Open Access Research Article
Arrest Of A Person Under Criminal Procedure Code,1973
Published Paper
Article Details
ARREST
OF A PERSON UNDER CRIMINAL PROCEDURE CODE,1973
SUBMITTED
BY : DISHANT PATIL &
SUSHRUT
KUVALEKAR
DHARMAVEER ANAND DIGHE SCHOOL OF LAW,
UNIVERSITY OF
MUMBAI THANE SUB-CAMPUS
ABSTRACT
This Article is based on the study of
arrest, procedure of arrest, duties of the police officers and the rights of
the arrested person. Initially the article addresses the meaning of arrest,
which propounded as apprehension or restraint or the deprivation of one’s liberty. Then it discussed the
historical background of arrest from ancient, medieval to colonial period in
India. Further, it discussed the objectives of the arrest which includes
protecting individual’s rights and properties, maintaining law and order in the
society. Then it discussed how the arrest made is necessary. Then it discussed
the procedure of arrest. Then it
discussed the duties of the police officers and the rights of the
arrested person. There are multiple case laws, which provide us with several guidelines of arrest. Further the
information collected by the researcher is from both the primary sources and
secondary sources. The primary sources include responses collected from 42
individuals in the form of questionnaire. Later the secondary sources include
information collected from various books, e-sources, websites, and research
articles
.
Key words: Arrest,
Objective of arrest, Duties of police officer, Rights of arrested person.
1.1 INTRODUCTION
The
term “arrest” derives from the French word “Arreter” which means “to stop” or
“stay” and signifies a restraint on a person’s movement. In common parlance,
the word arrest means the “apprehension or restraint or the deprivation of
one’s liberty”[1]. It is “some kind of stopping
of a person by authority of law”, primarily made “for the purpose of bringing a
prosecution against the person arrested”[2].
In arrest, a person is deprived of his freedom, at least, until there is a
judicial review of the arrest. In 1964, a study conducted by the Human Rights
Committee on the right of person free from arbitrary arrest, detention and
exile defined arrest as, “The act of taking a person into custody under the
authority of the law or by compulsion of another kind
and
includes the period from the moment he is placed under restraint up to the time
he is brought before an authority competent to order his continued custody or
to release him.”
There
was no specific definition of ‘arrest’ under the Indian legal system. However,
the Supreme Court defined the term ‘arrest’ occurring in Article 22 of the
Constitution of India, 1950 in State of
Punjab v. Ajaib Singh [3]. The Court defined
it as “indicating physical restraint of a person under the authority of the law
in respect of an alleged accusation or default or violation of the law”. The
Supreme Court in State of Haryana v. Dinesh Kumar [4],
held that the term arrest means restraining liberty of a person and hence
submitting a person in custody amounts to arrest. An element of coercion by the
State can be inferred as inherent in the idea of arrest.
Eg
: If a police officer apprehends a pick pocket , he is arresting the pick
pocket. When a dacoit apprehends a person with a view to commit robbery, the
dacoit is not arresting that person but wrongfully confining him. Further every
compulsion of physical restraint is not arrest.
1.2
Historical Background
In
ancient India, legal systems varied across different regions and periods. The
concept of arrest was present, often in the context of maintaining law and
order within kingdoms and empires. Legal codes such as the Manusmriti and
Arthashastra provided guidelines for law enforcement and punishment, including
provisions for apprehending individuals suspected of crimes.
During
the medieval period, various dynasties and rulers established their own systems
of justice. The concept of arrest continued to exist, with authorities
exercising the power to detain individuals suspected of crimes. These practices
were often influenced by religious and cultural norms prevalent at the time.
The
development of modern legal systems in India was significantly influenced by
British colonial rule. The British introduced legal codes and procedures,
including laws governing arrest and criminal procedure. The Code of Criminal
Procedure (CrPC) enacted in 1861, during British rule, laid down procedures for
arrest, investigation, and trial.
After
gaining independence in 1947, India underwent significant legal reforms. The
CrPC was revised and updated to reflect the principles of justice, fairness,
and human rights. The Constitution of India, adopted in 1950, enshrines
fundamental rights and provides protections against arbitrary arrest and
detention.
