Last updated: December 6th, 2018 12:35 AM

The Criminal Procedure Code: Arrests

It is common to see a person, who works against or has done something against the laws, get arrested. In a general term, the word 'arrest' in its normal sense would mean the apprehension, restraint or deprivation of one's liberty. Ironically, the Criminal Procedure Code of 1973, that deals with the aspects of arrests, have not defined the very same term. From the context in the Code, it is a term to describe the deprivation of liberty by a legal authority. Hence, not every physical restraint can be termed as an arrest. An arrest of an individual comprises of taking the person into the custody of an authority empowered by the law for detaining the person to answer the criminal charges and to prevent the commission of a criminal offence. This article talks about the details of The Criminal Procedure Code: Arrests.

Types of Arrest

Two codes are followed to arrest an individual. They are as follows.

1. An arrest made in pursuance of a warrant issued by a Magistrate.
2. An arrest made without a warrant but with a legal provision permitting the detention.

Authorities to Arrest

Arrests may be initiated by an officer of the Police Department, the Magistrate or a private person or an ordinary citizen under some legal provision permitting such an arrest. The Criminal Procedure Code forbids the detention of the members of the Armed Forces for any action executed by them in the discharge of their official duties except after obtaining the consent of the Indian Government. According to Section 43, a private individual may conduct an arrest of another person specifically when the arrested individual is determined to be an offender by proclaiming or commits a non-bailable offence and cognizable offences in the presence of the arresting individual. Section 44 states that a Magistrate, regardless of being Executive or Judicial, may conduct an arrest on a person without a warrant. Arrest by a Police Officer can be performed without a warrant only when the said person conducts a cognizable offence. Cognizable offences include criminal activities that are of more serious nature as compared to non-cognizable offences. Cognizable offences include criminal activities such as murder, kidnapping, theft and so on.

Arrest without Warrant

Section 41 enumerates the different categories of cases in which an officer of the Police Department may arrest an individual without an order from a Magistrate and a warrant. These include the following.

1. A person who has been concerned with and in any cognizable offence or against whom a reasonable complaint has been filed, or credible information has been received, or a reasonable suspicion surrounds the person, of his having been so concerned.
2. A person who has an item in his possession without any lawful excuse, the burden of proving which excuse shall lie on such a person, any implement of housebreaking.
3. A person who has been proclaimed as an offender either under the Code or by order of the State Government.
4. A person who is in possession of anything that may reasonably be suspected to be stolen property and a person who may be reasonably be suspected of having committed an offence with a reference of such a thing.
5. A person who obstructs the functioning of a police officer while in the execution of his duty, or who have escaped, or attempts to escape, from lawful custody.
6. An individual who is reasonably suspected of being a deserter from any of the Armed Forces of the Union.
7. A person who has been involved in, or against whom a reasonable complaint has been made, or credible information has been obtained, or a reasonable suspicion exists, of his having been involved in, any act committed at any country or a place out of India which, if done in India, would have been considered and punishable as an offence, and for which he is, under any law concerned to extradition, or otherwise, liable to be apprehended or detained in custody in India.
8. A person who was a released convict and commits a breach of any rule, relating to the notification of the residence or change of or absence from the place of residence.
9. A person for whose arrest any requisition, regardless of being written or oral, has been received from another officer, provided that the order specifies the individual to be arrested and the crime or other causes for which the detainment is to be done, and it appears therefrom that the individual might lawfully be arrested without a warrant by the officer who issued the requisition.

Section 42: Arrest for refusal to give name and residence

If any individual who is accused of committing a non-cognizable offence does not provide his name, residence or instead provides a name and residence which the police officer feels to be false, he may be taken into custody. However, such a person cannot be held or detained beyond 24 hours if his actual name and address cannot be ascertained or fails to execute a bond or furnish sufficient sureties. In such an event, he shall be forwarded to the nearest Magistrate having jurisdiction.

Section 43: Arrest by a private person

A private individual may conduct an arrest or cause to be arrested by any individual who in his presence commits a cognizable or a non-bailable offence or who is a proclaimed offender. This right of arrest arises under the Common Law which applies to India Ramaswamy Aiyar (1921) 44 Mad. 913.

