Q. What do you understand by Arrest? How is an arrest made? When can
the police arrest a person without an order from a magistrate and/or
without a warrant? Explain the rights of an arrested person.
[Right to know the grounds of arrest - Art 22(1), Sec 50, 50(A), Right to
consult and to be defended by legal practitioner of his choice - Art
22(1), Sec 303, Right to legal aid - Art 21, Sec 304, Right to bail
Sec 50(2), Right to be produced before nearest magistrate within 24
hrs - Art 22(2) Sec 56, 57, Right not to be detained in custody beyond
24 hrs - Art 22(2) Sec 57, 167, Right to be examined by medical
practitioner]
Arrest means apprehension of a person by legal authority so as to
cause deprivation of his liberty. Thus, after arrest, a person's
liberty is in control of the arrester. Arrest is an important tool for
bringing an accused before the court as well as to prevent a crime or
prevent a person suspected of doing crime from running away from the
law. Cr P C contemplates two types of arrests - an arrest that is made
for the execution of a warrant issued by a magistrate and an arrest
that is made without any warrant but in accordance with some legal
provision that permits arrest.
Section 41 to 44 contain provisions that govern the arrest of a person
by police and private citizens, while Section 46 describes how an
arrest is a made.
(Note - Arrest in case of Warrant is discussed in another question.)
Arrest without warrant
There are situations when a person may be arrested by a police
officer, a magistrate or even private citizen without a warrant. These
are described in Section 41, 42, 43, and 44 as follows -
Arrest by Police - Section 41. When police may arrest without warrant
(1) Any police officer may without an order from a Magistrate and
without a warrant, arrest any person -
(a) who has been concerned in any cognizable offence, or against whom
a reasonable complaint has been made, or credible information has been
received, or a reasonable suspicion exists, of his having been so
concerned; or
(b) who has in his possession without lawful excuse, the burden of
proving which excuse shall lie on such person, any implement of
house-breaking; or
(c) who has been proclaimed as an offender either under this Code or
by order of the State Government; or
(d) in whose possession anything is found which may reasonably be
suspected to be stolen property and who may reasonably be suspected of
having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty,
or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the
Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint
has been made, or credible information has been received, or a
reasonable suspicion exists, of his having been concerned in, any act
committed at any place out of India which, if committed in India,
would have been punishable as an offence, and for which he is, under
any law relating to extradition, or otherwise, liable to be
apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made
under sub-section (5) of section 356; or
(I) for whose arrest any requisition, whether written or oral, has
been received from another police officer, provided that the
requisition specifies the person to be arrested and the offence or
other cause for which the arrest is to be made and it appears
therefrom that the person might lawfully be arrested without a warrant
by the officer who issued the requisition.
(2) Any officer in charge of a police station may, in like manner,
arrest or cause to be arrested any person, belonging to one or more of
the categories of persons specified in section 109 or section 110.
In the case of Joginder Kumar vs State of UP, CrLJ, 1994, it was held
that no arrest can be made merely because it is lawful to do so. There
must be a justifiable reason to arrest. Further, in State vs Bhera,
CrLJ, 1997, it was held that the "reasonable suspicion" and
"creditable information" must relate to definite averments which must
be considered by the Police Officer himself before he arrests the
person.
Section 42 allows a police officer to arrest a person for a
non-cognizable offence, if he refuses to give his name and residence.
As per Section 42(1), when any person who, in the presence of a
police officer, has committed or has been accused of committing a
non-cognizable offence refuses, on demand of such officer, to give his
name and residence or gives a name or residence which such officer has
reason to believe to be false, he may be arrested by such officer in
order that his name or residence may be ascertained.
However, as per sub clause (2), the person must be released when the
true name and residence of such person have been ascertained. He may
be required to execute a bond, with or without sureties, to appear
before a Magistrate if necessary.
Provided that, if such person is not resident in India, the bond shall
be secured by a surety or sureties resident in India.
Further, as per sub clause (3), should the true name and residence of
such person not be ascertained within twenty-four hours from the time
of arrest or should he fail to execute the bond, or, if so required,
to furnish sufficient sureties, he shall forthwith be forwarded to the
nearest Magistrate having jurisdiction.
Arrest by Private person
Even private persons are empowered to arrest a person for protection
of peace in certain situations. This is important because police
cannot be present at every nook and corner and it is up to private
citizens to protect the society from disruptive elements or criminals.
As per section 43(1), any private person may arrest or cause to be
arrested any person who in his presence commits a non-bailable and
cognizable offence, or any proclaimed offender, and, without
unnecessary delay, shall make over or cause to be made over any person
so arrested to a police officer, or, in the absence of a police
officer, take such person or cause him to be taken in custody to the
nearest police station. Thus, if a person is drunk and is committing
assault on others, he may be rightly arrested by any citizen and taken
to the nearest police station.
However, it is important to note that this power can be exercised only
when the person making an arrest is under a bona fide impression that
a non-bailable and cognizable office is being committed in his
presence. One does not have a right to arrest on mere suspicion or on
mere opinion that an offence has been committed.
Procedure on arrest by private person -
As mentioned above, the private person must take the arrested person
to the police officer or police station without any reasonable delay.