1.3
Objectives
Following
are the objectives for arresting a person:-
1. Protecting
Individual and property:
Arresting individuals who
pose a threat to others or their property helps ensure the safety and security
of the community. By removing potential harm-doers from society, law
enforcement protects both individual citizens and their belongings from harm
and damage.
2. Maintaining
law and order in the society:
Arrests play a pivotal
role in upholding societal norms and regulations. When individuals break the
law, arresting them serves as a deterrent to others and reinforces the
importance of adhering to legal standards. This helps maintain a peaceful and
orderly environment for all members of society.
3. Delivering
Justice:
Arrests are a crucial
step in the criminal justice system to ensure that those who commit crimes are
held accountable for their actions. By arresting and subsequently processing
offenders through the legal system, justice is served, providing closure to
victims and their families and reinforcing faith in the rule of law.
4. Protecting
the right of the accused:
Arrests are conducted
with an emphasis on respecting the rights of the accused. Law enforcement
ensures that individuals are treated fairly and their rights, such as the right
to legal representation and due process, are upheld throughout the arrest and
subsequent legal proceedings.
5. Enforcing
court order:
Arrests are sometimes
made to enforce court orders, such as warrants or injunctions. By apprehending
individuals who have violated these orders, law enforcement ensures that
judicial decisions are respected and complied with, maintaining the integrity
and authority of the court system.
6. Punishing
the offender:
Arrests serve as the
initial step towards holding offenders accountable for their actions. Through
arrests, law enforcement initiates the process of bringing offenders to
justice, which may ultimately lead to penalties, fines, or imprisonment as
prescribed by law, ensuring that there are consequences for unlawful behaviour.
2.1 Overview of Statutory Provisions
of Arrest
A. Section 41[5]of CrPC, 1973:
Section
41(1)(a), explains that any police officer can arrest any person without a
warrant and without a order from a magistrate if that person has committed a
cognizable offence in presence of a police officer. Section 41(1)(b) explains
that if any reasonable complaint has been made or credible information has been
received or a reasonable suspicion exists against a person that he has
committed a cognizable offence then the police officer can arrest that person
without warrant and without a order from a magistrate. As seen in the case of Pradeep Kumar Tiwari v/s State of NCT of
Delhi [6],The Delhi Court held, that an effect of person’s arrest should be done
by the police officer according to the Section 41(1)(d) of CrPC. More so,
Section 41 divides the cognizable offence in two categories: offences
punishable with imprisonment upto seven years and offences punishable with
imprisonment for more than seven years or death, with or without fine. The
arrest of an accused person cannot be effected by the police officer only on
his satisfaction that such person had committed the offence punishable as
aforesaid. Before making the arrest, a police officer has to further satisfy
himself that such an arrest is necessary,
a. Prevent
the commission of further offence by the person.
b. For
proper investigation of the person.
c. To
prevent disappearance of evidence by the person.
d. To
prevent that person from threatening/ inducing/ promising any other person who
is acquitted with the fact.
e. Without
arrest, the police believes that he cannot secure that person’s presence in the
court.
The
Police Officer can arrest a person without warrant if he has committed the said
offences:
a. Any
person has been proclaimed under CrPC, 1973 or by an order of the state government
[7];
or
b. When
a person is found in possession of stolen property or such thing [8];
or
c. Any
person who has either obstructed the police officer or escaped or attempt to
escape from lawful custody [9];
or
d. Any
person who is reasonably suspected to be a deserter of a Armed Forces [10];
or
e. If
reasonable information is received by the police regarding commitment of an
offence outside India and such a person is liable to be apprehended in India [11];
or
f. If
a released convict commits breach of rule under Section 356(5) of CrPC [12];
or
g. A
requisition is received from any police officer that a reasonable complaint,
credible information, reasonable suspicion against a person who has committed
offence outside India [13].
Section
41(2), explains that subject to Section 42 CrPC no person can be arrested by a
police officer without warrant if he has committed non-cognizable offence or
against whom a complaint has been made or credible information has been
received or reasonable suspicion exists. The person can only be arrested under
a warrant or order of magistrate by a police officer.
The
2008 Amendment inserted Section 41 A in the CrPC which was further amended in
2010 to replace the word “may” with “shall”.
As per Section 41 A of CrPC, the notice of appearance before a police
officer can be made if reasonable complaint, credible information, reasonable
suspicion is found against the person for committing a cognizable offence. If
such a person does not comply with the notice then he can get arrested by the
police officer. But if the person complies with the notice then he shall not be
arrested by the police officer for the offences referred to in the notice. If
the person fails to comply with the terms of the notice then the police officer
may arrest him subject to such orders as may have been passed by a competent
court. The Supreme Court in Arnesh Kumar
case [14] directed that issuing a
notice of appearance under section 41A was thoughtfully implemented. Police
officers should not arrest an individual unnecessarily, without any justifiable
grounds and the Magistrate should not authorise detention in a casual and
mechanical manner.
Section
41 B of CrPC, 1973 laid the procedure of arrest and the duties of the police
officer making the arrest. Every police officer while making arrest shall-
a. Bear-
accurate, visible and clear identification of his name.
b. Should
prepare a memorandum which should be attested by atleast one witness- who can
be family member or respected member of locality, and it should be
countersigned by the person arrested.
c. The
person arrested should be informed- that he has the right to have his friend or
relative informed about his arrest.
Supreme
Court in the case of Joginder Kumar V/s
State of UP [15]
has laid down some comprehensive guidelines which are as follows:
1. An
arrested person being held in custody has a right to have a one friend,
relative or any other person informed about the arrest and the place of
detention. The arrested person shall be informed of this right when he is
brought in the police station.
2. An
entry shall be made in the diary as to who was informed of the arrest.
3. The
reasons for making an arrest have to be made in the case diary.
4. It
is the duty of the Magistrate, before whom the arrested person is produced, to
satisfy himself that the above requirements have been complied with.
Supreme Court in the case
of DK Basu v/s State of West Bengal [16] laid down the
following guidelines for the arrest and detention of individuals:
1.
Police officers involved in
the arrest and interrogation of an arrestee must wear clear, visible
identification and name tags with their designations. Details of all police
personnel handling the interrogation must be recorded in a register.
2.
The police officer affecting
the arrest must prepare a memo of arrest at the time of arrest. It should be
witnessed by at least one person who may be a family member or a respected
individual from the area where the arrest occurs. The memo should also be
countersigned by the arrested person and include the time and date of the
arrest.
3.
Any person arrested and held
in custody has the right to have a friend, relative, or someone is known to
them informed about their arrest and detention as soon as possible unless the
witness to the arrest is such a friend or relative.
4.
The police must notify the
time, place of arrest and place of custody of the arrestee to the next of kin
if they live outside the district or town. This notification should be made
through the Legal Aid Organisation in the district and the concerned area’s
police station within 8 to 12 hours after the arrest.
5.
The person arrested must be
informed of their right to have someone informed of their arrest or detention
as soon as they are taken into custody.
6.
An entry regarding the arrest
must be made in the case diary at the place of detention. This entry should
also include the name of the person informed about the arrest (next of kin) and
the names and details of the police officials responsible for the arrestee.
7.
The arrestee, upon request,
should be examined at the time of arrest and any visible injuries on their
body, major or minor, should be documented. Both the arrestee and the police
officer should sign an “Inspection Memo,” and a copy should be provided to the
arrestee.
8.
The arrestee should undergo a
medical examination by a qualified doctor every 48 hours during their custody.
These doctors should be on a panel of approved doctors appointed by the
Director of Health Services in the respective State or Union Territory. Such a
panel should be prepared for all Tehsils and Districts.
9.
Copies of all documents,
including the memo of arrest, should be sent to the Magistrate for their
records.
10. The arrestee may be allowed to meet with their attorney during the
interrogation, although not necessarily throughout the entire process.
