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All About the Procedure of Arrest under CrPc

The word arrest is derived from the French word 'arret' meaning 'to stop or stay'.[1] The term 'arrest' means the apprehension of a person by the legal authority so as to cause deprivation of liberty.

An arrest is an act of apprehending and bringing a person into custody (legal protection or control), typically because the individual is suspected of or has been observed committing a crime.

Various provisions regarding the arrest of an individual by various individuals have been provided under the Code of Criminal Procedures by the Law, these provisions are discussed in the following sections.

Provision Related to Arrest under CrPC

Chapter V of the Code of Criminal Procedure, 1973 deals with the arrest of persons under Sections 41 to Section 60.[2] The essential object of criminal law is to protect society from criminals and from law-breakers.

The arrest is usually made in criminal cases and in civil matters, it is looked upon as the last option. Based upon the employment of warrant issued by a magistrate, Arrest is of two types: an arrest made in view of a warrant issued by a magistrate and an arrest made without such a warrant but in accordance with some legal provision permitting such an arrest as under sec 41, 42 and 151 of CrPC.

The basic procedure to make an arrest has been mentioned under section 46 of the Code of Criminal Procedure, 1973. Sub-section 1 of this section provides that the arresting authority has to actually touch or confine the body of the person to be arrested, and also there can be submitted to custody by words or actions.

For instance, if a person, himself walks to the police station and surrenders, he will be considered under an arrest. Further sub-section 2 says that if a person forcibly resists the arresting authority and attempts to evade the arrest, the arresting authority has the power to use all such means to prevent such an escape.

Regulating sub-section 2, sub-section 3 provides that the provisions of the preceding sub-sections give the arresting authority right to cause the death of a person who is not accused of an offense punishable with death or life imprisonment.[3]

Not only policemen but various other authorities have the powers to arrest an individual according to various provisions of CrPC, including:
  • A police officer with or without a warrant, or
  • A private person, or
  • A magistrate

Arrest by a Police officer

The police officers have been authorized to arrest any person without the warrant ordered by the court under Sections 41, 42, 151 of CrPC.
Section 41 of CrPC provides for those instances where a police officer has been authorized to arrest an individual without a warrant from the magistrate. This happens.

When the individual is:

  1. Involved in any cognizable offense such as murder, rape, kidnapping, theft, etc. or
  2. In possession, without, lawful excuse, of any housebreaking weapon or
  3. Proclaimed as an offender either under CrPC or by order of the State Govt. or
  4. In possession of any stolen property or
  5. Obstructing a police officer while in the execution of his duty or who has escaped, or attempts to escape, from lawful custody
  6. Reasonably suspected of being a deserter from any of the Armed forces of the Union
  7. Concerned with any law relating to extradition
  8. Involved in breach of any rule made under sub-section (5) of Section 356 CrPC
  9. The one whose arrest's requisition has been received from another police officer specifying the person to be arrested and the offense and other cause for which the arrest is to be made.[4]

Section 42 specifies yet another situation where a police officer can arrest a person. According to this section, if a person commits an offense in the presence of a police officer or where he has been accused of committing a non-cognizable offense and refuses, on demand being made by a police officer to give his name and residence or gives false name or residence, such person may be arrested but such arrest shall be only for the limited purpose of ascertaining his name and residence.

After such ascertaining, he shall be released on executing a bond with or without sureties, to appear before a magistrate if so required. In case the name and residence of such person cannot be ascertained within 24 hours from the date of arrest or if such person fails to execute a bond as required, he shall be forwarded to the nearest magistrate having jurisdiction.[5]

Also, Section 151 of The CrPC, 1973 provides for the arrest of a person who is suspected to commit any cognizable offense by the police officer without a warrant from the magistrate, if the police officer finds no other way of preventing the execution of such offense. A person arrested under this section can be detained for more than 24 hours from the time of arrest unless such extended detention is required under provisions of CrPC. [6]

Arrest Made by Magistrate

Section 44 of CrPC provides for the provision of an arrest made by a magistrate. The sub-section 1 of this section provides that when an offense is committed in the presence of the magistrate within his jurisdiction, he may himself arrest or order someone to arrest the offender and may commit the offender to custody. Under sub-section 2 the magistrate can arrest or order for the arrest of a person for whose arrest he is competent to issue a warrant.

Under sub-section (1) of Code of Criminal Procedure, 1973 the Magistrate has been given the power to arrest a person who has committed an offense in his presence and also to commit him to custody, while under sub-section (2) of Section 44 Cr. P. C the Magistrate has full power to arrest a person suspected of having committed an offense but has not been given any power to commit him to custody.[7]

Further, Section 107 of CrPC provides the power to the Executive Magistrate who has received information for arresting a person who is likely to commit a breach of the peace or disturb public tranquillity in any way, to show cause why he should not be ordered to execute a bond with or without sureties for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.[8]

Arrest by Private Persons
Section 43 of CrPC provides the procedure for arrests made by private individuals. This section gives the right to a private person to arrest on the individual, who in his/her presence, commits a cognizable or a non-bailable offense or who is a 'proclaimed offender' The private person can arrest such an offender to hand over his custody to the nearest police station and if the police officer finds such person coming under the provisions of section 41, the police officer has to re-arrest the offender. [9]

