What is Arrest?
Arrest is when a person is prevented from having free movement
by applying the authority under law. It is known that when a police officer
arrests a person he/she takes away the Fundamental Right of freedom of that
person. Arrest is of two types, Arrest with warrant and Arrest without
warrant.
1. Arrest with warrant: This type of arrest is for the
Non-Cognizable offences which require warrant.
2. Arrest without warrant: This type of arrest is for the
cognizable offences which do not require any warrant for the arrest.
Cognizable offences are non-bailable offence that is the bail will
only be granted by the court and the Non-Cognizable offences which
are bailable offences for this you can get bail right after the arrest of the
person.
What is the need of Arrest?
1. In order to compel obedience to the
order of a court.
2. Prevent the commission of the crime.
3. Ensure that person charger or suspected
of a crime may be forthcoming to answer it.
What are the conditions under which police can arrest without warrant?
1. A person concerned in a cognizable offence.
2. A person in possession of implement of
house breaking.
3. A person who has been proclaimed
offender.
4. In possession of stolen property.
5. A person who obstructs a police officer.
What are the guidelines that the police need to follow during an arrest?
1. He may search the arrested person.
2. He may place in safe custody all articles other than necessary
wearing apparel found on the arrested person.
3. If any article is seized from the arrested, receipt show be given to
arrestee for article.
Who can arrest?
a. Section 41(1) and
151 of CrPC for the police officials to arrest a person without a warrant.
b. Section 72 to 74
of CrPC with a warrant.
c. Under written
order of an officer in charge under sections 55 and 157.
According
to Article 20: -
a. No person shall be convicted of any
offence except for violation of a law in force at the time of the commission of
the act charged as an offence.
b. No person shall be subjected to a
penalty greater than that which might have been inflicted under the law in
force at the time of commission of the offence.
c. No person shall be prosecuted and punished for the same offence more than once. (Rule of double jeopardy).
According
to Article 21: -
No person shall be deprived of his life or personal liberty except according to procedure established by law.
According
to Article 22: -
a. No person who is arrested shall be
detained in custody without being informed, as soon as maybe, of the grounds
for such arrest.
b. No person who is arrested shall be
denied the right to consult and to be defended by, a legal practitioner of his
choice.
c. If can’t hire lawyer then state will
provide legal aid i.e. competitive advocate.
d. Arrested should be produced before
magistrate within 24 hours.
Sections with respect to Arrest
a. Sec. 41 Cr. P.C.-
The person against whom arrest can be made are the one who is concerned with cognizable offence, possession of Implement of House breaking, proclaimed offender, who have a possession of stolen property, who obstruct police officer, who is deserted from any of the armed forces under any law relating to extradition and person released on requisition.
b. Sec. 42 Cr. P.C.-
The arrest of a person who has committed offence in front of a police officer or who is accused of committing a non-cognizable offence denied a police officer giving his name and resident or has given false information. Will be arrested for limit purpose of taking his name and resident and after that will be released with or without bond which says he has to make his presence in front of magistrate if needed. Within 24 Hrs he has to be taken to nearby magistrate.
c. Sec. 46 Cr. P.C.-
When arrest is made there needs to touch or confine the body of a person unless there is submission to custody. They can use reasonable amount of force if someone restrict to arrest, the reasonable is restriction means police officer cannot cause a death of a person who has not committed an offence which is not punishable with life imprisonment or death. The last subsection talks about special provision for women, need of women constable for arrest and sunset to sunrise rule.
d. Sec. 47 Cr. P.C.-
The police officer making arrest can break the windows or doors if they are obstructing arrest and he want to enter in any place for purpose of making arrest.
e. Sec. 48 Cr. P.C.-
The person whom a police officer is having warrant to arrest can pursue him in any part of India.
f. Sec. 50 Cr. P.C.-
Highlighting the importance of Article 22(1) which says that the particulars, for which he is arrested should be informed to him, and If he can be released on bail then also he is to be informed about the same. He may search the arrested person and place in safe custody all his founding’s and wearing apparel.
g. Sec. 51 Cr. P.C.-
Receipts of the
article possession should be given to the person. Search of female is to be
done by female officer. Subordinate can arrest with a written permission from
the officer which he shall show the person arresting.
What
is Search?
Search is
an important tool of investigation done by the police who are of the person and
house.
Police
officers are empowered to conduct these searches as per the various
provisions. Personal searches are conducted immediately after person
is arrested and taken under the custody.
House search can be
conducted prior to arrest or after the arrest as per the needs and demand of
the investigation, normally the prescribed time is the day time to search a
house but if it can happen that the evidence relating to the case will be
destroyed or will perish then the search can also take place at the night time.
