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Procedure to be followed during an Arrest

7 min read

By-Shaurya Raj

Published on: May 28, 2022 at 13:00 IST

Introduction

An arrest is an act of taking a person into custody because they may be suspected of a felony or misdemeanor. It is done because a person is arrested for doing something wrong. After a person has been arrested, further procedures such as questioning and investigations are carried out. It is part of the criminal justice system. In an arrest operation, the person is physically arrested by the competent authority.

If you look at the dictionary meaning of the word “arrest“, it means to seize or capture, detain, or let rest. It follows from all the meanings that arrest means to stop a person’s activity. A person can be arrested by the police or the judge.

The term “arrest” was not defined in the Code. In State of Haryana vs. Dinesh Kumar[1] , in 2008 the Supreme Court found that the term arrest was not defined in either CrPC (Criminal Procedure Code, 1973) or IPC (Indian Criminal Code, 1860) or any other statute dealing with criminal offences; Perhaps the only indication of what an arrest would constitute is Section 46 of CrPC, which describes how the arrest is to be made.

Importance of Arrest.

Arrest is one of the most important issues in the criminal justice system. Why is it important to study this topic? Arrests are used as a tool for people to be accused of doing something wrong. It tries to prevent injustice in society. It is used to give people the fear that in the event of an injustice, the movement of a person will be restricted to four walls with very basic equipment. People value their freedom most, and arrests deprive them of that freedom.

The great political philosopher Bolingbroke enumerated,

“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.”

Types of Arrest

The term arrest was not defined by either CrPC or IPC . This definition was also not mentioned in the legislation dealing with criminal offenses. The only sign of what constitutes an arrest is in Section 46 of the CrPC, which deals with “how arrests are made.”

It can further be sub-divided into two parts.

1. Arrest with an arrest warrant.

2. Arrest without such a warrant, but in accordance with the statutory provisions permitting such arrests.

Another type of arrest is a private arrest in which one person is arrested by another. However, this is when a person commits a non-criminal act in the presence of another person, is arrested and given for a criminal offense against a person or his property, or does not know the correct address of residence. Only allowed. But before a person is arrested, there must be sufficient fear and reasonable grounds to arrest that particular person.

Arrest by Warrant.

If a person commits a non-arrestable offence, a warrant must be issued. Without a warrant, the police cannot make such an arrest. On behalf of the state, a Judge or a Magistrate issues the warrant. An arrest warrant allows for the person’s arrest or detention, as well as the capture or seizure of their possessions.

When can a person be arrested without a warrant, according to Section 41(1) of the CrPC, 1973? In the case of a non-cognizable offence and a complaint, Section 41(2) of the CrPC, 1973 stipulates that a person cannot be arrested without a warrant and an order of the magistrate, subject to the requirement in Section 42.

Arrest without Warrant.

When a police officer has the authority to arrest someone without a warrant, this is known as an arrest without a warrant. It can only happen if a person is suspected of committing an arrestable offence. Section 41(1) of CrPC lists many grounds for making an arrest without a warrant. When a cognizable offence is committed, a reasonable complaint is made, or reliable information is acquired, it is typically done.

An arrest without a warrant in the United States still requires probable cause, which must be filed immediately.

Arrest on refusal to give name and residence.

Section 42 of the CrPC outlines what to do if you are arrested for refusing to reveal your name and address. Section 42(1) of CrPC states that if a person who has committed a non-cognizable offence refuses to reveal his name or address or gives a false name and address in response to an officer’s demand, he may be arrested by that officer to determine his true identity.

According to Section 42(2)of CrPC, the person apprehended may be freed after determining the genuine name or residence, but only after executing a bond, with or without sureties, to appear before the magistrate if necessary. If the person is not a resident of India, however, the bond must be secured by an Indian asset or securities.

The police apprehended him to find out his true name and address. Section 42(3) of CrPC states that if the person’s genuine identity or residence is not found within twenty-four hours, or if he fails to execute the bond or required sureties, he must appear before a magistrate within the jurisdiction.

Rights of an Arrested person.

1. a reasonable trial

2. Right to know the reason for detention – Section 50[1]

3. The right to be notified of the bail provisions – section 50[2]

4. The right to be taken to the magistrate without delay—article. 22[2] requires the person to appear before the magistrate within 24 hours.

5. right to consult with a lawyer art. 22[1] basic freedom

6. The right to free legal assistance CRPC 303

7. the right to be notified of his right to inform a relative or acquaintance of his arrest

8. the right to have a medical examination

D.K. Basu vs. State of West Bengal[2], a historic decision from 1997, established a Supreme Court rule that in arrest cases, the police officer making the arrest shall have his name and designation on his badge and should also state it.

Procedure for arrest by a Private Individual.

The procedure of arrest by a private person is expressly provided in Section 43 of CrPC.

Section 43(1) of CrPC 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) of CrPC says that if the arrest of that person comes under Section 41 of CrPC, the police officer shall re-arrest him.

Section 43(3) of CrPC 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 of CrPC. But he shall be released if there is no sufficient reason to believe that he has committed an offence.

Procedure for Arrest.

There is no complete code which provides the procedure as a whole. Still, Section 46 of CrPC explains how arrest is formed.

It is the only place that gives the meaning of arrest. Section 46(1) of CrPC provides that in an action of arrest the policeman or the person making the arrest shall actually touch or confine the body of the person arrested. within the case of women, her submission to the custody of an oral intimation of arrest shall be presumed and unless the policeman is female, she shall not be touched by the policeman at the time of time. But in exceptional situations, contrary to what’s mentioned can be done.

According to Section 46(2) of CrPC, the police are authorised to use reasonable amount or means of force to effect the arrest in cases where the person being arrested forcibly resists or attempts to evade arrest.

Recently what we saw within the Hyderabad Rape case (2019) can be a good example. The policeman using the power under this provision used an amount of force to prevent the accused from escaping. Whether the quantity of force applied was reasonable or not is a question which will be inquired by the court.

Exception.

The individuals from the Armed Forces are shielded from capture as given in Section 45 of CrPC. Section 45(1)of CrPC states that no individual from the military can be captured for anything done while releasing the authority obligations besides with the assent of the Central Government. It is dependent upon the circumstances referenced in Section 41-44 of CrPC.

Section 45(2) of CrPC spreads out that the State Government may through a warning can coordinate that the sub-section (1) will apply to any class or classification of individuals from Armed powers who are accused of the support of public request as might be indicated immediately, at whatever point they are serving. At the end of the day, the State government very much like the Central Government is engaged to utilize the power referenced in sub-section (1).

Conclusion.

Rights are available to each citizen of the country. Even an individual accused of an offense possesses various rights some of which are fundamental in nature. just in case of non-compliance with these provisions, the accused can approach the court where the remedy is out there. On the opposite hand, the police authorities must follow the procedure given in Chapter V of the Code of Criminal Procedure.

Edited By: Advocate Ramsha Shaikh, Associate Editor at Law Insider

Reference:

  1. Appeal (civil) 84 of 2008
  2. AIR 1997 SC 610