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Arrest Under Criminal Law: Who, When, Why And How?

Kashyap Joshi
5 Nov 2020 7:29 AM GMT
Arrest Under Criminal Law: Who, When, Why And How?
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'In every arrest there is a custody, but not vice versa. Custody may amount to arrest, but not under all circumstances.'[1] The word 'arrest' is terrifying for a layperson, but for lawyers it is just a legal connotation of forcible restraint.

'Arrest' is not defined under CrPC or any other Act, but the dictionary meaning of arrest is: 'The taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge.'[2] It is also known as forcible restraint, where liberty to move is curtailed.

Legal Provisions of Arrest of Persons prescribed under Chapter-V of the CrPC from S.41 to 60. However, FAQs (frequently ask questions) are: When Police can arrest? Why Police should arrest? How Police could arrest? Time, Reasons and modalities or method of arrest are always depending upon facts and circumstances of each case. Nonetheless, we try to examine it in an order given under the Code.

Who, When and Why Police can arrest?

It is pertinent to note that Police can arrest only in cognizable offences[3] (which are somewhat serious in nature) no arrest can be made in non-cognizable offences[4] (which are less serious and mostly private wrongs e.g. defamation, dishonor of cheque etc.)

S.41 of the CrPC commends: When police may arrest without warrant (a document issued by a legal official authorizing the Police to make an arrest). Sub-section (1)(a) says: 'who commits, in the presence of a police officer, a cognizable offence'.

However, S.41(2) specifies that: '… no person concerned in a non-cognizable offence … , shall be arrested except under a warrant or order of a Magistrate.'

But, sub-section (1)(b) is qualified and prescribes certain conditions for arrest, more particularly, if cognizable offence is punishable with imprisonment for a term – less than seven years or may extend to seven years.

In this section, three situations have been indicated before making an arrest, namely:

  • Against whom a reasonable complaint has been made, or
  • Credible information has been received, or
  • A reasonable suspicion exists;

If the above circumstances are present, then also, to justify the arrest it is necessary to follow conditions as mentioned below; (any one of them) must be satisfied:

(ii)(a) to prevent such person from committing any further offence;

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner;

(d) 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 police officer

(e) as unless such person is arrested, his presence in the Court whenever required cannot ensured.

Thus, any of the above conditions have been fulfilled, Police can make an arrest, and this, of course, will be applicable for the offence punishable up to 7 years. Besides, the police is required to record the reasons in writing for making such arrest.

S.41-A further says, in such offences, the Police have to issue a notice directing the person against whom reasonable complaint is made or credible information is received … to appear before it.

However, in case of woman, the police officer shall not touch the … woman for making her arrest, unless the police officer is a female and the circumstances require …

It is further clarified in sub-section-(3) that: 'Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence…'

Besides, to avoid arbitrary arrest and just to check on the powers of police to arrest, there is also a statutory provision u/s.41-B that 'every police officer while making an arrest shall – bear an accurate, visible and clear identification of his name, will prepare a memorandum of arrest, attested by a witness from arrestee's family or a respectable member of the locality, where the arrest is made.'

It is now also permitted that arrestee shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.[5] However, despite above provisions, still Police is having an upper hand, as wide discretionary powers have been given to police e.g. if the arrest is required to be made for the purpose of 'proper investigation', what is proper and what is improper, only Police can say or determine, same is the case with other wordings of further provisions of arrest …

Now, the most important aspect is the of mode or manner of arrest:

How Arrest can be made?

S.46 (1) of the CrPC says: " In making arrest the police officer … 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:

Sub-section (2) says: "If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer… may use all means necessary to effect the arrest.

And sub-section (3), which is known as justifying the encounters by the Police says: "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".

If the aforesaid section has been read without two words - 'Nothing' and 'not' then, it would be clear that it gives a right to Police to cause the death of a person who is accused of an offence punishable with death or with imprisonment for life.

Hence, reading the abovementioned two clauses – s.s.(2) and (3) conjointly, the Police may used "all means necessary to effect the arrest" and also cause the death of a person, who is accused of an offence punishable with death or life imprisonment.

Private Person and Magistrate can arrest, but who cannot be arrested?

Under the Code, it is not that only Police can arrest. S.43 states: Arrest by private person is also permitted when non-bailable and cognizable offence is committed in his presence or any proclaimed offender is found, and when such arrest is made, without unnecessary delay, s/he should hand over to a police officer or arrested to be taken … to the nearest police station. S.44 also prescribes Arrest by Magistrate – whether Executive or Judicial, when any offence is committed in his/her presence, s/he may arrest and subject to provisions of bail, commit the offender to custody.