Provision for Members of Central Armed Forces
Section 45 of CrPC exempts the members of the Armed forces from being arrested for anything done by them in the discharge of their official duties except after obtaining the consent of the government. Sub-section 1 of this section provides that sections 41 to 44 of CrPC would not be applicable on members of armed forces of the union and they cannot be arrested for anything done by them during the discharge of their official duty, but they can be arrested after taking consent of the central government. If a member of Armed Forces of the union has been conferred with a responsibility to maintain public order in a specific state or region, then the state government of the state where the members are deployed may make the provisions of section 45(1) applicable, just like the Central Government does, for such members of Armed forces. [10]

Special Provision Regarding Arrest of Females
Women have been given some special privileges which have to be necessarily followed while carrying out their arrest.
The general rule is that Females are not be arrested without the presence of a lady constable and further no female is arrested after sun-set. But there is an exception in those cases where crime is very heinous and arrest is important as in these cases arrest can be made upon special orders based on the facts of such cases. Separate lock-ups are to be provided to women.
Additionally, section 53 sub-section 2 of CrPC provides that only registered female medical practitioners have to be appointed for medically examining female accused.[11]

D.K. Basu's Case and Rights of Arrested Person
In 1996, a landmark judgment was passed in the D.K. Basu v. State of West Bengal [12]case, provided for certain guidelines which were to be necessarily followed in all cases of arrest and detention. This case additionally discussed certain rights which have been provided to the arrested or detained person. This was done so as to eliminate the incidences of police aristocracies and cases of custodial deaths. Some of the important points which were held by the court while deciding upon this case have been listed below:[13]

Right to be informed:
As Per Section 50 of the Criminal Procedure Code and Article 22 of the Indian Constitution which provides certain rights to detained persons, the right to be informed about the grounds for arrest is a basic right. It is the police officer's responsibility to notify and tell the arrested person whether the offense is bailable or not. [14]

Essentials of a warrant:
In non-cognizable offenses, an arrest is made with a warrant, and the arrested person has the right to read the warrant under Section 75 of the CrPC[15]. A warrant of arrest must satisfy specific conditions, including being in writing, signed by the presiding officer, and bearing the seal of the court, as well as the accused's name and address and the offense for which the arrest is made. If any of these are absent, the warrant is invalid and illegal.

Memo of Arrest:
The police officer must wear a distinct and legible identification allowing for simple recognition. At the moment of arrest, a memo of arrest must be written, which must be certified by at least one witness, who might be a family member or a member of the local area where the arrest is made and countersigned by the detained individual.

Right to choose an advocate:
Under section 41D and section 303[16] CrPC, the arrested person has been given a right to meet an advocate of his choice during the course of interrogation.

Right to Inform Relative:
Under section 50 of CrPC, an arrested person has a right to inform a family member, relative, or friend about his/her arrest.

Right to be not Detained more than 24 Hours:
To avoid illegal arrests, arrested persons have the right not to be kept for more than 24 hours without being produced before a magistrate. It is a basic right conferred by Article 22 of the Indian Constitution and backed by Sections 57[17] and 76 [18]of the CrPC.

Right to be Medically Examined:
Under Section 55A[19] and 54 of CrPC[20], an Arrested person has been given the right to be medically examined by a medical officer when he is produced before a magistrate or at any time while in custody, with a view to establishing that the offense with which he is charged was not committed by him or that he was subjected to physical torture.

Right to Remain Silent:
Under Section 20(3) of the Indian Constitution, an arrested individual has the right to remain silent, so that the arresting authority cannot elicit self-incriminating statements from him against his will or without his agreement.

Conclusion
Various provisions have been laid down under CrPC and Indian Constitution in order to ensure smooth functioning and to prevent any sort of bewilderment while carrying out the arrest of any individual. Responsively, various rights have been granted to the arrested persons so as to ensure that they are not subjected to any sort of exploitation by the arresting authority. Thus, the law has emphasized both the arrested and the arrestee.

End-Notes:
  1. (Online Etymology Dictionary) accessed on 18 March 2022.
  2. Hemant More, 'Section 41 of CrPC: Arrest without Warrant' (The Fact Factor, 9 June 2020) accessed on 18 March 2022.
  3. The Code of Criminal Procedure, 1973, s. 46 .
  4. CrPC, s.41 .
  5. CrPC, s. 42 .
  6. CrPC, s. 151 .
  7. CrPC, s.44 .
  8. CrPC, s.107 .
  9. CrPC, s.43
  10. CrPC, s. 45 .
  11. CrPC, s. 53(2) .
  12. D.K. Basu v. State of West Bengal (1997) 1 SCC 416.
  13. https://www.lawjure.com/case-summary-d-k-basu-vs-the-state-of-west-bengal/ lawjure, 3 feb 2021, yashwant singh
  14. CrPC, s. 50 .
  15. CrPC, s. 75 .
  16. CrPC, s. 303
  17. CrPC, s.57 .
  18. CrPC, s. 76 .
  19. CrPC. s. 55A .
  20. CrPC, s.54 .

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