This blog is authored by Gourav Asati, final-year law student
at Institute of Law, Nirma University, Ahmedabad
It’s surprising to know that the term arrest has not been defined anywhere in the code, in the case of State of Haryana v/s Dinesh Kumar 2008 the Supreme Court stated that the expression arrest has neither been defined in the CrPC nor in IPC or any other enactment dealing with criminal offences the only indication as to what would constitute arrest may perhaps be found under section 46 of the CrPC deals with the procedure to be followed while arrest, the word arrest when used in its ordinary sense means the apprehensive restraint or the deprivation of one's personal liberty in pursuance to any unlawful activity.
As per the framework of CrPC there are two types of arrest:
1. