Code of Criminal Procedure

Introduction

Arrest means the deprivation of a person of his liberty by legal authority or by an apparent legal authority. Under the Criminal Procedure Code, 1973 (CrPC) arrest can be made by:

• Police Officer (Section 41)
• Private Person (Section 43)
• Magistrate (Section 44)

The provisions of the CrPC that deal with arrest range from Section 41 – 60A under Chapter – V (Arrest of Persons).

Persons Authorized to Arrest

• Police Officer

Arrest without warrant – Any police officer may arrest without an order of Magistrate and without a warrant when any person (Under Section 41 CrPC)

• • Commits cognizable offence in his presence,
  • Commits cognizable offence punishable with less than or equal to 7 years of imprisonment with or without fine:
    • Against whom reasonable complaint is made
    • Credible information has been received
    • Reasonable suspicion exists, if:
    • Police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence
    • The police officer is satisfied that such arrest is necessary:
    • To prevent such a person from committing any further offence.
    • For proper investigation of the offence.
    • To prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner.
    • 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.
    • As unless such person is arrested, his presence in the Court whenever required cannot be ensured.

Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.

The police officer shall record while making such arrest, his reasons in writing:

• Against whom a complaint has been received or credible information has been received and a reasonable suspicion exists that such person has committed a cognizable offence punishable with imprisonment for more than 7 years with or without fine and on the basis of that information the police is of the opinion that such person has committed the said offence.
• When such person is a proclaimed offender.
• In whose possession some stolen property is found and there exists a reason to believe that such person has committed an offence in relation to that stolen property.
• When such person obstructs the police officer while in the execution of his duty.
• Who has escaped or attempted to escape from lawful custody.
• When such person is reasonably suspected of being a deserter from the armed forces of the union.
• When such person is concerned with an act committed outside India that is an offence in India and against whom a reasonable complaint has been received or some credible information has been obtained or a reasonable suspicion exists and for the same, he is liable for extradition or apprehension under any law in force in India.
• When such person is a released convict and has breached some rules related to his release.
• When he is arrested under a requisition made by a police officer to arrest such a person who may be arrested without a warrant.

Arrest with warrant (Subject to Section 42)

No person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned shall be arrested without a warrant or order of the Magistrate.

• Private person

A private person can make an arrest by virtue of Section 43 of CrPC when a person:

• • In his presence commits a non-bailable and cognizable offence.
  • Is a proclaimed offender.
• Magistrate

A Magistrate (Executive or Judicial) can make an arrest under Section 44 of CrPC of a person:

• • Either himself or may order any other person to arrest the offender within his local jurisdiction.
  • He may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

Procedure of Arrest

• The procedure for how arrest is to be made is provided under section 46 of the Code.

Section 46 - Arrest How Made -

• (1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action:
  • Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.
• (2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
• (3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
• (4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed, or the arrest is to be made.

Requisites Regarding Arrest

• Where arrest is not required, notice must be compulsorily issued before arresting.
• According to Section 41B of CrPC - Every police officer while making an arrest shall:
  • Bear accurate, visible and clear identification of his name.
  • Prepare memo of arrest, attested by at least one witness and countersigned by the arrested person.
  • Inform person arrested his right to have a relative informed.
• Police control rooms are to be established in every district and at the state level according to Section 41C of CrPC.
• An arrested person is entitled to meet an advocate during interrogation, not throughout the interrogation as per Section 41D of CrPC.
• A Police Officer may, in addition to arrest, exercise following powers:
  • May search a place entered by person sought to be arrested.
  • May pursue any person into any place in India.
  • Shall not subject person to more restraint than necessary.
  • Inform arrested person the grounds of arrest.
  • Inform arrested person of right to bail.
  • Has an obligation to inform about the arrest to a nominated person.
  • Search for the arrested person.
  • Seize offensive weapon.
  • Medical examination of accused at the request of police officer.
  • Medical examination of person accused of rape.
  • Medical examination of arrested person.
• Duty of person having the custody to take reasonable care of health and safety of arrested person.
• A person arrested must be taken before the magistrate within 24 hours of the arrest as per Section 57 of CrPC.
• Officer in charge shall report to District Magistrate of all arrests without warrant.
• Person arrested to be discharged on his own bond/bail/special order of magistrate
• Power to pursue and retake in case of escape.
• Arrest to be made strictly according to the CrPC according to Section 60A.
  • In Arnesh Kumar v. State of Bihar (2014), Supreme Court of India ordered to ensure that police officers do not arrest the accused unnecessarily and magistrate do not authorize detention in such cases.

Case Law

• The landmark case of D.K. Basu v. State of West Bengal (1996) provides for guidelines mandated by the Supreme Court in addition to constitutional and statutory safeguards that must be followed in cases of arrest and detention. The guidelines are as follows:
  • Identification of arresting officer must be clearly visible, and all details must be recorded in register.
  • A memorandum must be prepared containing all the details which must be witnessed by near or dear of the detainee.
  • Police must ensure that the accused should avail right to be informed.
  • Police needs to inform him about legal aid organization within 8-12 hours of arrest.
  • The person arrested must be informed his right as an accused.
  • An entry must be made in the prescribed diary.
  • If the arrestee is injured, he must be legally examined.
  • The medical examination should be done within 48 hours.
  • All details must be sent to the magistrate in writing.
  • The arrestee must be allowed to meet the attorney.
  • A room shall be provided for officers for communication.