If he keeps the person in his own custody, he will be guilty of
wrongful confinement as given in Section 342 of IPC.
As per section 43(2), If there is reason to believe that such person
comes under the provisions of section 41, a police officer shall
re-arrest him. Further, as per section 43(3), if there is reason to
believe that he has committed a non-cognizable offence, and he refuses
on the demand of a police officer to give his name and residence, or
gives a name or residence which such officer has reason to believe to
be false, he shall be dealt with under the provisions of section 42;
but if there is no sufficient reason to believe that he has committed
any offence, he shall be at once released.
A new provision has been incorporated as Section 50A, which makes it
obligatory for the police officer or any other person making an arrest
to give the information regarding such arrest and place where the
arrested person is being held to any of his friends, relatives or such
other persons as may be disclosed or nominated by the arrested person
for the purpose of giving such information. Further, the police
officer shall inform the arrested person of his rights under
subsection as soon as he is brought to the police station. He must
make an entry of the fact as to who has been informed of the arrest of
such person in a book to be kept in the police station in such form as
may be prescribed in this behalf by the State Government. It is the
duty of the Magistrate before whom such arrested person is produced,
to satisfy himself that the requirements of this section has been
complied with in respect of such arrested person.
Arrest by Magistrate
As per Section 44(1), when any offence is committed in the presence of
a Magistrate, whether Executive or Judicial, within his local
jurisdiction, he may himself arrest or order any person to arrest the
offender, and may thereupon, subject to the provisions herein
contained as to bail, commit the offender to custody. Further, (2) Any
Magistrate, whether Executive or Judicial, may at any time arrest or
direct the arrest, in his presence, within his local jurisdiction, of
any person for whose arrest he is competent at the time and in the
circumstances to issue a warrant.
Important thing to note here is that magistrates have wider power than
private citizen. A magistrate can arrest on the ground of any offence
and not only on cognizable offence. As held in the case of Swami
Hariharanand Saraswati vs Jailer I/C Dist. Varanasi, AIR 1954, the
arrested person must be produced before another magistrate within 24
hours, otherwise his detention will be illegal.
Arrest how made -
Section 46 describes the way in which an arrest is actually made. As
per Section 46(1), unless the person being arrested consents to the
submission to custody by words or actions, the arrester shall actually
touch or confine the body of the person to be arrested. Since arrest
is a restraint on the liberty of the person, it is necessary for the
person being arrested to either submit to custody or the arrester must
touch and confine his body. Mere oral declaration of arrest by the
arrester without getting submission to custody or physical touching to
confine the body will not amount to arrest. The submission to custody
may be by express words or by action. For example, as held in the case
of Bharosa Ramdayal vs Emperor AIR 1941, if a person makes a
statement to the police accusing himself of committing an offence, he
would be considered to have submitted to the custody of the police
officer. Similarly, if the accused proceeds towards the police station
as directed by the police officer, he has submitted to the custody. In
such cases, physical contact is not required. In case of Birendra
Kumar Rai vs Union of India, CrLJ, 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) If such person forcibly resists the endeavor to arrest
him, or attempts to evade the arrest, such police officer or other
person may use all means necessary to effect the arrest. Thus, if the
person tries to runaway, the police officer can take actions to
prevent his escape and in doing so, he can use physical force to
immobilize the accused. However, as per Section 46(3), there is no
right to cause the death of the person who is not accused of an
offence punishable with death or with imprisonment for life, while
arresting that person. Further, as per Section 49, an arrested person
must not be subjected to more restraint than is necessary to prevent
him from escaping.
Due to concerns of violation of the rights of women, a new provision
was inserted in Section 46(4) that forbids the arrest of women after
sunset and before sunrise, except in exceptional circumstances, in
which case the arrest can be done by a woman police officer after
making a written report and obtaining a prior permission from the
concerned Judicial Magistrate of First class.
In Kultej Singh vs Circle Inspector of Police, 1992, it was held that
keeping a person in the police station or confining the movement of
the person in the precincts of the police station amounts to arrest of
the person.
Rights of an Arrested person
Cr P C gives wide powers to the police for arresting a person. Such
powers without appropriate safeguards for the arrested person will be
harmful for the society. To ensure that this power is not used
arbitrarily, several restraints have been put on it, which,
indirectly, can be seen as recognition of the rights of a person being
arrested. Further, once arrested, a person is already at a
disadvantage because of his lack of freedom and so he cannot take
appropriate steps to defend himself. Thus, to meet the needs of "fair
trial", several provisions are given in CrPC, that give specific
rights to an arrested person. These rights can be described as
follows -
1. Right to know the grounds of arrest - Section 50(1) - According
this provision, every police officer or other person arresting any
person without warrant shall forthwith communicate to him full
particulars of the offence for which he is arrested or other grounds
for such arrest.