Section 44: Arrest by Magistrate

As stated in Section 44 clause (1) of the Criminal Procedure Code, the Magistrate has been given the power to arrest an individual who has committed an offence in his presence and also commit him to custody. Under Clause 2 of the Code, the Magistrate has the power to arrest a person for which he is competent and has also been authorised to issue a warrant. However, Section 45 of the Code protects the members of the Armed Forces from an arrest where they execute an action in the discharge of their official duties. They could be arrested only after obtaining the consent of the Central Government.

Section 46: Making an Arrest

Section 46 of the Criminal Procedure Code enlightens the mode in which and how arrests are to be made, i.e., with or without a warrant. While making an arrest, the police officer or authority of power should touch or confine the body of the person to be arrested only after submission to custody by words or action has taken place. When an officer of the police department arrests an individual with a warrant of arrest obtained from the Magistrate, the person who is being detained shall not be handcuffed unless the officer has received orders from the Magistrate in this regard. The individual making an arrest may use all means required to complete the arrest if the individual to be arrested resists or attempts to evade the situation. For the purpose of arresting without a warrant, a police officer may pursue such an individual into any place in India as stated under Section 48. Section 49 of the Code says that the arrested person shall not be subject to any unnecessary restraint or physical inconvenience unless it is required to do so to prevent his escape.

Rights of Arrested Individuals

An arrest of an individual is made to ensure his presence at a trial scheduled in connection with the offences to which the person is directly or indirectly involved or to prevent the commission of a criminal offence. It is the principle to treat an individual with the presumption that he is innocent until proven guilty. Therefore, persons who are being arrested have individual rights that are mention under the Criminal Procedure Code, and they are as follows.

Section 50: Right to be informed

It is the fundamental right of a person to be informed of the actions that are to be made against him. A police officer has to inform the individual and also inform the person if the offence falls under the bailable or non-bailable category. Usually, bailable offences are those offences where bail may be granted, and it is the right of an individual to be granted bail. On the other hand, non-bailable offences are situations when bails cannot be issued and to do so is in the sole discretion of the court.

Section 75: Right to see an arrest warrant

In situations of non-cognizable cases, an arrest is to be made with an arrest warrant, and the individual who is to be arrested has every right to see the warrant as stated in Section 75 of the Criminal Procedure Code. The warrant must check specific requirements such as that the warrant must be in writing, signed by a presiding officer, sealed by the court, name and address of the accused and the offence under which the arrest is being made. A warrant is termed illegal if any of these requirements fall short.

Other Rights

The following are the other rights that an accused that is getting arrested can have.

1. The police officer must be clear with his identity. He must wear a clear and visible identification of his name which facilitates easy identification.
2. A memo of arrest should be prepared at the time of arrest and attested by at least one witness (can be a family member or a member of the locality) when the arrest is done and must be countersigned by the accused.
3. Under Section 41D and Section 303 of the Criminal Procedure Code, the accused and arrested has every right to meet an advocate of choice during interrogation.
4. Section 50 of the Criminal Procedure Code states that the arrested has the right to inform a member of his family, relative or a friend of the situation.
5. The arrested person has the right not to be detained for more than 24 hours without being present before a Magistrate. This right is fundamental and prevents unlawful and illegal arrests as supported by Section 57 and Section 76 of the Criminal Procedure Code.
6. According to Section 54 and Section 55A, the arrested person has the right to be medically examined to establish the offence that he charged with was not committed by him or that he was subjected to torture physically.
7. The arrested individual has the right to remain silent under Section 20(3) of the Indian Constitution to prevent self-incriminating statements being extracted with or without his consent.

Special Protection to Females

The standard rule is that women are not to be arrested without the presence of a lady constable. It is also stated that no woman is to be arrested after sunset unless in certain exemptions. These exemptions include crimes that are extremely serious and an arrest is essential and can be executed under special orders. Separate lock up rooms are to be provided for females in police stations. Section 53(2) of the Criminal Procedure Code states that it is a salutary principle that a medical examination of the arrested female to be conducted by a female medical practitioner.