However, sub-section (4) of S.46 prescribes that '… no woman shall be arrested after sunset and before sunrise … except in exceptional circumstances, but by woman police officer … (and after) obtaining prior permission of the Judicial Magistrate…'

In case of child, no arrest can be made under the Juvenile Justice (Care and Protection of Children) Act, 2015. Here, the child means a person who has not completed 18 years of age;[6] Even if s/he found with the conflict of law by the police, such child shall be placed under the charge of special juvenile police unit or the designated child welfare police officer, who shall produce the child before the Board within 24 hours…[7] Thus, child cannot be arrested and cannot be put in police lock-up or custody.

That apart, S.49 of the CrPC also stipulates – No unnecessary restraint – "The person arrested shall not be subjected to more restraint than is necessary to prevent his escape." So, handcuffing is not permissible in normal circumstances, as it put more restraint than necessary, unless it is so required e.g. the accused is having history of absconding. Supreme Court has[8] condemned the conduct of escort police in handcuffing the prisoners/under trials without any justification … it is very unfortunate that the courts have to repeat and re-repeat their disapproval of unjustifiable handcuffing.

Apart, the person arrested is to be informed of grounds of arrest and his/her right to bail, if the offence is bailable.[9]

Further, as per article-22 (2) of the Constitution as well as S.57 of the CrPC, no arrested person shall be detained in Police custody beyond 24 hours and s/he is required to produce before the nearest Magistrate within 24 hours from his/her arrest. This is mandatory.

Besides, arrest can also be made based upon the issuance of warrant by the courts. Even in a case on non-cognizable offence before the Court, if accused does not remain present for the purpose of trial; the Court can issue a warrant to secure his/her presence.

S.70 of the Code prescribes the Form of warrant of arrest and duration e.g. in the second schedule – Form No.2 is mentioned.

Warrant of Arrest

To (name and designation of the person or persons who is or are to execute the warrant)

Whereas (name of the accused) of (address) stands charged with the offence of (state the offence), you are hereby directed to arrest the said … … , and to produce him before me. Herein fail not.

Dated this … … day of … … ,20

(Seal of the Court) (Signature)

Once the arrest is made through warrant, person arrested is required to furnish bond-bail to release from the custody. Warrant can also be issued to bring the witness to the court in a criminal case u/s.87 of the CPRC. Further, warrant can also be issued for search of a particular thing u/s.93 of the Code. U/s.125 of the CrPC warrant can also be issued for imprisonment on failure to pay the maintenance. In the same manner u/s.250, the warrant can also be issued upon failure to pay the compensation. Warrant can also be issued for recovery of fine u/s.421 of the code. These are the few instances of the legal mechanism provided by the code through the courts for the purpose of arrest, secure the presence and comply with the orders of the court.

Now, we see summary of precedents on arrest.

Three Leading Cases on Police Powers of Arrest:

  1. In a case of Joginder Kumar v. State of U.P. & others[10] the Supreme Court has said: "Police officer must be satisfied about necessity and justification of … arrest … Reasons for arrest must be recorded. Arrest should normally be avoided except in cases of heinous crime. No arrest can be made because it is lawful for the police officer to do so…"
  2. In a Case of D.K.Basu[11] the Apex Court has issued 11 directions as preventive measures to stop arbitrary arrest or detention and said: "Failure to comply with the same … shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and … may be instituted in any High Court…"
  3. In a case of Arneshkumar v. State of Bihar
    [12]
    the SC reiterated: "No arrest should be made only because the offence is non-bailable and cognizable … The existence of the power to arrest is one thing, the justification for the exercise of it is quite another… All the State Governments to instruct its police officers not to automatically arrest when a case u/s.498A or S.4 of the Dowry Prohibition Act… and also where offence is punishable with imprisonment for a term up to Seven years…"

Lastly, I conclude with the words of Mahatma Gandhi that: "An unjust law is itself a species of violence. Arrest for its breach is more so."

(Author is an Advocate Practicing at the High Court of Gujarat)



[1] Criminal Law & Practice – 8th Edition, Revised by Justice C. K. Thakkar

[2] Black's Law Dictionary – 7th Edition

[3] S.2(c): 'cognizable offence means an offence for which, … a police officer may, … arrest without warrant.

[4] S.2(l): 'non-cognizable offence means an offence for which, … a police officer has no authority to arrest without warrant.

[5] S.41-D Right of arrested person to meet an advocate of his choice during interrogation

[6] S.2(12) of the Juvenile Justice (Care and Protection of Children) Act, 2015

[7] S.10 of the above Act

[8] Aeltemesh Rein v. Union of India, AIR 1988 SC 1768 – Right to Personal Liberty and Handcuffing: Some Observations, ILI 1991

[9] S.50 of the CrPC

[10] (1994) 4 SCC 260

[11] (1997) 1 SCC 416

[12] (2014) 8 SCC 273


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