An Arrest is an act of taking a person into custody as he/she may be suspected of a crime or an offence. It is done because a person is apprehended for doing something wrong. After arresting a person further procedures like interrogation and investigation is done. It is part of the Criminal Justice System. In an action of arrest, the person is physically detained by the concerned authority.
Types of arrest
The term Arrest has been defined neither in the CrPC (The Code of Criminal Procedure,1973) nor IPC (Indian Penal Code,1860). The definition has not been provided even in any enactments dealing with Criminal Offences. The only indication of what does an arrest constitute can be made out of Section 46 of CrPC which deals with ‘How an arrest is made’.
If broadly characterized arrest is of two types-
- Arrest made in pursuance with a warrant issued by the magistrate.
- Arrest made without any warrant but within the established legal provisions.
Arrest by warrant
If a person commits an offence which is non-arrestable then a warrant is necessary to be issued. The police cannot make such kind of arrest without a warrant. The warrant is issued by a Judge or a Magistrate on behalf of the state. An arrest warrant authorizes the arrest or detention of the person or capture or seizure of an individual’s property. Section 41(1) of CrPC,1973 explains when can a person be arrested without any warrant. Section 41(2) of CrPC, 1973 states that subject to the condition in Section 42, a person cannot be arrested without a warrant and an order of the magistrate in case of non-cognizable offence and where a complaint is made. The procedures to be followed while arresting a person find its mention in Section 46 of the Code. But this Code is not fully sufficient to provide all the procedures, for this the guidelines given in different cases are followed.
Arrest without warrant
An arrest without a warrant means when a police officer is entitled to arrest a person without any warrant. It can happen only in cases where a person is a suspect of an arrestable offence. There are several grounds provided in Section 41(1) of CrPC under which an arrest can be made without a warrant. It is usually done in case of a cognizable offence, when a reasonable complaint is made or when a piece of credible information has been received.
Procedure of arrest by a private person
The procedure of arrest by a private person is expressly provided in Section 43 of the Criminal Procedural Code.
Section 43(1) 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) says that if the arrest of that person comes under Section 41, the police officer shall re-arrest him.
Section 43(3) 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. But he shall be released if there is no sufficient reason to believe that he has committed an offence.
Arrest by magistrate
Magistrate here includes both an executive or judicial Magistrate. According to Section 44(1) of CrPC when an offence is committed in the presence of a magistrate within his local jurisdiction, he has the power to arrest that person himself or order any person for arrest and subject to the conditions relating to bail, commit the accused to custody.
Section 44(2) in addition to clause 1 also provides that the Magistrate can also arrest or direct to any person in his presence, within his local jurisdiction of whom who he is competent to arrest at that time and in the circumstances to arrest.
Procedure of arrest
There is no complete code which provides the procedure as a whole. Still, Section 46 explains how arrest is made.
It is the only place that gives the meaning of arrest. Section 46(1) provides that in an action of arrest the police officer or the person making the arrest shall actually touch or confine the body of the person arrested. In the case of women, her submission to the custody of an oral intimation of arrest shall be presumed and unless the police officer is female, she shall not be touched by the police officer at the time of time. But in exceptional situations, contrary to what is mentioned can be done.
According to Section 46(2), 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 in the Hyderabad Rape case(2019) can be a good example. The police officer using the power under this provision used an amount of force to prevent the accused from escaping. Whether the amount of force applied was reasonable or not is a question which will be inquired by the court.
Medical examination of accused
Section 52(1) provides that when a person who is arrested for a charge of the offence of such a nature that there are reasonable grounds for believing that such examination will produce evidence related to the commission of the offence. It is lawful for a registered medical practitioner under the request of the police officer, not below the rank of sub-inspector to carry about an examination with the use of reasonable force. But this force cannot be too much.
Section 52(2) says that when the examination is done of a female, it should only be done by a female or under the supervision of a female registered medical practitioner.
Section 53A discusses the method of medical examination of a person accused of rape.
Article 20 of the Constitution provides that no person who is an accused can be compelled to give evidence against himself. This provision comes into play in relation to this section.
Rights of an arrested person
The Constitution of India has laid down some basic rights for the accused at the time of the arrest. It is part of the Magna Carta (Part-III) of the Constitution. This makes it very crucial in nature. As in case these rights are not enforced, they can be challenged through a writ petition under Article 32 and 226 of the Constitution. It means that these rights in any way cannot be omitted from enforcing as they are fundamental. In addition to the constitution, it is also mentioned in the Code of Criminal Procedure,1973. Rights like Right to be informed, right to be presented before a magistrate within 24 hours, right to consult a legal practitioner of choice finds a place in Article 22 as well in CrPC.
Rights are available to every citizen of the country. Even a person who is accused of an offence possesses various rights some of which are fundamental in nature. The accused can in case of non-compliance of these provisions approach the court where remedy is available. On the other hand, the police authorities are required to follow the procedure given in Chapter V of the Code of Criminal Procedure(CrPC).
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