Law of Arrest in India

‘Ignorantia Juris Non Excusat’ i.e. ‘Ignorance of Law is no excuse’. A person cannot be excused for not knowing the laws even of the foreign country he is residing in. Among many laws, Law of Arrest is the one which every person should be well versed with. A person has more chance of being a victim of exploitation if he isn’t aware of the laws he is subjected to. Here we’ll discuss all the important aspect of Law of Arrest in Brief. You won’t have to spare ample amount of time to read this article. We made it simple for you.

 

Chapter five of the Code of Criminal Procedure, 1973 deals with the arrest of persons.  Section 41 of CrPC deals with the circumstances where a police officer may arrest without a warrant. Police officer may arrest without a warrant a;

  • Person committing cognizable offence or against whom a complaint has been made or against whom a suspicion exists.
  • Person who is proclaimed an offender under CrPC or by a state government.
  • Person with possession of suspicious stolen property or suspicion of an offence of such a kind.
  • Person who obstructs a police officer while doing his duty or who escapes or attempts to escape from lawful custody.
  • Person suspected to be a deserter of armed forces.
  • Peron for whose arrest a requisition is made by any other police officer.

 

Comment: The generality of language and the consequent wide discretion vesting in police officers is indeed enormous – and that has been the very source of abuse and misuse.

 

Section 41B directs a police officer to bear an accurate, visible and clear identification of his name and prepare a memorandum of arrest which shall be attested by at least one witness, who is a member of a family of arrested person or respectable member of the locality where the arrest is made and such memorandum shall be countersigned. The arrestee shall have a right to inform his friend or relative about his arrest.

According to Section 42 of CrPC, a police officer may arrest a person if he has committed an offence in front of that officer, or against whom a complaint of non cognizable offence is made and he refuses to give his name or residence or giving false details. Here the person will be arrested for only a short time for ascertaining name and details of residence. Then he shall be released with or without any bond.

Section 43 and section 44 of CrPC deals with the cases where arrest can be made by private person and magistrate respectively. Section 45 protects a person from armed forces from arrest.

MANNER OF ARREST

Section 46 of CrPC deals with the manner in which a police officer shall arrest a person.

  • The police officer or other person making an arrest shall actually touch or confine the body of the person to be arrested, unless there is a submission to the custody by word or action.
  • Where a woman is to be arrested, her submission to custody on an oral intimation of arrest shall be presumed and unless a police officer is a female, the woman to be arrested shall not be touched for making an arrest.
  • If a person to be arrested resists police officer’s endeavour to arrest him, police officer or other person may use all means necessary to arrest that person.
  • Police officer cannot kill a person to give an effect to arrest.
  • No woman shall be arrested after sunset or before sunrise. If it is necessary to arrest a woman under such circumstances, then a woman police officer must obtain the permission of Judicial Magistrate of first class.

Section 48 empowers the police officers to pursue the offenders into any place in India beyond their jurisdiction.

Section 49 provides that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

According to section 50, a police officer must inform the arrested person about the grounds of his arrest and his right to obtain a bail in a bailable offence.

Under section 50A, a police officer must inform about the arrest of a person to a friend or relative of such arrested person or to a person nominated by such arrested person.  A police officer must tell the arrested person about this right. An entry of such informed person should be made in writing.

Under section 53, a police officer, not below a rank of sub inspector, may ask a medical practitioner to medically examine the arrested person if the circumstances are such that it would lead to finding of some evidence as to commission of an offence.

Section 55 prescribes that a police officer may ask his subordinate, in writing, to lawfully arrest a person without a warrant.

It shall be the duty of a person having the custody of an accused to take reasonable care of the health and safety of the accused.

Section 56 provides that the person arrested shall not be kept in the custody of a police officer for a longer period than is reasonable and that in any event such period shall not exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the magistrate’s court.

According to section 58, officer in charge of police stations shall report to district magistrate or to sub-divisional magistrate, cases of all persons arrested without warrant whether such persons have been admitted to bail or otherwise.

Section 59 says that no person arrested by a police officer shall be discharged except on his own bond or bail or under the special order of the magistrate.

 

Under section 151 of CrPC, police officers are provided with very wide powers of arrest. A police officer may arrest a person without any order from a Magistrate and without any warrant, if he knows that such person is going to commit a cognizable offence and by arresting him, the offence can be prevented. This section provides a wide discretion to the police officer as it is up to him to decide whether the arrest is necessary to prevent such cognizable offence or not.

 

There have been many situations where section 107, 108, 109 and 110 of CrPC have been invoked in the country for calling upon, by a magistrate, a person for keeping peace and good behaviour of such person and execute bonds thereof. Police officers are not empowered to arrest a person under these provisions. Even here there is a vast discretion involved.

 

Under Constitution of India, rights of an arrested person are stated as follows;

  • Under Article 22(1) a person has a right to know the grounds of his arrest and to consult and be defended by a legal practitioner of his choice.
  • Under Article 22(2) every person arrested shall be taken to the nearest magistrate within 24 hours of his arrest. 24 hours would not include the time for commute to reach the magistrate.
  • Article 22(3) provides that clause (1) and clause (2) will not apply to enemy alien or the person kept under preventive detention.

 

Comments: Inspite of the safeguards and strict rules provided in both Code of criminal procedure and Constitution, violation by police officers and civil servants has been prevalent. One of the reasons is cast amount of discretion given to police officials and civil servants. The brunt in the end has to borne by the poor who couldn’t defend themselves and are not aware of the safeguards provided in the law. Nowadays even the middle class and some well to do who do not have political-wielders are becoming targets of police excesses.

After some discretionary powers given under CrPC, there are some safeguards given to the arrested person in the country which are inherent in the constitution itself. The provisions of Article 20, 21 and 22 of the Constitution provides for effective enforcement of fundamental Human rights of the arrested person.

The most Fundamental rights of the arrested persons and the form of conduct of the Police officials in carrying out the arrests were laid down in the form of Guidelines by the Supreme Court of India in 1997 in the case of DK Basu v. State of West Bengal.  It is worth the mention that the guidelines issued under this case are taken at par with the law and are written in every police manual of the country. The guidelines were as follows:

 

  • A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
  • That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
  • The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
  • The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
  • The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
  • 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 and particulars of the police officials in whose custody the arrestee is.
  • The arrestee should be subjected to medical examination by a 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.
  • The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
  • Copies of all the documents including the memo of arrest, referred to above, should be sent to the Ilaqa Magistrate for his record.
  • The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
  • 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 causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous police board.

 

Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of Court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. The requirements mentioned in DK Basu case flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed.

 

Some other Miscellaneous rights of the arrested person in a nutshell:

  • Right against Self incrimination e. no one shall be compelled to be a witness against himself. This is a constitutionally guaranteed right provided under Article 20(3). The Supreme Court again in the year 2010 held that narco-analysis, brain mapping and lie detector test are in violation of Article 20(3) of the Constitution of India.
  • The Supreme Court of India in Hussainara khatoon& ors. v. Home secretary, state of Bihar said that right to speedy trial shall be treated as a fundamental right.
  • The practice of handcuffing the accused while taking him the court from the jail and then back to jail from the court has been disapproved by the court in Prem Shanker v. Delhi administration. It is necessarily implicit in Article 14 and Article 19 of the constitution that unless need arises, person’s limbs should not be fettered.
  • In Rudal Shah v. State of Bihar the Supreme Court laid down the rule of Compensation for the wrongs committed by the State to the citizens.

 

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