive weapon in the possession of person arrested and turn it over to the court or the officer in front of whom the person making the arrest is obligated to produce the person arrested, by the code.[19]

4. Medical Examination: For the purpose of facilitating effective investigation, the medical examination of the person arrested by a medical practitioner has been authorized. This is permitted if it is reasonably believed that the examination of the person will afford evidence to the Police Officer necessary for investigation. Section 53 of the Code empowers a senior police officer to compel the accused person to medical examination.

On the other hand, Article 20 of the Constitution provides that no person who is an accused can be compelled to give evidence against himself. Relying on the decision given by the Supreme Court in the case of State of Bombay vs. Kathi Kalu Oghad[20], it was held that this section is not violative of Article 20(3) of the Constitution of India. The Law Commission explained, in its report, that the effect of Article 20(3) is confined only to written or oral testimony.

5. Report before the Magistrate: When a police officer makes an arrest without a warrant, he owes it to the magistrate to appear before him as soon as possible (usually within 24 hours). It is also stated that the arrested person may not be taken anywhere other than the police station without appearing before the magistrate.[21] Report of all such person arrested without warrant shall be sent to the District Magistrate.[22] Also, the person arrested can be released only on bail bond or on the special order of the magistrate.[23]

Effect Of Non-compliance With The Police Procedure for arresting someone in India

The failure to comply with the provisions of the CrPC and other enactments relating to the police procedure for arresting someone in india will not render the trial null and void. If an arrest is made illegally or irregularly, the accused’s liability and the court’s jurisdiction are unaffected. However, if the accused resists or escapes from lawful custody, it will constitute a material fact. In addition, in case of an arrest by a private individual, the arrested person will have the right to private defence, but this right will be limited in the case of an arrest by a police officer or a public servant.

Conclusion

As we have seen, the Code of Criminal Procedure, 1973 governs the police procedure for arresting someone in India and assigns them with duties, however, this power of arrest provided to Police Officers is continuously being abused. The Officers have been seen using their authority to threaten and extort money from persons who have been arrested.

According to reports, they also fail to tell the arrested people about the charges against them, do not give them the appropriate legal assistance, and don’t present them in front of magistrate within 24 hours in many cases.  As a result, it is critical to implement reforms in the Criminal Justice Administration, and the method should be followed strictly in order to get the best results.

[1] Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure 93 (18th ed. 2006)

[2] Black Law’s Dictionary

[3] AIR 1951 SC 207

[4] AIR 1953 SC 10

[5] Criminal Procedure Code,  Section 151

[6] Harmohanlal vs. Emperor, (1929) 30 CriLJ 128

[7] Paramhansa vs. State, AIR 1964 Ori 144

[8] Inserted by Criminal Procedure Code (Amendment) Act, 2005

[9] 1992 CriLJ 3866

[10] Bharosa Ramdayal vs. Emperor, 13 Ind Cas 999

[11] Code of Criminal Procedure, 1973, Section 47

[12] Id., Section 77

[13] Id., Section 55

[14] Dakhi Singh vs. State, 1955 CriLJ 905

[15] Criminal Procedure Code, Section 50(1)

[16]  Id., Section 75

[17] Constitution of India, Article 22(1)

[18] Criminal Procedure Code, Section 51(1)

[19] Id., Section 52

[20] AIR 1961 SC 1808

[21] Criminal Procedure Code, Section 56 r/w Section 75 and Article 22 of the Constitution of India

[22] Criminal Procedure Code, Section 58

[23] Id., Section 59

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Radhika Maheshwari

I am Radhika Maheshwari, BALLB student (4th year) in Faculty of Law, Aligarh Muslim University, Aligarh. I am born and brought up in Aligarh and completed my High School education from Radiant Stars English School with 10 CGPA and my +2 education from Girls School, AMU and scored 82%. I am also a "C" certificate holder in NCC and is currently working with an NGO "Zomato Feeding India, Aligarh". My hobbies include singing, dancing, reading novels, etc. In my college life, I have done a few internships, online courses and took part in some competitions. My strength is in my nature- I like to take up challenges and accept both success and failure in a balanced way, loves to do team work and am always eager to learn something new. Right now, my goal is to build my career in judiciary.