Similarly, when a subordinate officer is deputed by a senior police
officer to arrest a person under Section 55, the subordinate officer
must notify the person to be arrested of the substance of the written
order given by the senior officer, which clearly specifes the offence
for which he is being arrested. The same provision exists in case of
an arrest made under a warrant in Section 75. In this case, the police
officer or any person making arrest under warrat must notify the
substance of the warrant to the person being arrested and if required,
must show the warrant. As held in Satish Chandra Rai vs Jodu Nandan
Singh, ILR 26 Cal 748, if the substance of the warrant is not
notified, the arrest would be unlawful.
In Udaybhan Shuki vs State of UP 1999 CrLJ, All HC held that right to
be notified of grounds of arrest is a precious right of the arrested
person. This allows him to move the proper court for bail, make a writ
petition for habeas corpus, or make appropriate arrangements for his
defence.
This right is also a fundamental right given by the Constitution in
Art 22(1), which says, "No person who is arrested shall be detained in
custody without being informed, as soon as may be, of the grounds for
such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.". It embodies two
distinc rights - the right to be told of the grounds of arrest and the
right to consult a legal practioner of his choice. The second right of
consulting a legal practitioner of his choice actually depends on the
first right of being told about the grounds of arrest. If the person
doesn't know why he is being arrested, he cannot consult a legal
practioner meaningfully. In Harikishan vs State of Maharashtra AIR
1962, SC held that the grounds of arrest must be communicated to the
person in the language that he understands otherwise it would not
amount to sufficient compliance of the constitutional requirement.
2. Right to be informed of the provision for bail - Section 50(2) -
Some offences that are not very serious do not require the offender to
be kept in custody. For such offences, Cr P C allows the offender to
ask for bail as a matter of right. However, not every person knows
about Cr P C and so they cannot know that they can get bail
immediately. Thus, Section 50(2), provides that where a police
officer arrests any person other than a person accused of a
non-bailable offence without warrant, he shall inform the person
arrested that he is entitled to be released on bail and that he may
arrange for sureties on his behalf.
3. Right to be taken to magistrate without delay - Holding a person in
custody without first proving that the person is guilty is a violation
of human rights and is completely unfair. At the same time, holding a
person in custody is necessary for the police to carry on their
investigation of a crime. These two are contradictory requirements and
a balance must be found between them. Since police has arrested the
person, it cannot be the agency that determines whether person must be
kept confined further. This can only be decided by a competent
judicial authority. This is exactly what is embodied in Art 22(2) that
gives a fundamental right to the arrested person that he must be
produced before a magistrate within 24 hours of arrest. It says,
"Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of twenty-four
hours of such arrest excluding the time necessary for the journey from
the place of arrest to the court of the magistrate and no such person
shall be detained in custody beyond the said period without the
authority of a magistrate."
Section 57 of CrPC also contains a similar provision for a person
arrested without a warrant. It says, "No police officer shall detain
in custody a person arrested without warrant for a longer period than
under all the circumstances of the case is reasonable, and such period
shall not, in the absence of a special order of a Magistrate under
Section 167, exceed twenty four hours exclusive of the time necessary
for the journey from the place of arrest to the Magistrate's court."
Section 76 contains a similar provision for a person arrested under a
warrant. It says, "The police officer or other person executing a
warrant of arrest shall (subject to the provisions of section 71 as to
security) without unnecessary delay bring the person arrested before
the court before which he is required by law to produce such person.
Provided that such delay shall not, in any case, exceed twenty-four
hours exclusive of the time necessary for the journey from the place
of arrest to the Magistrate's court."
Thus, it can be see that it is a very important right that is meant to
prevent abuse of police power and to prevent the use of a police
station as a prison. It prevents arrest merely for the purpose of
extracting confessions. The arrested person gets to be heard by a
judicial authority that is independent of the police.
In Khatri (II) vs State of Bihar 1981 SCC, SC has strongly urged upon
the State and its police to ensure that this constitutional and legal
requirement of bringing an arrested person before a judicial
magistrate within 24 hours be scrupulously met. This is a healthy
provision that allows magistrates to keep a check on the police
investigation. It is necessary that the magistrates should try to
enforce this requirement and when they find it disobeyed, they should
come heavily upon the police.
Further, in Sharifbai vs Abdul Razak, AIR 1961, SC held that if a
police officer fails to produce an arrested person before a magistrate
within 24 hours, he shall be held guilty of wrongful detention.
Constitutional Perspective on Art 22(2) - On the face of it, this
article seems to be applicable on arrests with or without warrants.
However, in State of Punjab vs Ajiab Singh AIR 1953, SC observed that
it applies only to cases of arrests without warrant because in case of
an arrest with warrant, the judicial mind has already been applied
while issuing the warrant. So further safeguard is not required. This
decision has been widely criticized. In any case, the proviso to
Section 76 unmistakably provides that a person arrested under a
warrant must be produced before a magistrate within 24 hours.
4. Right to consult Legal Practitioner - Art 22 (1) - For conducting
a fair trial it is absolutely necessary that the accused person is
able to consult with a legal practitioner whom he trusts. Second part
of Article 22(1) gives this fundamental right to an arrested person.
It says that no person who is arrested shall be denied the right to
consult, and to be defended by, a legal practitioner of his choice.
However, this does not mean that the State must provide a legal
practitioner of the person's choice. It is up to the arrested person
to contact and appoint a such a legal practitioner. The State's
responsibility is only to ensure that he is not prevented from doing
so.