11. Police control rooms should be established at all district and
state headquarters. The officer in charge of the arrest must communicate information
about the arrest and the place of custody of the arrestee to the control room
within 12 hours of effecting the arrest. This information should be displayed
on a visible notice board at the control room.
Section 41 C of CrPC, 1973 explains that a control room should be
established by every state government at every district and state level. The
State Government should ensure that the name and address of the person arrested
as well as the name and designation of the police officer should be displayed
on the notice board. As per Section 41 D of CrPC, any person
who is arrested and is interrogated by police, legislature has cast duty upon
the arresting officer that accused shall be entitled to meet with his advocate
of his choice during interrogation. These provisions were directly based on the
guidelines given by the Supreme Court in D.K
Basu vs State of West Bengal.
B. Section
42 of CrPC, 1973 [17]
explains that arrest on refusal to give name and address. When any person who
in the presence of police officer who has committed or is accused of committing
any non- cognizable offence, refuses to give or gives false name and address to
the police officer he shall be arrested. But if the person’ true name and residence
is ascertained, then he shall be released on his executing a bond, with or
without sureties, to appear before a magistrate if so required. If such person
is not a resident of India, then the bon shall be secured by a surety or
sureties resident in India.
C. Section 43 of CrPC, 1973 [18] lays
down the arrest made by private persons and the procedure on such arrest. Any
private person can arrest a person who in his presence commits a non-bailable
and cognizable offence or is a proclaimed offender. Further, that person has to
make over the arrested person to the police officer or to the nearest police
station. If the arrest of the person comes under the provision of Section 41,
he shall be re-arrested by the police. If the person arrested has committed
non-cognizable offence and refuses to give his true name and address to the
police officer, then he shall be dealed as per the provision of Section 42 of
CrPC.
D. Section
44 of CrPC, 1973 [19]
lays down the power of arrest by magistrate where a person commits an offence
in his presence. The Magistrate whether Executive or Judicial, within his local
jurisdiction, can himself arrest the person, or alternatively direct another
person to do so. The magistrate whether, judicial or executive, can make an
arrest or direct the arrest of a person for whom he is competent at the time
and in the circumstances to issue a warrant.
E. Section
46 of CrPC, 1973 [20]
lays down the procedure for how the arrest is made. The arrest of a person can
be made by actually confining/ touching the person’s body. In case of arrest of
a woman, if she submits to the custody an oral intimidation it shall be
presumed that she has accepted her custody. If the person forcibly resists to
arrest him, then the police can make the arrest by using a necessary force. But
the force applied should not cause the death of the person if the person is not
accused of life imprisonment or death. No women shall be arrested after sunset
and before sunrise except in some circumstances the women police officer after
making a written report and obtaining permission from the Judicial Magistrate
First Class (JMFC) can arrest a women at any time.
In
the case of Christian Community Welfare
Council v/s State of Maharashtra [21], Bombay High
Court held that no female persons shall be detained or arrested without the
presence of lady constable and in no case shall be arrested after sunset and
before sunrise.
In
the case of Citizen for democracy v/s
State of Assam [22]
The Hon'ble Court observed that 'we declare, direct and lay down as a rule
that handcuffs or other fetters shall not be forced on a prisoner, convicted or
under trial while lodged in a jail anywhere in the country or while
transporting or in transit from one jail to another or from jail to Court and
back.
In
the case of Rajkumari v/s SHO Noida [23] The Court ruled that while arresting a female accused,
all efforts should be made to keep a lady constable, but in circumstances where
the arresting officers are reasonably satisfied that such presence of a lady
constable is not available or required and such a requirement would cause
unreasonable delay affecting the validity or fruit of arrest then the officers
would be permitted to arrest such a female accuse at any time of the day and
even without the presence of a lady constable, however the burden of proof is
on such arresting officers.
In
the case of Bharti S Khandar v/s Maruti
Govind Jadhav [24]
states that a woman cannot be arrested after sunset and before sunrise,
except in unavoidable circumstances. This provision ensures the protection of
women's rights during the arrest process.
2.2 Duties of police officer
1. Person
arrested to be informed grounds of arrest [25]:
Every police officer
arresting any person shall communicate with him the grounds for which he has
been arrested.
