Life and liberty are revered freedom of our consecrated Constitution under Article 21, but it has been repeatedly hindered by the exploitation, done by the police meant to protect us, owing to the vast power provided to them by the Code of Criminal Procedure (Cr.P.C), 1973. It is up to the common people to thoroughly understand the concepts of arrest, search and seizure; in order to protect themselves from such harassment and injustice by the people in power.
What is an arrest?
Interestingly, the Criminal Procedure Code of 1973, which deals with the aspects of arrests, has not defined the term ‘Arrest’. Hence, the general idea is that, whenever a person is arrested, the arrested person is taken into the custody of an authority empowered by law to detain the person. The arrested person is then asked to answer the charges made against him and he is then detained in order to prevent any further crimes which may be committed. At times, there is also restraint by the legal authority but sometimes the person voluntarily submits to the custody of the person making the arrest.
There are primarily two types of arrest-
(1) An arrest made in view of a warrant issued by a magistrate.
(2) An arrest made without such a warrant but in accordance with some legal provision permitting such an arrest.
Who can arrest and under what circumstances-
- A police officer
- Private person
A police officer under Section 41 of Cr.P.C. may arrest any person without the order of Magistrate and warrant under special circumstances mentioned in it.
A Magistrate can also under section 44(1) of the CrP.C.
A private person is also entitled under section 43(1)of the Cr.P.C. to arrest a person who, in his very presence commits a non-bailable offence or who is a proclaimed offender.
Procedure for arrest
Section 46 of the Cr.P.C. explains the procedure for arrest. An arrest ought to be made by actually touching the person except where he submits to custody by words or action. This section also provides some protection in the matters of the arrest. A woman is ought to be submitted to custody by words only and shall not be touched by the police officer except when the circumstances require so or where a female police officer is present.
Also, no person has the right to cause the death of a person who has not been accused of an offence punishable with either death or life imprisonment.
Rights of an arrested person
Cr.P.C. has given vast powers to the people authorized by law to make arrests. However, in order to make sure that such power is not misused it has also provided people who are arrested with various rights to protect themselves from any harassment.
1. Right to be informed – as per section 50(1), it is the duty of the person making the arrest to inform the arrested person the grounds of his arrest.
2. Right to bail – If a person has been accused of a bailable offence, it is his right to be informed that, he is entitled to this right.
3. Right to not be detained for more than 24 hours – As per sec. 57 of Cr.P.C., a person arrested without a warrant shall not be detained in custody for more than 24 hours. Within 24 hours the accused shall be produced before the Magistrate.
4. Right to be defended by a legal practitioner- Article 22(1) of the Constitution lays down the fundamental right of a person arrested, to consult a legal practitioner of his choice. Further, also is the duty of Court under section 304 of Cr.P.C. to engage a pleader at the expense of the State for accused if he himself has no sufficient means to engage one.
Search and Seizure
In the process of investigation, the term ‘search’ refers to the examination of the individual or the premises of such suspect in order to procure material evidence and seizure means to take the possession of that property after the due search has been completed. Search hinders the individual from enjoying his property, but it needs to be carried out for legal purposes. Article 19(5) of the Constitution of India also mentions that the right to hold property is not absolute and this right comes with its own set of restrictions.
Some vital points to be remembered regarding this are-
- The Police have the authority to seize the property of the accused even in cases of non-cognizable offences. However, there needs to be reasonable suspicion behind such seizure.
- It has previously been established in the case of, In Bithal v. State, that the Police officer solely, is authorized to seize such property and he cannot delegate another individual to do so.
- Under Section 47 of CrPC, the Police officer is free to enter and search the premises. However, this power can only be exercised when the officer is acting under a warrant of arrest. The Police Officer also has the power to break open the door or window with an aim to free himself or another individual. Under section 58 the Police also, have the power to search a person in any place in the territory of India.
- Under section 165(1) of the Cr.P.C, the Police may conduct a search within the limits of the station. This Section does not cover the cases in which search the Court issues warrant.
- During the investigation, the Police, after the search is entitled to seize a few articles. However, the Police has to prepare a seizure mahazar on spot in compliance with the Code, since the individuals often put allegations upon the Police officials alleging that the articles have been falsely planted.
- Previously, the Court has held that the evidence obtained by improper means such as illegal search and illegal seizure will not per se inadmissible and depends on the circumstances of the case.
Knowing and understanding the due processes of arrest, search and seizure can save a person from harassment and unjust treatment by the very people who are entrusted with the responsibility of ensuring law and order in the society. Which makes it of utmost importance to spread awareness on such topics.
This Article is Authored by Ananya Dutta, 2nd Year BA.LLB (Hons.) Student at Institute of Law, Nirma University.
Also Read – Search, Seizure And Production Of Materials