What is the procedure for search?
a. 2
members of locality is needed to present at the time of search.
b. In
their presence whatever things were found and seized the list is to be signed
by the witness.
c. Occupant
of the place shall be allowed to be present during the search and a copy of the
search list signed by witnesses shall be given to him.
d. Police
officer and witness were searched before commencing a search so that there may
not be any suspicion of adding something extraneous.
e. After
the arrest the article of the person is kept safe in Malkhana and entries made
in concerned registers.
f. If
there are any incriminating articles which might be necessary for
investigation, they should be separated and the procedure for recording and
dispatch of case property to courts should be followed.
g. When
the arrestee is remanded for the custody the other property should be returned
to his nearest kin. The property when not needed is sold or disposed as ordered
by the court.
What is Seizure?
Refers to the collection of evidence by law enforcement officials and to
the arrest of persons.
Search and seizure are a necessary exercise in the ongoing pursuit of
criminals.
Any police officer may seize any property which may be alleged on
suspected to have been stolen, or which may be found under circumstances which
create suspicion of the commission of any offence.
Police officer have to note down the seized things in the register and
also have to give the copy of the same to the arrestee and the person in
relation with the arrestee and arrestee also has to sign the receipt of the
list of seized items.
Important and Relevant Cases
1. D.K. Basu vs. State
of West Bengal
· The police person carrying out the arrest should bear
accurate, visible and clear identification and name tags with their
designation.
· The particulars of all such personnel that were
handed during interrogation of arrestee must be recorded.
· A memo containing date and time of the arrest is to
be made by police official of arrest which is to be attested by at least by one
family member or any respectable person of locality.
· Police should notify the time, place, arrest and
venue to relative of arrestee.
· Arrestee must be aware of the charges framed on him
and entry of the place where this detention takes place must be in diary.
· Medical check-up of Arrestee should be done.
· Arrestee must be permitted to meet his lawyer during
investigation, should also be subjected to medical examination after every 48
Hours.
2. Joginder
Kumar vs. State of Uttar Pradesh
In the given case it was stated that any arrest just because a police
officer is lawful in doing so the arrest cannot be made. Because there is a
difference between having a power to arrest and using that power with a
reasonable and valid justification of exercising your power according to law. A
wrong arrest can harm a person reputation and self-esteem of a person when
person is put into a lockup during arrest and detention. There is
responsibility on side of police officer for protecting the constitutional
rights of a person. The arrest cannot be made without reaching to a reasonable
satisfaction after doing a proper investigation.
3. Nilabati
Behera vs. State of Orissa
In the given case the court discuss on Article 21, Right to life of a
person that this right is to be kept in mind. For extracting any information
from a person by use of any type of torture will neither be considered as fair
nor just because it would be impermissible and is offensive to article 21.
There is remedy available in public law under Article 21 of the constitution
which guarantees that there will be compensation awarded when there is a infringement
to your right.
4. Sheela
Barse vs. State of Maharashtra
Special provisions for women and certain points to be kept in mind.
There should be separate lock ups for male and female , the women accused
should be kept separate. There have to be selected police lock ups in good
localities for keeping only female suspect there and these suspect have to be
guided by female constable. With guidance by women police officer
the interrogation of females also carried out by a female officer/ constable.
5. R.D.
Upadhyay vs. State of AP
Till 6 years of age the children of women prisoners can be kept in jail
with their mothers. In the birth certificate of children, the District of the
Jail is to be mentioned. Outside the premises of jail there needs to be Nursery
for Children of Women prisoners.
6. Sunil
Batra I and II
The rights of the prisoners were
discussed in this case that the right of life and personal liberty of a person
should not violate. There should not be solitary confinement but permission of
separate confinement is there. Inspection of the jail is to be done by District
Magistrate. Representative of the prisoner should be heard. There should be
grievance box available by order of Magistrate for every minute. The key of the
box is with magistrate only he can open and check the grievance.
7. Citizens
for democracy vs. State of Assam
It was stated that handcuffing is
violative of Article 21 of the Constitution until necessary or the permission
is granted by the court for the reason given by the police.
8. A.R.
Antulay vs. R.S. Nayak
The speedy trial and legal aid are a
fundamental right under the Article 21 of the constitution.
9. Khatri
vs. State of Bihar
Re Inhuman Condition in
1382 Prison (2016) There was set up of a committee was done for
looking implementation of Probation of Offenders Act and compounding of
Compoundable offence. Also, for providing legal aid. This committee also meet
quarterly to look cases of prisoners who are arrested under bailable offence
Section 436 and who have spent half time of the maximum term in trial.
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