An arrest is a word that we often hear in our day-to-day life. Generally, we watch a person getting arrested for doing any illegal activity. Regarding criminal law, an arrest is necessary to bring a charge to court and stop them from running away. Consequently, the arrester has authority over a person's liberty after an arrest. It is the main reason for understanding the procedure to arrest a person so that police officers and others cannot bother the public.
The word "arrest" isn't described in the CrPC or any other significant laws. The word arrest means the suspicion or restraint of a person's freedom when used in its usual and genuine sense. The CrPC controls the way to arrest a person in India. It describes the entire process of knowing someone who has committed an offense. A person's arrest is dealt with in the 5th chapter of the CrPC, 1973, from Section 41 -60.
It is not always a police officer who can arrest a person. Apart from them, a judge and a private person can also arrest a person after following the required procedure.
In this article, we will discuss the meaning of arrest and the steps involved in Arresting a person in India.
Police Procedure for Arresting a Person With or Without a Warrant:
The procedure for Arresting a person with or without a warrant has been stated in section 46 of the CrPC. Following are the steps that a police officer must follow while arresting a person with or without a warrant:
1. Confirm you have reason to arrest:
While arresting a person, a police officer must know the reason for that arrest. They can arrest a person in the following cases:
a) The magistrate signed an arrest warrant.
b) They observed a crime being committed in front of them.
c) They have possible cause to believe the suspect has committed a crime. To find possible causes, the officer must have clear facts and not a suspicion that the person has committed an offense.
2. Restrict the suspect:
A police officer must stop the suspect's actions from making the arrest easier. They can use many diverse ways, such as verbal or written orders. Police making an arrest must know how much force they can apply. If they choose to apply excessive force to arrest, then they can be sued for it.
a) Generally, the continuum of force is explained to the officers. Simply put, a police officer must start the research by saying, "Stop" or "Let me see your ID." If the charged person does not listen, they are allowed to control the suspect by holding or grabbing them.
b) The final point of the process is deadly force. The manual will define the cases in which deadly force is reasonable.
c) The section doesn’t give the right to an officer to kill a person who hasn't been charged with an offense penalized with death or lifetime detention.
3: Control the suspect:
Once you arrest the suspect, the officer should control them. If required, they have to apply the required force to gain control. Be alert and keep an eye on the suspect so that they can't run away till the time an officer handcuffs them.
4. Handcuff the suspect:
After that, the officer must handcuff the person behind the back. If they handcuff the suspect in the front, they will have enough freedom to move and run. Ensure that the hands are not cuffed tightly, and it is secured.
5. Search for the evidence of the suspect:
After cuffing the hands of the suspect, the officer must start searching for the evidence. Start searching for a weapon or other proof of a crime. Search everything, nevertheless of gender, age, size, or race. Keep that person in a different location while searching for the evidence. Ensure to conduct a second, more detailed search. If required, ask for other officers to suspect it.
6. Use Miranda’s warnings while asking questions:
Once an officer has taken the person in custody, then the officer can’t question them without providing Miranda warnings. The officer can't use the suspect's statements in court if they don't give the Miranda warnings. Following are some warnings:
a) The charge has the right to be silent.
b) Any information provided by the suspect can and will be used against them in court.
c) The charge has the right to hire a lawyer.
d) If the charge cannot hire a lawyer, one attorney will be allotted to them.
7. Arrest by a private person under CrPC:
According to Section 43 following are the steps followed by a private person to arrest someone in India:
a) Any private person can arrest someone who has committed a cognizable, non-bailable offense or any declared offender in their presence. They must call the officer to arrest the person. In the absence of a police officer, a private person can take that person or induce him to be taken to the nearest police station.
b) If it is felt that such a person comes under the conditions of section 41 of the act, then the police officer must re-arrest the person.
c) If it is felt that the person has committed a non-cognizable offense and on-demand, they deny to the police officer to give their name and place or give the name or residence that is false. In that case, they have to deal with it under section 42. Still, if there is no adequate reason to believe they have committed any crime, they must free them at once.
8. Arrest by a magistrate or any other person under CrPC:
According to Section 44 following are the steps followed by a magistrate person to arrest someone in India:
a) When any crime is committed in front of the Magistrate (Judicial or executive), within his local authorities, they can arrest the person themself or order any other person to hold the culprit, as per the provisions herein held as to bail, commit the offender to charge.
b) Any Judge (Judicial or executive) can arrest the person directly or indirectly in his presence, within his local authorities, of anyone for whose arrest he is apt at the time and in the cases to issue a warrant.
