An Arrest is a way of taking a person into custody as they may be suspected of an offense because a person is comprehended for doing something wrong. Once a person is arrested, further procedures like interrogation and investigation are done. It is included in the Criminal Justice System. As a result of an arrest, the person is detained physically by the concerned authority.
From all the senses, it can be deduced that arrest means to get a stop to a person’s activity. Police or Magistrate can arrest a person. But can an individual arrest another individual? If yes, when can he be charged, and why? How many types of arrests are there? How can they get it enforced? All these key questions regarding Arrest have been answered in this Article.
Essentials of the arrest
The essential elements required to make an arrest are: –
- Arrests should be made under legal authority.
- There should be detention or arrest of the person,
- The person should be in lawful custody.
- The act of arrest must include the actual arrest of the person and should not just be a verbal declaration of the arrest.
Types of Arrest
The 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 in any enactments dealing with Criminal Offences. The only indication of arrest includes Section 46 of CrPC, which deals with ‘How an arrest is made.
Arrests are broadly categorized into four types:
- Arrest with the pursuance of the warrant.
- Arrest without a warrant. (Section 41 & 42)
- Arrest by a private person (Section – 43)
- Arrest by Magistrate (Section – 44)
Arrest in pursuance of a warrant
In the implementation of CRPC section 70, every such warrant of arrest issued by a court under the CRPC will have to be signed and in writing by the presiding officer of such court and shall bear the court's seal. The warrant of arrest is applicable until it is executed by the same court that has issued it.
The form for a warrant of arrest has been prescribed in the second schedule as FORM 2.
A warrant of arrest in normal chances be directed to one or more police officers. Still, suppose the court issuing such a warrant is satisfied that no police officers are immediately available. If the court may direct any person to execute the same as per the provisions of CRPC under Section 72.
According to Section 71 of CRPC, a warrant of arrest can be executed anywhere in India. Still, a contract outside the local jurisdiction of the court needs to follow the different procedures as discussed under sections 78 to 81 of CRPC.
Arrest without a warrant
Section 41 CRPC sanctions certain conditions that must be pleased for a police officer to arrest without a warrant
- The person involved in a conspicuous offense or against whom a piece of credible information, reasonable complaint, or suspicion exists.
- A person who owns any weapon of housebreaking without any legal excuse.
- A person who has been proclaimed as an offender.
- A person who is found in the ownership of the stolen property.
- A person who tries to stop a police officer from performing his duty or attempts to escape from lawful custody.
- A person who is involved in an offense that is committed outside India.
- A person who has released a convict committing a breach of a rule.
- A person for whom requisition for arrest has been issued.
Section 42: Arrest for denial to give name and residence
Suppose any individual accused of committing a non-cognizable offense does not provide his name or address or provides a name and place that the police officer feels is false. In that case, they may be taken into custody. Moreover, these people cannot be held or detained beyond 24 hours if their actual name and address cannot be ascertained. In this case, they shall be forwarded to the nearest Magistrate having jurisdiction.
Section 46: Making an Arrest
Section 46 of the CRCP states how arrests should be made, with or without a warrant. While making an arrest, the officer should touch or confine the person's body to be arrested only after consent of custody by words or action. When an officer of the police department stops an individual with a warrant of arrest obtained from the Magistrate, the person being detained shall not be handcuffed unless the officer has received orders from the Magistrate. The individual making an arrest can use all means needed to complete the arrest if the individual to be arrested resists or attempts to evade the situation. In an arrest without a warrant, a police officer can make an individual into any place in India as specified under Section 48. Section 49 states that the arrested person may not be subject to any unnecessary restraint or physical inconvenience unless it is required to prevent his escape.
Arrest Made by Private Person
According to Section 43 of the CRPC, provisions give powers to a private person without any warrant, when any person –
- Carries out a non-bailable and cognizable offense in his presence or
- The person is a proclaimed offender
This provision in the law assists the forces responsible for maintaining law and order and helping the law, along with ensuring immediate safety of people and property security.