2. Obligation
of person making arrest to inform about arrest, etc. to a nominated person [26]:
Every police officer
making an arrest shall give the information of the person arrested to any of
his relative, relatives or any such person as may be described by the arrested
person for giving such information.
3. Search
of arrested person [27]:
The search of an arrested
person is done by the police officer when that person is unable to furnish
bail. All the articles which were found on the person’s body, must be place in
safe custody by the police officer. In case the person arrested is a female,
then the search of such person should be done by a women police officer. And
the search should be done in a decent way.
4. Power
to seize offensive weapons [28]:
The police officer
arresting the person has the power to seize any offensive weapon which is found
with the person arrested and should be given to the court.
5. Health
and safety of arrested person [29]:
It is the duty of the
police officer having the custody of an accused to take reasonable care of the
health and safety of the accused.
6. Discharge
of a person apprehended [30]:
The person arrested by a
police officer should not be discharged except on his own bond, or on bail, or
under the special order by the magistrate.
7. Power,
on escape, to pursue and retake [31]:
If a person has escaped
from lawful custody or is rescued then the police officer has the power to
rearrest him from any place in India.
8. Arrest
to be made strictly according to the code [32]:
No arrest shall be made
except in accordance with the provisions under CrPC or under any other law for
time being in force for arrest.
2.3
Rights of the Accused Person
1. No
necessary restraint [33]:
The
person arrested shall not be subjected to more restrain then is necessary to
prevent his escape.
2. Right
to bail [34]:
Every
Police Officer arresting any person without warrant other than a person accused
of non-bailable offence the police officer shall inform the person arrested
that he is entitled to be released on bail.
3. Right
to meet an advocate [35]:
Any
person who is arrested and is interrogated by police, legislature has cast duty
upon the arresting officer that accused shall be entitled to meet with his
advocate of his choice during interrogation.
4. No
deprivation of Fundamental Rights [36]:
Every
accused has the right to life and personal liberty, including the right to a
speedy trial, and ensures that the delay in legal proceedings does not unduly
prejudice the accused
5. Right
to free and fair trail [37]:
Every
accused has the inherent right to a free and fair trial. This implies the right
to be heard without prejudice to ensure that no bias hinders achieving justice.
2.4
Medical Examination when required
1. Examination
of accused by medical practitioner at the request of police officer [38]:
The
examination of accused is done by a registered medical practitioner when
requested by police officer who is not below the rank of sub-inspector. The
examination is done for getting any evidence related to the commission of the
offence. If the accused person is a female then the examination should be done
by the female registered medical practitioner.
2. Examination
of person accused of rape by medical practitioner [39]:
The
examination of person accused of rape or attempt to rape should be done by
registered medical practitioner of government hospital. The examination is done
when requested by police officer who is not below the rank of Sub-Inspector as
well as for getting any evidence related to commission of the offence. Any
other registered medical practitioner can conduct this examination if any of
them if any of them is not available within a radius of 16km in which the
offence is committed. The examination
report of the accused should be submitted by the medical practitioner to the
investigating officer. The investigating officer will forward such report to
the magistrate u/s 173 of CrPC when the charge sheet is being prepared.
3. Examination
of arrested person by medical officer [40]:
When
any person is arrested he shall be arrested by a medical officer who is in the
service of Central or State Government and in case of his absence the medical
practitioner would examine the person arrested. The medical examination of the
accused should be done as soon as he is arrested. The Medical officer or
medical practitioner examining the arrested person should make a record
mentioning if there are any injuries or marks of the violence on the body of
the person arrested along with appropriate time when such injuries or marks are
being inflicted. The examination report should be given to the arrested person
or any person nominated by the arrested person.
3.1
Research Methodology
A. Primary
Data:
The
researcher obtained the primary source of data by conducting an empirical study
on seeking responses from the general public based on an online questionnaire.
The analysis of the data was conducted using a statistical tool, allowing for
the development of relevant conclusions and recommendations. The researcher has
used the empirical type of research which is done by a survey method. In this
research paper, the researcher has taken responses from 42 participants for
conducting the survey on arrest. Statistics is based on percentage analysis.