The same right is also provide by CrPC under Section 303, which says,
"Any person accused of offence before a Criminal Court or against whom
proceedings are instituted under this Code, may of right be defended
by a pleader of his choice."
5. Right to free legal aid - Art 21 and Section 304 - A person who
does not have the means to hire a legal practitioner is unable to
defend himself appropriately. This casts a cloud on the fairness of
the trial. Therefore, Section 304 provides that where, in a trial
before the Court of Session, the accused is not represented by a
pleader, and where appears to the Court that the accused has not
sufficient means to engage a pleader, the Court shall assign a pleader
for his defense at the expense of the State. In Khatri (II) vs State
of Bihar 1981 SCC, Supreme Court has also held that access to a legal
practitioner is implicit in Article 21, which gives fundamental right
to life and liberty. The state is under constitutional mandate to
provide free legal aid to an indigent accused person and this
constitutional obligation arises not only when the trial is commenced
but also when the person is first produced before a magistrate and
also when he is remanded from time to time. In Suk Das vs Union
Territory of Arunachal Pradesh 1986, SCC, SC has held that
non-compliance of this requirement or failure to inform the accused of
this right would vitiate the trial entailing setting aside of the
conviction and sentence. The right of an accused person to consult his
lawyer begins from the moment of his arrest. The consultation with the
lawyer may be within the presence of a police officer but not within
the police officer's hearing. SC also held that it is the duty on all
courts and magistrates to inform the indegent person about his right
to get free legal aid.
6. Right to be informed about the right to inform of his arrest to his
relative or friend -
In order to ensure a fair trial and to improve people-police
relationship, the Supreme Court, in Joginder Kumar vs State of UP
1994, formulated the rules that make it mandatory on the police
officer to inform one friend, relative, or any other person of the
accused person's choice, about his arrest. These rules were later
incorporated in CrPC under section 50 A in 2005.
Section 50 A (1) provides that once the arrested person is brought to
the police station, the police officer must inform a relative or a
friend, or any other person of the arrested person's choice, about his
arrest. He must also tell the place where the arrested person has been
kept. This is a very important step in ensuring justice with the
arrested person because this allows the arrested person and his well
wishers to take appropriate legal steps to secure his release.
However, all this will amount to nothing if the arrested person does
not even know about this very critical right. Thus, Section 50 A (2)
provides that the police officer must inform the arrested person of
this right. Further, as per Section 50 A (3) he must note down the
name and address of the person who was informed about the arrest. To
make sure that there is no violation of this right, section 50 A (4)
makes it a duty of the magistrate to verify that the provisions of
this section were complied with.
7. Right to be examined by a medical practitioner - While Section 53
allows a police officer to get the accused examined by a registered
medical practitioner, Section 54(1) gives the accused a right to get
himself examined by a registered medical practitioner. Section 54 (1)
says thus, "When a person who is arrested, whether on a charge or
otherwise, alleges, at the time when he is produced before a
Magistrate or at any time during, the period of his detention in
custody that the examination of his body will afford evidence which
will disprove the commission by him of any offence or which Magistrate
shall, if requested by the arrested person so to do direct the
examination of' the body of such person by a registered medical
practitioner unless the Magistrate considers that the request is made
for the purpose of vexation or delay or for defeating the ends of
Justice". While Section 53 is meant to aid the police in
investigation, Section 54(1) is meant for the accused to prove his
innocence. This right can also be used by the accused to prove that he
was subjected to physical injury.
In Sheela Barse vs State of Maharashtra 1983 SCC, SC held that the
arrested accused person must be informed by the magistrate about his
right to be medically examined in terms of Section 54(1).
However, it is not clear in the section whether the medical person
must be of the choice of the accused or shall be appointed by the
magistrate. The section is also silent on who will bear the expense of
the examination.
Non compliance to this important provision prompted Delhi High court
to issue directions that make it obligatory for the magistrates to ask
the arrested person as to whether he has any complaint of torture or
maltreatment in police custody.
Consequences of non-compliance with the provisions relating to arrest -
In general, non-compliance does not void a trial. Just because any
provision relating to arrest was not complied with does not affect
whether the accused is guilty or not. However, the violation will be
material in case the accused is prosecuted on the charge of resistance
to or escape from lawful custody.
Further, everybody has a right to defend himself against unlawful
arrest and a person can exercise this right under Section 96 to 106 of
IPC and he will not be liable for any injury caused due to it. Also, a
person who is making an illegal arrest is guilty of wrongful
confinement and also exposes himself to damages in a civil suit.
If a person who has an authority to arrest, arrests a person with full
knowledge that the arrest is illegal, he will be liable to be
prosecuted under Section 220 of IPC. Similarly, any private person who
does not have an authority to arrest, arrests a person with full
knowledge that the arrest is illegal, can be prosecuted under Section
342 of IPC for wrongful confinement.
A person making illegal arrest also exposes himself to civil suit of
false imprisonment.
It is important to note that the provisions regarding arrest cannot be
by-passed by alleging that there was no arrest but only an informal
detention. Informal detention or restraint of any kind by the police
is not authorized by law.
the police arrest a person without an order from a magistrate and/or
without a warrant? Explain the rights of an arrested person.
