According to Legal Dictionary by Farlex, arrest means “a seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge.”[1] The procedure of arrest has been given under Chapter V( Sections 41-60) in Criminal Procedure Code(Cr.PC) 1973. Though arrest has not been defined in Cr.PC.
Who can make Arrest?
The right to make an arrest by police officers, magistrates and private citizens without a warrant has been given in Sections 41- 44 of Cr.PC. The method in which such persons can make an arrest has been mentioned in Section 46, Cr.PC.
1. Arrest by Private Citizen- Under Section 43, Cr.PC any private individual has the authority to arrest a person without any warrant when that person is considered to be a proclaimed offender under Section 82 of the Cr.PC and further has been found to commit a non-bailable and cognizable offence in his presence. Furthermore, any private citizen can arrest with a warrant under Sections 72 and 73 of the Cr.PC, under the order of a police officer under Section 37 of Cr.PC and under the order of a magistrate under Section 37 and 44 of the Cr.PC.
2. Arrest by Magistrate- A Magistrate (Executive or Judicial) can make arrest under Section 44 (6) of the Cr.PC if the offence is committed in his presence. He can make the arrest himself or order someone to make the arrest of the offender in such a situation and has the right to commit the said offender to custody. Moreover, a military officer can also make arrest under Sections 130 and 131 of the Cr.PC. The submission to custody may be express words or may be indicated by conduct.[2]
3. Arrest by Police Officer- A police officer can arrest under Sections 41(1) to 151 of the Cr.PC. Under Sections 41, 42, 151 of Cr.PC, a police officer can arrest without a warrant in the resulting circumstances:
- Who has been involved in any cognizable offence or
- Who has been in possession, without the lawful excuse of any housebreaking weapon or
- Who has been proclaimed as an offender either under CrPC or by the order of the State Government or
- Who is in possession of any stolen property or
- Who obstructs a police officer while in the execution of his duty or who has escaped, or attempts to escape, from lawful custody or
- Who is reasonably suspected of being a deserter from any of the Armed forces of the Union or
- Who has been concerned in any law relating to extradition or
- Who, being a released convict commits a breach of any rule made under sub-section (5) of Section 356 Cr.PC or
- For whose arrest any requisition has been received from another police officer specifying the person to be arrested and the offence and other cause for which the arrest is to be made.
If a person makes a statement to a police officer, accusing himself of having committed an offence, he would be considered to have submitted to the custody of the police officer.[3] If the accused proceeds towards the police station as directed by a police officer, he would be held to have submitted to the custody of the police officer.[4]
Further, resistance or obstruction to a lawful arrest has been made punishable by the Penal Code, 1860 (IPC).
Procedure of Arrest
Section 46 Cr.PC mentions the way an arrest can be made. According to Section 46(1) of Cr.PC, lest the person being arrested consents to the submission to custody expressed vocally by words or say by any action, the arrested can touch or detain the body of the individual to be arrested. Now, an arrest is essentially a restraint on the liberty of that individual and therefore, it is crucial for the person being arrested to either submit to custody or the arrested must touch and confine his body. A simple oral declaration of the said arrest by the arrested without actually submitting to custody or physical touching to confine the body will not result in an arrest. The submission to custody can be made expressly by use or words or by action.
It was held in the case of Kaiser Otmar v. State of TN[5] that preventing a person from making his movements and from according to his will amount to arrest of such person. An oral declaration of arrest without actual contact or submission to custody will not amount to an arrest.[6] In case of Birendra Kumar Rai vs Union of India, 1992, it was held that arrest need not be by handcuffing the person, and it can also be complete by spoken words if the person submits to custody.
Section 46(2) of the Cr.PC states that if any individual forcibly resists the attempt to arrest him or attempts to escape the arrest, then the police officer or any other such person may use all means required to effect the arrest. Say if the person tries to escape, then the police officer can take the required actions to prevent such an escape and in furtherance of the same, he is allowed to use physical force to restrain the accused. Conversely, according to Section 46(3) of the CrPC, the police officer has no right to cause the death of any individual who has not been accused of an offence punishable with death or with imprisonment for life. Moreover, according to Section 49 of CrPC an arrested person “must” not be subjected to more restraint than that is necessary to inhibit him from escaping. Due to the justified concerns of violation of the rights of women, a new provision was inserted in Section 46(4) of the CrPC which prohibits the arrest of women after sunset and before sunrise, except in exceptional circumstances.
Section 41A of the CrPC deals with cases not covered under Section 41 (1), wherein a police officer is not allowed to arrest when he issues a notice. The police officer can only effect the arrest when the notice after receiving the said notice does not ultimately comply with the notice. Section 41B of the CrPC states that the conduct of police officers while making an arrest should bear an accurate, clear & visible identification of his name for the purposes of easy identification and henceforth prepare an arrest memo attested by either a family member of the arrested or a respectable member of society and countersigned by the arrested himself. The arrested is also to be informed of his right to have a relative or a friend of his informed of his arrest, if arrest memo is not attested by his family member.
[1] https://lawlex.org/lex-bulletin/rights-of-arrested-person/4320 (Accessed on 6th June 2020)
[2] Paramhansa v. State, AIR 1964 Ori 144; State of UP v. Deoman Upadhyay, 1960 Cri LJ 1504: AIR 1960 SC 1125, 1131.
[3] Bharosa v. Emperor, (1941) 42 Cri LJ 390: AIR 1941 Nag 86, 90; Legal Remembrancer v. Lalit Mohan Singh Roy, ILR (1921) 49 Cal 67; Santokhi Beldar v. Emperor, (1933) 34 Cri LJ 349, 351(Pat).
[4]Supt. & Remembrancer of Legal Affairs v. Kaloo Khan, (1948) 49 Cri LJ 22: AIR 1948 Cal 68.
[5] Kaiser Otmar v. State of T.N, 1981 LW (Cri) 158 (Mad).
[6] Harmohanlal v. Emperor, (1929) 30 CriLJ 12; Aludomal v. Emperor, (1916) 17 Cri LJ 87 (Sind JCC).
This Article is Authored by Vidhi Udayshankar, 3rd Year, B.A LL.B(Hons.), Student of Amity Law School, Delhi (GGSIPU).
Also Read – Who Can Arrest under CrPC?