B. Secondary
Data:
The
researcher also collected information from secondary sources of data such as
books, journals, e-sources, websites and research articles. Data was aggregated
using the internet.
Figure 1:
In the above given graph,
it can be seen that out of 42 responses, 73.8% responses are saying No, whereas
26.2% are saying Yes. Hence, it indicates arrest is not an illegal
detention of person.
Figure
2:
In the above given graph,
it can be seen that out of 42 responses, 76.2% of the responses are saying Yes,
whereas 23.8% of the responses are saying No. Which indicates that majority
of the people knows the procedure of arrest.
Figure 3:
In the above given graph,
it can be seen that out of 42 responses, 66.7% of the responses are saying Yes,
whereas 33.3% of the responses are saying No. Which indicates that
majority of the people knows the provision of arrest.
Figure 4:
In the above given graph,
it can be seen that out of 42 responses, 73.8% of the responses are saying Yes,
whereas 26.2% of the responses are saying No. Which indicates that most
of the people are aware of the rights of arrestee.
Figure
5:
In the above given graph,
it can be seen that out of 42 responses, 76.2% of the responses are saying Yes,
whereas 23.8% of the responses are saying No. Which indicates that
most of the people are aware of the duties of police officer.
Figure
6:
In the above given graph,
it can be seen that out of 42 responses, 81% of the responses are saying Yes,
whereas 19% of the responses are saying No. Which indicates that
most of the people think that the law related to arrest are justifiable.
Figure
7:
In the above given graph,
it can be seen that out of 42 responses, 59.5% of the responses are saying Yes,
whereas 40.5% of the responses are saying No. Which indicates that some
of the people are only aware of the guidelines given in D.K Basu vs State of
West Bengal.
Figure
8:
In the above given graph,
it can be seen that out of 42 responses, 69% of the responses are saying Yes,
whereas 31% of the responses are saying No. Which indicates that only
few people are aware of the guidelines given in Arnesh Kumar v/s State of
Bihar.
Figure
9:
In the above given graph,
it can be seen that out of 42 responses, 66.7% of the responses are saying Yes,
whereas 33.3% of the responses are saying No. Which indicates that majority
of the people think that there are loopholes in laws related to arrest and
therefore shall be Amended.
3.2
Suggestion
From
the data collected following are the suggestion of the people regarding laws of
arrest in India:
1.
Arrest is not an illegal detention of
person.
2. Arrest of a person is necessary for
betterment of the societies and also to reduce the crime rate in India.
3. The arrest should be made by the police
officer only after conducting proper procedures for administration of the
justice.
4. Laws related to arrest shall be Amended.
5. The procedure and provisions for arrest are
fine with what has been given under CrPC. Although strict actions should be
taken against those officials who do not follow these provisions, in case of
cognizable offences in my opinion.
6. Arrest is a crucial tool in administering
justice, ensuring individuals comply with the law and preventing flight from
justice. However, it should be used judiciously, balancing the need for public
safety and the presumption of innocence until proven guilty. Overuse or misuse
of arrest powers can infringe on civil liberties and undermine trust in the
legal system. So, it's essential to strike a balance and ensure that arrests
are made based on clear evidence and legal principles.
7. A major purpose of arrest in India is to
bring the person before court and secure administration of justice. An arrest
also serves the purpose of notifying the society that a particular individual
has committed an act which is against the society and act as a remark to deter
crime in future. Hence arrest should made necessary.
8. There is no room for arbitrariness, fantasy,
or oppression in the "right, just, and fair" application of the
process outlined in Article 21. It is anticipated that the arrest will be
warranted in addition to being lawful. Arrested individuals Fundamental Rights
are acknowledged even in the Indian Constitution.
9. Arrest should not be based on the reputation
of a person and the law should be equal to everyone! And Our criminals should
know Arrest is not a shelter for them. In India the gangsters do crime to get
safe from the other opponents and for example many of the gangsters in Mumbai
are openly doing crimes and they don't get a serious punishment for their crime
because they get loopholes from our laws and it's not right. To decrease the
crime rate we should make our laws strict. And the bigger criminals get good
facilities in the Jail and the innocent people whose crime is not proven yet
feel the Jail like hell for them and therefore the crime rate increases.