[Right to know the grounds of arrest - Art 22(1), Sec 50, 50(A), Right to
consult and to be defended by legal practitioner of his choice - Art
22(1), Sec 303, Right to legal aid - Art 21, Sec 304, Right to bail
Sec 50(2), Right to be produced before nearest magistrate within 24
hrs - Art 22(2) Sec 56, 57, Right not to be detained in custody beyond
24 hrs - Art 22(2) Sec 57, 167, Right to be examined by medical
practitioner]
Arrest means apprehension of a person by legal authority so as to
cause deprivation of his liberty. Thus, after arrest, a person's
liberty is in control of the arrester. Arrest is an important tool for
bringing an accused before the court as well as to prevent a crime or
prevent a person suspected of doing crime from running away from the
law. Cr P C contemplates two types of arrests - an arrest that is made
for the execution of a warrant issued by a magistrate and an arrest
that is made without any warrant but in accordance with some legal
provision that permits arrest.
Section 41 to 44 contain provisions that govern the arrest of a person
by police and private citizens, while Section 46 describes how an
arrest is a made.
(Note - Arrest in case of Warrant is discussed in another question.)
Arrest without warrant
There are situations when a person may be arrested by a police
officer, a magistrate or even private citizen without a warrant. These
are described in Section 41, 42, 43, and 44 as follows -
Arrest by Police - Section 41. When police may arrest without warrant
(1) Any police officer may without an order from a Magistrate and
without a warrant, arrest any person -
(a) who has been concerned in any cognizable offence, or against whom
a reasonable complaint has been made, or credible information has been
received, or a reasonable suspicion exists, of his having been so
concerned; or
(b) who has in his possession without lawful excuse, the burden of
proving which excuse shall lie on such person, any implement of
house-breaking; or
(c) who has been proclaimed as an offender either under this Code or
by order of the State Government; or
(d) in whose possession anything is found which may reasonably be
suspected to be stolen property and who may reasonably be suspected of
having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty,
or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the
Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint
has been made, or credible information has been received, or a
reasonable suspicion exists, of his having been concerned in, any act
committed at any place out of India which, if committed in India,
would have been punishable as an offence, and for which he is, under
any law relating to extradition, or otherwise, liable to be
apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made
under sub-section (5) of section 356; or
(I) for whose arrest any requisition, whether written or oral, has
been received from another police officer, provided that the
requisition specifies the person to be arrested and the offence or
other cause for which the arrest is to be made and it appears
therefrom that the person might lawfully be arrested without a warrant
by the officer who issued the requisition.
(2) Any officer in charge of a police station may, in like manner,
arrest or cause to be arrested any person, belonging to one or more of
the categories of persons specified in section 109 or section 110.
In the case of Joginder Kumar vs State of UP, CrLJ, 1994, it was held
that no arrest can be made merely because it is lawful to do so. There
must be a justifiable reason to arrest. Further, in State vs Bhera,
CrLJ, 1997, it was held that the "reasonable suspicion" and
"creditable information" must relate to definite averments which must
be considered by the Police Officer himself before he arrests the
person.
Section 42 allows a police officer to arrest a person for a
non-cognizable offence, if he refuses to give his name and residence.
As per Section 42(1), when any person who, in the presence of a
police officer, has committed or has been accused of committing a
non-cognizable offence refuses, on demand of such officer, to give his
name and residence or gives a name or residence which such officer has
reason to believe to be false, he may be arrested by such officer in
order that his name or residence may be ascertained.
However, as per sub clause (2), the person must be released when the
true name and residence of such person have been ascertained. He may
be required to execute a bond, with or without sureties, to appear
before a Magistrate if necessary.
Provided that, if such person is not resident in India, the bond shall
be secured by a surety or sureties resident in India.
Further, as per sub clause (3), should the true name and residence of
such person not be ascertained within twenty-four hours from the time
of arrest or should he fail to execute the bond, or, if so required,
to furnish sufficient sureties, he shall forthwith be forwarded to the
nearest Magistrate having jurisdiction.
Arrest by Private person
Even private persons are empowered to arrest a person for protection
of peace in certain situations. This is important because police
cannot be present at every nook and corner and it is up to private
citizens to protect the society from disruptive elements or criminals.
As per section 43(1), any private person may arrest or cause to be
arrested any person who in his presence commits a non-bailable and
cognizable offence, or any proclaimed offender, and, without
unnecessary delay, shall make over or cause to be made over any person
so arrested to a police officer, or, in the absence of a police
officer, take such person or cause him to be taken in custody to the
nearest police station. Thus, if a person is drunk and is committing
assault on others, he may be rightly arrested by any citizen and taken
to the nearest police station.
However, it is important to note that this power can be exercised only
when the person making an arrest is under a bona fide impression that
a non-bailable and cognizable office is being committed in his
presence. One does not have a right to arrest on mere suspicion or on
mere opinion that an offence has been committed.
Procedure on arrest by private person -
As mentioned above, the private person must take the arrested person
to the police officer or police station without any reasonable delay.