Arrest by Magistrate
Section 44 (1) CRPC states any magistrate, whether Judicial or executive, has the power to arrest if any person commits an offense in the presence of the magistrate. In 44(2) CRPC, the magistrate has been given powers to make an arrest or order an arrest by someone within
the local jurisdiction for whose arrest he is arrested at the time and in the circumstance to issue a warrant. There’s a fragile difference between sub-section 1 and 2. In an arrest made under subsection 1 of section 44 CRPC, the magistrate can commit the offender to custody. In contrast, in subsection 2 the magistrate does not have the power to execute the offender to custody.
How arrest to be made?
The arrest is made by touching or confining the person's body unless the person is ready to submit themselves to a police officer. The police officer can use all means to secure an arrest of the accused if they try to resist the arrest.
Still, it is restricted to only those cases where the accused is charged with offenses punishable by death or life imprisonment. The special provision by the CRPC Amendment Act of 2005 has been made for women. As per Sec - 46(4) of CRPC, no woman shall be arrested after sunset and sunrise.
Where exceptional circumstances exist, the woman police officer should create a written report and obtain the permission of the Judicial Magistrate, within whose local jurisdiction the offense is committed, or the arrest is to be made.
Guidelines for Arrests and Detention
The Supreme Court of India has stated detailed guidelines needed to be followed by an officer while arresting a person, and these rules have been laid down in the case of D. K Base Vs the State of West Bengal on 18/12/1996. Later, the code was altered, and section 41-B laid down the procedure that must be mandatorily obeyed while making an arrest.
Guidelines prescribed by the court:
- The arrested person can call or meet with his lawyer.
- He has to present before the magistrate within 48 hours of arrest.
- The arrested person can inform their relatives regarding his arrest.
- The arresting officer must prepare the memo and be arrested by at least one witness.
- He has the right to a medical examination every 48 hours.
- An entry must be mentioned in the diary regarding the arrest.
- Police control rooms should be made in all the districts and state headquarters, from which information about the person's arrest can be shared with all the communities.
- All the documents, including the arrest memo, must be sent to the magistrate.
- The arresting officer should have a clear identification of his name and designation.
- The time and the place of custody must be notified to the family or friend of the arrested person.
- The person arrested must know his rights to have someone notified on his behalf.
Article- 22 (1) of the Indian Constitution states that every arrested person has several rights they can access, such as the right to choose a lawyer to defend him or the right to be silent.
To safeguard arrested women, the Code amended certain sections related to strict guidelines, procedures, and rights of an arrested woman.
Rights are available to every citizen of the country, including a person accused of an offense who possesses various rights, some of which are fundamental. Various provisions have been laid down under CrPC and the Indian Constitution to ensure smooth functioning and prevent bewilderment while carrying out the arrest of any individual. In case of non-compliance with these provisions, the accused can consult with a criminal lawyer and approach the court where the remedy is available. On the other hand, the police authorities must follow the procedure in Chapter V of the Code of Criminal Procedure (CrPC).
What are the five stages of the arrest?
The five basic steps of a criminal proceeding are the following:
- Preliminary hearing.
- Grand jury investigation.
- An arraignment in Criminal Court.
- Trial by jury.
What is termed a procedure to arrest someone in India?
Section 151 gives power to police officers to arrest any person, without orders from a Magistrate and a warrant, if that person is designed to commit a cognizable offense.
Can police arrest without FIR in India?
What is a Non-cognizable Offence? The category of offenses per the Criminal Procedure Code (CrPC) in which Police can neither register the FIR nor investigate or effect arrest without express permission or directions from the court is known as Non-cognizable offenses.
What are the elements of the arrest?
Arrest consists of three elements:
- Restraint of liberty
- Intent to make an arrest
- Comprehension by the detainee they are under arrest.
How is an arrest made under CrPC?
The police officer or the one making the arrest shall touch or confine the person's body to be arrested till the time there is a submission to the custody by action or word.
Who is allowed to make an Arrest?
- A Police officer is a prime authority that can do so and has vast powers,
- A Magistrate if an offense occurs in his presence as described under Section 44 of the CRCP.
- A Private person can arrest if a non-bailable and cognizable offense has occurred in his presence, as stated under Section 43 of the Code.