There are numerous post-arrest steps, which are the duties of a Police Officer and the rights of an arrested person, which must be followed for a valid arrest. The post-arrest procedure includes the following:
1. Inform the reason for Arrest:
The officer's duty to arrest a person without a warrant is to state the reason for that arrest.
When a warrant is involved in making an arrest, the police officer has to state the arrested person about the nature of the arrest and, if required, show the warrant. The arrest will not be considered legal if this procedure isn't followed. According to the Indian Constitution, no arrested person should be held in custody without stating the reason for that arrest first and having the chance to talk and take the assistance of their lawyer.
2. Search of Arrested Person:
The police officer can search the arrested person and must be provided with the receipt of found items after the search. Also, it is specified that one must maintain a certain level of decency in the search for a female.
3. Seizure of Offensive Weapons:
The police officer or the one making the arrest has the power to hold any weapon used to accomplish a crime by the arrested person and present it in court or the officer.
4. Medical Examination:
A medical officer's medical examination of the arrested person should be done to facilitate an effective investigation. It is permitted if it is well believed that the person's examination will give proof to the Police Officer required for investigation purposes.
Section 53 of the Code allows a senior police officer to make the charged person complete a medical examination.
Other than that, the Constitution's Article 20 states that no charged person can be forced to give proof against themselves. In the reports of the Law Commission, it was presented that the effect of Article 20, section 3 is limited only to oral or written testimony.
5. Present before the Judge:
When an officer is arrested without a warrant, they owe it to the judge to appear before them within the first 24 hours. The officer shouldn't take the charged person anywhere except the police station before presenting them in front of the court. The District Judge should send a report of all such persons arrested without a warrant. Also, the arrested person can be discharged only by bail or on the particular order stated by the judge.
Arresting a person is a complicated process. The person/officer making the arrest should have a legal basis to make the arrest, and you must follow the necessary steps while making the arrest. Police officers should be given a detailed policy defining the right force amount relying on the cases. If any officer or private person arresting a person applied too much force, they can be sued. That's why both public and officers must be familiar with the procedure to be followed while arresting a person.
As discussed in the article, the CrPC, 1973 controls arresting a person in India and gives them duties. Yet, the power of arrest provided to Police Officers is constantly being abused. Some officers have been using their ability to threaten the public and get money from them.
As per the reports, they sometimes don't tell them about the charge, do not give them the required legal help, or present them in the courts in the next 24 hours in some cases. Due to this, the people need to understand the correct procedure for arresting a person, and the police officers must follow the process stated in Chapter V of the CrPC.
What are the main elements of a valid arrest?
The following are the main elements of a valid arrest:
- A person must get the knowledge and reason behind the arrest.
- They must know the reason for their arrest until it is already apparent.
- Words or behavior must be there that make it clear to the person getting arrested that they aren't free to go.
What proof is required to charge a person?
There are numerous reasons to doubt that a person to be charged for committing an offense. Officers can obtain other evidence to provide a real chance of trust. The case's sincerity or events explains the making of a quick charging judgment.
How long can they keep you under arrest?
Usually, the expected time the police officer can hold a person for is 24 hours until they will need to charge them either with a criminal offense or will let them go. They can apply to have them for 36 or 96 hours in exceptional cases. It happens only when they are arrested in severe cases.
Is there any special provision given to women while arresting them?
Yes, there are some special provisions given to women. The following provisions are:
- The prevailing rule is that a woman can't get arrested in the absence of a female police officer, and also, no woman can be arrested after sunset. Still, in some exceptional cases, when they have committed a severe crime, the arrest is essential and can be made with special orders, and it relies on the facts and issues of each case—separate lock-ups to be given to them.
- The salutary principle states that a woman medical officer must make a medical assessment of a woman, as noted in section 53 sub-section 2.
Who has the right to arrest the person?
Arrests can be made by a police official, judge, or any private person. But it is essential to note that the arrest must be made in the prescribed manner as stated in CrPC.
1. A police officer can make an arrest with or without a warrant. The members of the Armed forces are exempted from being charged for anything they did in the discharge of their official responsibilities except after obtaining the government's consent (Section 45).
2. A private person can make an arrest only if the person is a declared criminal, committed a non-bailable crime, and cognizable crimes in their presence (section 43).
3. A judge (Judicial or executive) can make an arrest with or without a warrant (Section 44)
What is the result of Non-compliance with the police system for arresting a person?
The failure to comply with the provisions of the CrPC and other legislation related to the arrest of a person in India will not cause the trial to be null & void. If an arrest is made irregularly or illegally, the charge's penalty and the court's orders are unchanged. Yet, if the charge defies or runs from legal custody, it will include a material fact. Also, in case of an arrest by a private person, the charged one will have the right to get personal security. Still, this right isn't applicable during the arrest by a magistrate.