If he keeps the person in his own custody, he will be guilty of
wrongful confinement as given in Section 342 of IPC.
As per section 43(2), If there is reason to believe that such person
comes under the provisions of section 41, a police officer shall
re-arrest him. Further, as per section 43(3), if there is reason to
believe that he has committed a non-cognizable offence, and he refuses
on the demand of a police officer to give his name and residence, or
gives a name or residence which such officer has reason to believe to
be false, he shall be dealt with under the provisions of section 42;
but if there is no sufficient reason to believe that he has committed
any offence, he shall be at once released.
A new provision has been incorporated as Section 50A, which makes it
obligatory for the police officer or any other person making an arrest
to give the information regarding such arrest and place where the
arrested person is being held to any of his friends, relatives or such
other persons as may be disclosed or nominated by the arrested person
for the purpose of giving such information. Further, the police
officer shall inform the arrested person of his rights under
subsection as soon as he is brought to the police station. He must
make an entry of the fact as to who has been informed of the arrest of
such person in a book to be kept in the police station in such form as
may be prescribed in this behalf by the State Government. It is the
duty of the Magistrate before whom such arrested person is produced,
to satisfy himself that the requirements of this section has been
complied with in respect of such arrested person.
Arrest by Magistrate
As per Section 44(1), when any offence is committed in the presence of
a Magistrate, whether Executive or Judicial, within his local
jurisdiction, he may himself arrest or order any person to arrest the
offender, and may thereupon, subject to the provisions herein
contained as to bail, commit the offender to custody. Further, (2) Any
Magistrate, whether Executive or Judicial, may at any time arrest or
direct the arrest, in his presence, within his local jurisdiction, of
any person for whose arrest he is competent at the time and in the
circumstances to issue a warrant.
Important thing to note here is that magistrates have wider power than
private citizen. A magistrate can arrest on the ground of any offence
and not only on cognizable offence. As held in the case of Swami
Hariharanand Saraswati vs Jailer I/C Dist. Varanasi, AIR 1954, the
arrested person must be produced before another magistrate within 24
hours, otherwise his detention will be illegal.
Arrest how made -
Section 46 describes the way in which an arrest is actually made. As
per Section 46(1), unless the person being arrested consents to the
submission to custody by words or actions, the arrester shall actually
touch or confine the body of the person to be arrested. Since arrest
is a restraint on the liberty of the person, it is necessary for the
person being arrested to either submit to custody or the arrester must
touch and confine his body. Mere oral declaration of arrest by the
arrester without getting submission to custody or physical touching to
confine the body will not amount to arrest. The submission to custody
may be by express words or by action. For example, as held in the case
of Bharosa Ramdayal vs Emperor AIR 1941, if a person makes a
statement to the police accusing himself of committing an offence, he
would be considered to have submitted to the custody of the police
officer. Similarly, if the accused proceeds towards the police station
as directed by the police officer, he has submitted to the custody. In
such cases, physical contact is not required. In case of Birendra
Kumar Rai vs Union of India, CrLJ, 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) If such person forcibly resists the endeavor to arrest
him, or attempts to evade the arrest, such police officer or other
person may use all means necessary to effect the arrest. Thus, if the
person tries to runaway, the police officer can take actions to
prevent his escape and in doing so, he can use physical force to
immobilize the accused. However, as per Section 46(3), there is no
right to cause the death of the person who is not accused of an
offence punishable with death or with imprisonment for life, while
arresting that person. Further, as per Section 49, an arrested person
must not be subjected to more restraint than is necessary to prevent
him from escaping.
Due to concerns of violation of the rights of women, a new provision
was inserted in Section 46(4) that forbids the arrest of women after
sunset and before sunrise, except in exceptional circumstances, in
which case the arrest can be done by a woman police officer after
making a written report and obtaining a prior permission from the
concerned Judicial Magistrate of First class.
In Kultej Singh vs Circle Inspector of Police, 1992, it was held that
keeping a person in the police station or confining the movement of
the person in the precincts of the police station amounts to arrest of
the person.
Rights of an Arrested person
Cr P C gives wide powers to the police for arresting a person. Such
powers without appropriate safeguards for the arrested person will be
harmful for the society. To ensure that this power is not used
arbitrarily, several restraints have been put on it, which,
indirectly, can be seen as recognition of the rights of a person being
arrested. Further, once arrested, a person is already at a
disadvantage because of his lack of freedom and so he cannot take
appropriate steps to defend himself. Thus, to meet the needs of "fair
trial", several provisions are given in CrPC, that give specific
rights to an arrested person. These rights can be described as
follows -
1. Right to know the grounds of arrest - Section 50(1) - According
this provision, every police officer or other person arresting any
person without warrant shall forthwith communicate to him full
particulars of the offence for which he is arrested or other grounds
for such arrest.
Similarly, when a subordinate officer is deputed by a senior police
officer to arrest a person under Section 55, the subordinate officer
must notify the person to be arrested of the substance of the written
order given by the senior officer, which clearly specifes the offence
for which he is being arrested. The same provision exists in case of
an arrest made under a warrant in Section 75. In this case, the police
officer or any person making arrest under warrat must notify the
substance of the warrant to the person being arrested and if required,
must show the warrant. As held in Satish Chandra Rai vs Jodu Nandan
Singh, ILR 26 Cal 748, if the substance of the warrant is not
notified, the arrest would be unlawful.