3.3
Opinion
The
police officer shall arrest a person with order of the magistrate in some
situations and arrested person shall be presented before magistrate within
twenty-four hours and cannot be detained beyond the said period. No person
shall be detained beyond the period of three months expect on the recommendation
of the advisory board .The police officer shall follow the procedures of arrest
and his duties towards accused person. No person shall be illegally detained if
done so then other person representing that person can file a writ of habeas
corpus in the courts .No person shall be subject to false imprisonment or
unlawfully imprisonment and if a person intentionally restricts other persons
movement without legal authority or without persons permission that the
punishment shall be of high degree . An illegal detention is the unjustifiable
imprisonment or unlawful deprivation of liberty by way of arrest for a wrongful
cause or suspicion and continued restriction of freedom by such person in
police custody. The fundamental rights of the prisoners shall not be deprived
resulting in custodial death and also police officer should follow the
guidelines given in D.K Basu v/s state of West Bengal while making an arrest.
Some provisions should be modified such that no one can take advantage of such
provisions Eg:- 498 A IPC, 1860 cruelty by husband or relative of husband this
section being a non bailable and cognizable offence some women were taking advantage
of this section and filling FIR against their husband resulting in arrest of
their husband. Then, later in Arnesh Kumar v/s state of Bihar the court
restricted the police from making arrests solely based on complaints. The
arrest of the women has been properly represented under Section 46 of this code
so that there is no deprivation of the reputation of the women in our society. According
to questionnaire survey conducted we founded that people only know the previous
provisions of arrest.
4. CONCLUSION
The
process of arrest, the procedure involved, and the rights of the arrested
person is crucial for ensuring fairness and upholding the principles of justice.
Arrests are made on reasonable grounds and, in some cases, require an arrest
warrant. During the arrest process, law enforcement officers must adhere to
certain guidelines, such as identifying themselves and informing the individual
of their arrest. Once arrested, individuals have several rights that protect
them including, the right to be informed about the charges against them, right
to meet an advocate and protection against unreasonable seizures and searches. It
is important to note that arrest procedures and rights may vary depending on
jurisdiction, so it is advisable to consult local laws for specific details.
Ultimately, the aim is to balance the interests of law enforcement with the
protection of individual rights, ensuring a fair and just legal system. Lastly,
it can be conclude that even though there are certain provisions regarding how
the arrest should be made and regarding the rights of the arrested person but
this were somehow violated and not been utilised accordingly. The police
officers misuse their powers and also they failed to do their duties properly.
Moreover, the main reason behind it was the unawareness of the people about
their rights. We somehow console ourselves that these protectors of law and
order must be doing right but there are several cases where we witness how they
misuse their power. The police officers misuse their powers and also they
failed to do their duties properly. Moreover, the main reason behind it was the
unawareness of the people about their rights. We somehow console ourselves that
these protectors of law and order must be doing right but there are several
cases where we witness how they misuse their power.
REFERENCES
A. Books-
1. B.
Uma Devi, Arrest, Detention and Criminal
Justice System, Oxford University Press, New Delhi, 2012
2. Glanville
Williams, “When is an Arrest?” 54 The Modern Law Review 408, 408 (1991)
B. Cases-
1. Arnesh
Kumar v/s state of Bihar (2014) 8 SCC 273
2. Bharti
S Khandar v/s Maruti Govind Jadhav WP-453-08
3. Christian
Community Welfare Council v/s State of Maharashtra 1996ACJ199
4. Citizen
for democracy v/s State of Assam 1995 (3) SCC 743
5. DK
Basu v/s State of West Bengal 1997 (1) SCC 416
6. Joginder
Kumar V/s State of UP 1994 SCC (4) 260
7. Pradeep
Kumar Tiwari v/s State of NCT of Delhi C.R.L.L.P. 542/2019
8. Rajkumari
v/s SHO Noida 2003 AIR SCW 5512
9. State
of Haryana v. Dinesh Kumar AIR 2008 SC 1083
10. State
of Punjab v. Ajaib Singh 1953 AIR 10
C. Sites-
[1] B. Uma Devi, Arrest, Detention and Criminal Justice
System, Oxford University Press, New Delhi, 2012.
