Arrest provision

 

Arrest provision

Written by - shalini bishi

Introduction

An Arrest is an act of taking a person into custody as he/she may be suspected of a crime or an offence. It is done because a person is apprehended for doing something wrong. After arresting a person further procedures like interrogation and investigation is done. It is part of the Criminal Justice System. In an action of arrest, the person is physically detained by the concerned authority.

If we look at the dictionary meaning of the word ‘arrest’ it means to seize or to capture, to bring to a stop or to make it inactive. From all the meanings it can be deduced that arrest means to bring a stop to a person’s activity. A person can be arrested by police or Magistrate. But can an individual arrest another individual? If yes, then when can he be arrested and for what reason? Does an arrested person has fundamental rights? How can he get it enforced? All these basic questions regarding Arrest have been answered in this Article. 

Significance of the topic

The Arrest is one of the most important subjects of the Criminal Justice System. Why is it important to study this topic? It is so because an arrest is used as a tool for a person who is accused of a wrong. It tries to prevent wrong that is happening in society. It is used to create a sense of fear among the people that if any wrong is committed, a person’s movement will be restricted to four walls with very basic amenities. A person values his freedom the most and action of arrest takes this freedom from a person. 

The great political philosopher Bolingbroke once said,

“Liberty is to the collective body, what health is to every individual body. Without health no pleasure can be tasted by man; without Liberty, no happiness can be enjoyed by society.” These points make it important for us to give full attention to this topic. As in either way it is a part of our everyday life.

Types of arrest

The term Arrest has been defined neither in the CrPC (The Code of Criminal Procedure,1973) nor IPC (Indian Penal Code,1860). The definition has not been provided even in any enactments dealing with Criminal Offences. The only indication of what does an arrest constitute can be made out of Section 46 of CrPC which deals with ‘How an arrest is made’.

If broadly characterized arrest is of two types-

Arrest made in pursuance with a warrant issued by the magistrate.

Arrest made without any warrant but within the established legal provisions.

Another type of arrest is Private Arrest in which a person is arrested by another person. But it is allowed only in case a person commits a non-bailable offence in another person’s presence or is apprehended of committing a crime against a person or his property and when he is not given the correct address of his residence or it is unknown. But before arresting a person there should be sufficient apprehension and justifiable cause to arrest that particular person.

Arrest by warrant

If a person commits an offence which is non-arrestable then a warrant is necessary to be issued. The police cannot make such kind of arrest without a warrant. The warrant is issued by a Judge or a Magistrate on behalf of the state. An arrest warrant authorizes the arrest or detention of the person or capture or seizure of an individual’s property. Section 41(1) of CrPC,1973 explains when can a person be arrested without any warrant. Section 41(2) of CrPC, 1973 states that subject to the condition in Section 42, a person cannot be arrested without a warrant and an order of the magistrate in case of non-cognizable offence and where a complaint is made. The procedures to be followed while arresting a person find its mention in Section 46 of the Code. But this Code is not fully sufficient to provide all the procedures, for this the guidelines given in different cases are followed. 

Arrest without warrant

An arrest without a warrant means when a police officer is entitled to arrest a person without any warrant. It can happen only in cases where a person is a suspect of an arrestable offence. There are several grounds provided in Section 41(1) of CrPC under which an arrest can be made without a warrant. It is usually done in case of a cognizable offence, when a reasonable complaint is made or when a piece of credible information has been received.

In the United States, an arrest without a warrant still requires a probable cause, which must be promptly filed. 

Arrest on refusal to give name and residence

Section 42 of CrPC states the course of action in case of arrest on refusal to give name and residence. 

Section 42(1) says that when a person has committed a non-cognizable offence refuses to give his name or address or gives a false name and address on the demand of the officer, he may be arrested by such officer to ascertain his correct name or residence.

Section 42(2) says that the person so arrested may be released after ascertaining the true name or residence but only after executing a bond, with or without sureties, to appear before the magistrate if required. But if the person is not a resident of India then the bond should be secured by a security or securities resident of India.

Section 42(3) says that if true name or address of the person is not found within twenty-four hours or if he fails to execute the bond or required sureties then he has to be presented before the magistrate falling within the jurisdiction.

Procedure of arrest by a private person

The procedure of arrest by a private person is expressly provided in Section 43 of the Criminal Procedural Code.

Section 43(1) states that a private person can arrest another person who commits a non-bailable offence or any proclaimed offender and without wasting any unnecessary time can be taken to a police officer and in the absence of the officer the accused has to be taken to the nearest police station.

Section 43(2) says that if the arrest of that person comes under Section 41, the police officer shall re-arrest him.

Section 43(3) provides that if there is sufficient reason to believe that he has committed a bailable offence and refuses to give his true name or address to the police officer, he shall be dealt with according to the provisions of Section 42. But he shall be released if there is no sufficient reason to believe that he has committed an offence.

is also mentioned that the person arrested cannot be taken to any place other than the police station before presenting before the magistrate. This is provided in Article 22 with Section 56 and Section 76 of the CrPC.

Apart from this, the police officer always has to bear the clear, visible and proper identification of his name which may facilitate his easy identification. As soon as the arrest is made a memo should be prepared which is to be attested by at least one witness and countersigned by the person arrested. 

The arrested person also has the right to consult an advocate of his choice during interrogation under section 41D and Section 303 of CrPC. Apart from these, there are many other rights and procedures mentioned in the further part of the article.

Search of an arrested person

Section 51(1) provides that the person arrested can be searched for articles on the body and the receipt of all those articles is to be provided to that person.

Section 51(1) says that in case of a search of female, it will happen only by a female maintaining some amount of decency. 

Seizure of offensive weapons

The officer or the person arresting has the power to seize any offensive weapon which he possesses and deposit all weapons to the court or the officer before whom the person making the arrest is required by the Code to produce the person arrested(Section 52).

who is liable for unlawful arrest and can be made guilty for wrongful confinement and claim damages through a civil suit.

Conclusion

Rights are available to every citizen of the country. Even a person who is accused of an offence possesses various rights some of which are fundamental in nature. The accused can in case of non-compliance of these provisions approach the court where remedy is available. On the other hand, the police authorities are required to follow the procedure given in Chapter V of the Code of Criminal Procedure(CrPC).