In Udaybhan Shuki vs State of UP 1999 CrLJ, All HC held that right to
be notified of grounds of arrest is a precious right of the arrested
person. This allows him to move the proper court for bail, make a writ
petition for habeas corpus, or make appropriate arrangements for his
defence.
This right is also a fundamental right given by the Constitution in
Art 22(1), which says, "No person who is arrested shall be detained in
custody without being informed, as soon as may be, of the grounds for
such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.". It embodies two
distinc rights - the right to be told of the grounds of arrest and the
right to consult a legal practioner of his choice. The second right of
consulting a legal practitioner of his choice actually depends on the
first right of being told about the grounds of arrest. If the person
doesn't know why he is being arrested, he cannot consult a legal
practioner meaningfully. In Harikishan vs State of Maharashtra AIR
1962, SC held that the grounds of arrest must be communicated to the
person in the language that he understands otherwise it would not
amount to sufficient compliance of the constitutional requirement.
2. Right to be informed of the provision for bail - Section 50(2) -
Some offences that are not very serious do not require the offender to
be kept in custody. For such offences, Cr P C allows the offender to
ask for bail as a matter of right. However, not every person knows
about Cr P C and so they cannot know that they can get bail
immediately. Thus, Section 50(2), provides that where a police
officer arrests any person other than a person accused of a
non-bailable offence without warrant, he shall inform the person
arrested that he is entitled to be released on bail and that he may
arrange for sureties on his behalf.
3. Right to be taken to magistrate without delay - Holding a person in
custody without first proving that the person is guilty is a violation
of human rights and is completely unfair. At the same time, holding a
person in custody is necessary for the police to carry on their
investigation of a crime. These two are contradictory requirements and
a balance must be found between them. Since police has arrested the
person, it cannot be the agency that determines whether person must be
kept confined further. This can only be decided by a competent
judicial authority. This is exactly what is embodied in Art 22(2) that
gives a fundamental right to the arrested person that he must be
produced before a magistrate within 24 hours of arrest. It says,
"Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of twenty-four
hours of such arrest excluding the time necessary for the journey from
the place of arrest to the court of the magistrate and no such person
shall be detained in custody beyond the said period without the
authority of a magistrate."
Section 57 of CrPC also contains a similar provision for a person
arrested without a warrant. It says, "No police officer shall detain
in custody a person arrested without warrant for a longer period than
under all the circumstances of the case is reasonable, and such period
shall not, in the absence of a special order of a Magistrate under
Section 167, exceed twenty four hours exclusive of the time necessary
for the journey from the place of arrest to the Magistrate's court."
Section 76 contains a similar provision for a person arrested under a
warrant. It says, "The police officer or other person executing a
warrant of arrest shall (subject to the provisions of section 71 as to
security) without unnecessary delay bring the person arrested before
the court before which he is required by law to produce such person.
Provided that such delay shall not, in any case, exceed twenty-four
hours exclusive of the time necessary for the journey from the place
of arrest to the Magistrate's court."
Thus, it can be see that it is a very important right that is meant to
prevent abuse of police power and to prevent the use of a police
station as a prison. It prevents arrest merely for the purpose of
extracting confessions. The arrested person gets to be heard by a
judicial authority that is independent of the police.
In Khatri (II) vs State of Bihar 1981 SCC, SC has strongly urged upon
the State and its police to ensure that this constitutional and legal
requirement of bringing an arrested person before a judicial
magistrate within 24 hours be scrupulously met. This is a healthy
provision that allows magistrates to keep a check on the police
investigation. It is necessary that the magistrates should try to
enforce this requirement and when they find it disobeyed, they should
come heavily upon the police.
Further, in Sharifbai vs Abdul Razak, AIR 1961, SC held that if a
police officer fails to produce an arrested person before a magistrate
within 24 hours, he shall be held guilty of wrongful detention.
Constitutional Perspective on Art 22(2) - On the face of it, this
article seems to be applicable on arrests with or without warrants.
However, in State of Punjab vs Ajiab Singh AIR 1953, SC observed that
it applies only to cases of arrests without warrant because in case of
an arrest with warrant, the judicial mind has already been applied
while issuing the warrant. So further safeguard is not required. This
decision has been widely criticized. In any case, the proviso to
Section 76 unmistakably provides that a person arrested under a
warrant must be produced before a magistrate within 24 hours.
4. Right to consult Legal Practitioner - Art 22 (1) - For conducting
a fair trial it is absolutely necessary that the accused person is
able to consult with a legal practitioner whom he trusts. Second part
of Article 22(1) gives this fundamental right to an arrested person.
It says that no person who is arrested shall be denied the right to
consult, and to be defended by, a legal practitioner of his choice.
However, this does not mean that the State must provide a legal
practitioner of the person's choice. It is up to the arrested person
to contact and appoint a such a legal practitioner. The State's
responsibility is only to ensure that he is not prevented from doing
so.