[2] Glanville Williams, “When is an Arrest?” 54 The
Modern Law Review 408, 408 (1991)
“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 commits, in the presence of a
police officer, a cognizable offence;
(b) against whom a reasonable complaint
has been made, or credible information has been received, or a reasonable
suspicion exists that he has committed a cognizable offence punishable with
imprisonment for a term which may be less than seven years or which may extend
to seven years whether with or without fine, if the following conditions are
satisfied, namely: —
(i) the police
officer has reason to believe on the basis of such complaint, information, or
suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such
arrest is necessary—
(a) to prevent such person from committing
any further offence; or
b) for proper investigation of the
offence; or
(c) to prevent
such person from causing the evidence of the offence to disappear or tampering
with such evidence in any manner; or
(d) to prevent such person from making any
inducement, threat or promise to any person acquainted with the facts of the
case so as to dissuade him from disclosing such facts to the Court or to the
police officer; or
(e) as unless such person is arrested, his
presence in the Court whenever required cannot be ensured, and the police
officer shall record while making such arrest, his reasons in writing:
[Provided that a police officer shall, in
all cases where the arrest of a person is not required under the provisions of
this sub-section, record the reasons in writing for not making the arrest.]
(ba) against whom credible information has
been received that he has committed a cognizable offence punishable with
imprisonment for a term which may extend to more than seven years whether with
or without fine or with death sentence and the police officer has reason to
believe on the basis of that information that such person has committed the
said offence;]
(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) Subject to the provisions of section
42, no person concerned in a non-cognizable offence or against whom a complaint
has been made or credible information has been received or reasonable suspicion
exists of his having so concerned, shall be arrested except under a warrant or order
of a Magistrate.]”
[14] (2014) 8 SCC 273.
[15]
1994 SCC (4) 260
[16] 1997 (1) SCC 416
[17] (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.
(2)
When the true name and residence of such person have been ascertained, he shall
be released on his executing a bond, with or without sureties, to appear before
a Magistrate if so required: Provided that, if such person is not resident in
India, the bond shall be secured by a surety or sureties resident in India
(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.
[18] (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.
(2)
If there is reason to believe that such person comes under the provisions of
section 41, a police officer shall re-arrest him.
(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.
[19] (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.
(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.
[20] (1) In making an arrest the police
officer or other person making the same shall actually touch or confine the
body of the person to be arrested, unless there be a submission to the custody
by word or action: 35
1
[Provided that where a woman is to be arrested, unless the circumstances
indicate to the contrary, her submission to custody on an oral intimation of
arrest shall be presumed and, unless the circumstances otherwise require or
unless the police officer is a female, the police officer shall not touch the
person of the woman for making her arrest.]
(2)
If such person forcibly resists the endeavour to arrest him, or attempts to
evade the arrest, such police officer or other person may use all means
necessary to effect the arrest.
(3)
Nothing in this section gives a right to cause the death of a person who is not
accused of an offence punishable with death or with imprisonment for life.
2
[(4) Save in exceptional circumstances, no woman shall be arrested after sunset
and before sunrise, and where such exceptional circumstances exist, the woman
police officer shall, by making a written report, obtain the prior permission
of the Judicial Magistrate of the first class within whose local jurisdiction
the offence is committed or the arrest is to be made.]
[21] 1996ACJ199
[22] 1995 (3) SCC 743
[23] 2003 AIR SCW 5512
[25] Section 50 of CrPC, 1973
[26] Section 50 A of CrPC, 1973
[36] Article 21 of Indian Constitution
of India, 1950
Article Information
Arrest Of A Person Under Criminal Procedure Code,1973
Authors: DISHANT PATIL, SUSHRUT KUVALEKAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/17
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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