CrPC - All you need to know about Arrest

Objective

This post will cover below things
  1. What is Arrest ?
  2. Why to Arrest ?
  3. Who Can Arrest ?
  4. When arrest can be made without warrant?
  5. Procedure of Arrest : Can police use force ?
  6. What next After Arrest ?
  7. Rights of Arrested Person
  8. DK Basu Case and it's relevance
  9. Control Rooms 
  10. What happens when arrest is unlawful or provisions not followed ?

What is Arrest

To put it in simplest form, it mean taking away a liberty of a person lawfully. It's physical restraint or confining a person. When liberty of person is taken completely then we may call that person is under arrest.

Why to Arrest

Again, for simple reason that justice must be served when someone commits an offense and hence the person who may have committed an offence needs to arrested. Below are some of the objectives given in Kelkar's for arrest
  1. For producing accused in court in trial
  2. For preventive further crime by accused
  3. For obtaining correction information about accused such as name and trial
  4. For removing hindrance to police when someone obstructs police functioning
  5. For retaking a person escaped from custody

Who can Arrest 

Police

Police can arrest as per section 41 and 42. Police have power to arrest without warrant in cognizable cases as per section 41. We will see section 41 in detail shortly when we will discuss when police can arrest without warrant.

As per section 42, police can arrest without warrant in non cognizable cases also. But such an arrest can be made when offense is committed in presence of Police officer and police officer inquires about name and address and offender refuses to give such detail. Such arrested person has to be produced before magistrate within 24 hours if not released.

Private Person

You can arrest another person. Yes.

Section 43 empowers private person to carry on arrest. However you can only arrest when offender is committing non-bailable and cognizable offense. Apart from this you can arrest a proclaimed offender. Proclaimed offender is announced by Court.

If you make an arrest you have to take that person to nearest police station.

Magistrate

When offense is committed in presence of magistrate executive or judicial, person can be arrested by magistrate himself. 

Also if Magistrate is competent to issue arrest warrant of some person, then such person can be arrested by magistrate or he may direct other person to arrest.

When arrest can be made without warrant?

Section 41 provides in detail when person can be arrested without warrant. There are 7 scenarios in which police can arrest without warrant.

  1. When cognizable offense is committed in presence of police officer
  2. When reasonable complaint is made, Credible information is received or reasonable suspicion exists. This we will see in detail shortly.
  3. Arrest of Proclaimed offender. 
  4. When person is found with property which appears stolen
  5. When armed person left the army without permission
  6. When person obstruct a police officer on duty, or who had escaped police custody unlawfully
  7. When offense committed outside India, and such person need to be detained as per extradition treaty or otherwise
  8. When released convicts breaks the rule as per section 356(5)
  9. When other police officer requests to police in whose jurisdiction offender resides. In this case requesting police officer must have an authority to arrest accused without warrant.
As far as the scenario 2 is concerned, there are separate provision for arresting for offense where punishment is less than 7 years and when punishment is more than 7 years.

If punishment is less than 7 years and police officer goes to arrest without warrant he has to take care of below things


  • Police officer must have reason to believe the person has committed an offense
  • Police officer should satisfy the below things for arrest
    • to prevent such person from committing any further offence; or
    • for proper investigation of the offence; or  
    • prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or 
    • 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 
    • as unless such person is arrested, his presence in the Court whenever required cannot be ensure

Police officer has to record the reason for arrest in above case.

Apart from Section 41, as per section 42 police can arrest a person in non-cognizable offense too if accused refuses to give name and address.

In nutshell, above is the summary when police can arrest without warrant

Procedure of Arrest : Can police use force ?

Person who is arrested should actually be touched or be confined to call it an arrest. If person submits himself to arrest then "touching" is not necessary.

As far as the woman's arrest is concerned, it's categorically stated that woman cannot be arrested before sunrise or after sunset unless there are exceptional circumstances. And in such exceptional circumstances woman police officer should be there for arrest.

Can Police use force while Arrest? Of course they have to if person is resisting the arrest. However use of force should not be such that person dies while arresting if he is not accused in offense punishable with death. 

Also as per Section 47, police officer can break into house or any place where accused resides and don't open the door!

Section 48 states that Police officer can track or pursue throughout to arrest a person.

What next After Arrest ?

After arrest person is taken to Police Station/Magistrate. 

Search

Arrested person can be searched by police officer. Police can seize any materials excluding necessary wearing apparel. For example if accused is arrested for drug related offense, and if any drug is found in his pocket police can seize that.  Also police officer has to prepare receipt about articles seized. (Section 51)

If arrested person can take a bail, then such search cannot be done.

As per Section 52, Police can seize the offensive weapon and take them to court

Medical Examination

If Police officer thinks that if medical examination is carried out of arrested person, and medical report may help in adducing evidence, then such person can be sent to medical examination. (Section 53)

Such medical examination will not violate Article 20(3) of Constitution, as arrested person is not compelled "to be witness" against himself.

Section 53A deals with examination of person who is accused in a rape. Medical examiner in this case has to prepare detailed report related to age, injuries, time of examination etc.

Section 54 makes the medical examination of arrested mandatory.

Examination typically includes  examination  of  blood,  blood  stains,  semen,  swabs  in  case  of  sexual offences,  sputum  and  sweat,  hair  samples  and  finger  nail  clippings  by  the  use  of  modern  and  scientific techniques  including  DNA  profiling  and  such  other  tests  which  the  registered  medical  practitioner  thinks necessary in a particular case; 

In case the accused is woman then due care has to be taken, and examination should be carried out by female examiner

Identification of Arrested Person

Section 54A provides that when arrested person needs to be identified for investigation, such identification must be carried out. (Remember Test Identification Parade ?)

If arrested person is mentally disable, such identification should be carried out in the presence of judicial magistrate.

If identify person is mentally disabled, then such identification should be video graphed.

Rights of arrested person

This is most important aspect if you aspire to be Criminal Lawyer.
This is important for every Citizen.

We have written a separate post for this topic. Read it Here.


DK Basu Vs State Of Bengal

This is one super super landmark case. It had been observed by courts the power of arrest was abused more often than not by police and government and political parties in power. It's still being abused! 

Most of the guidelines have been incorporated into CrPC by various amendments.

Guidelines have mostly rights of arrested person as police abused arrest power lots and lots of times. Such as arrested person should be produced before magistrate, relative or friend of arrested person must be informed, arrested person must be taken to medical examination after each 48 hours(So that police harassing, beating can be identified) etc.

Here are the detailed guidelines. 


Control Rooms

Section 41C  is added which contains the provision of control rooms. It states that whenever person is arrested, information of arrest should be displayed at some place. That place is control rooms. CrPC provides that each district should have control room. The details about the person who is arrested, details about Police who has arrested needs to be displayed at control rooms. 

These control room information from each district to be collected and to be sent to state level control rooms. So that we are aware of the arrests!


Consequences of Unlawful Arrest/Illegal detention

Now that you are aware of various provisions related to arrest, what are the consequences if provisions of this act are not followed while arrest? Will trial be void ? Does Police gets punishment ? 

Below are some of the consequences of unlawful arrest or non compliance of provision of CrPC

In Nilabati Behera Vs State of Orissa, Supreme Court said the arrested person has right to compensation.
Trial will not be vitiated just because non compliance of provision of CrPC
In case of unlawful arrest, person can exercise the right of private defense

Above are some of the consequence of Unlawful arrest.








 


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