The same right is also provide by CrPC under Section 303, which says,
"Any person accused of offence before a Criminal Court or against whom
proceedings are instituted under this Code, may of right be defended
by a pleader of his choice."
5. Right to free legal aid - Art 21 and Section 304 - A person who
does not have the means to hire a legal practitioner is unable to
defend himself appropriately. This casts a cloud on the fairness of
the trial. Therefore, Section 304 provides that where, in a trial
before the Court of Session, the accused is not represented by a
pleader, and where appears to the Court that the accused has not
sufficient means to engage a pleader, the Court shall assign a pleader
for his defense at the expense of the State. In Khatri (II) vs State
of Bihar 1981 SCC, Supreme Court has also held that access to a legal
practitioner is implicit in Article 21, which gives fundamental right
to life and liberty. The state is under constitutional mandate to
provide free legal aid to an indigent accused person and this
constitutional obligation arises not only when the trial is commenced
but also when the person is first produced before a magistrate and
also when he is remanded from time to time. In Suk Das vs Union
Territory of Arunachal Pradesh 1986, SCC, SC has held that
non-compliance of this requirement or failure to inform the accused of
this right would vitiate the trial entailing setting aside of the
conviction and sentence. The right of an accused person to consult his
lawyer begins from the moment of his arrest. The consultation with the
lawyer may be within the presence of a police officer but not within
the police officer's hearing. SC also held that it is the duty on all
courts and magistrates to inform the indegent person about his right
to get free legal aid.
6. Right to be informed about the right to inform of his arrest to his
relative or friend -
In order to ensure a fair trial and to improve people-police
relationship, the Supreme Court, in Joginder Kumar vs State of UP
1994, formulated the rules that make it mandatory on the police
officer to inform one friend, relative, or any other person of the
accused person's choice, about his arrest. These rules were later
incorporated in CrPC under section 50 A in 2005.
Section 50 A (1) provides that once the arrested person is brought to
the police station, the police officer must inform a relative or a
friend, or any other person of the arrested person's choice, about his
arrest. He must also tell the place where the arrested person has been
kept. This is a very important step in ensuring justice with the
arrested person because this allows the arrested person and his well
wishers to take appropriate legal steps to secure his release.
However, all this will amount to nothing if the arrested person does
not even know about this very critical right. Thus, Section 50 A (2)
provides that the police officer must inform the arrested person of
this right. Further, as per Section 50 A (3) he must note down the
name and address of the person who was informed about the arrest. To
make sure that there is no violation of this right, section 50 A (4)
makes it a duty of the magistrate to verify that the provisions of
this section were complied with.
7. Right to be examined by a medical practitioner - While Section 53
allows a police officer to get the accused examined by a registered
medical practitioner, Section 54(1) gives the accused a right to get
himself examined by a registered medical practitioner. Section 54 (1)
says thus, "When a person who is arrested, whether on a charge or
otherwise, alleges, at the time when he is produced before a
Magistrate or at any time during, the period of his detention in
custody that the examination of his body will afford evidence which
will disprove the commission by him of any offence or which Magistrate
shall, if requested by the arrested person so to do direct the
examination of' the body of such person by a registered medical
practitioner unless the Magistrate considers that the request is made
for the purpose of vexation or delay or for defeating the ends of
Justice". While Section 53 is meant to aid the police in
investigation, Section 54(1) is meant for the accused to prove his
innocence. This right can also be used by the accused to prove that he
was subjected to physical injury.
In Sheela Barse vs State of Maharashtra 1983 SCC, SC held that the
arrested accused person must be informed by the magistrate about his
right to be medically examined in terms of Section 54(1).
However, it is not clear in the section whether the medical person
must be of the choice of the accused or shall be appointed by the
magistrate. The section is also silent on who will bear the expense of
the examination.
Non compliance to this important provision prompted Delhi High court
to issue directions that make it obligatory for the magistrates to ask
the arrested person as to whether he has any complaint of torture or
maltreatment in police custody.
Consequences of non-compliance with the provisions relating to arrest -
In general, non-compliance does not void a trial. Just because any
provision relating to arrest was not complied with does not affect
whether the accused is guilty or not. However, the violation will be
material in case the accused is prosecuted on the charge of resistance
to or escape from lawful custody.
Further, everybody has a right to defend himself against unlawful
arrest and a person can exercise this right under Section 96 to 106 of
IPC and he will not be liable for any injury caused due to it. Also, a
person who is making an illegal arrest is guilty of wrongful
confinement and also exposes himself to damages in a civil suit.
If a person who has an authority to arrest, arrests a person with full
knowledge that the arrest is illegal, he will be liable to be
prosecuted under Section 220 of IPC. Similarly, any private person who
does not have an authority to arrest, arrests a person with full
knowledge that the arrest is illegal, can be prosecuted under Section
342 of IPC for wrongful confinement.
A person making illegal arrest also exposes himself to civil suit of
false imprisonment.
It is important to note that the provisions regarding arrest cannot be
by-passed by alleging that there was no arrest but only an informal
detention. Informal detention or restraint of any kind by the police
is not authorized by law.
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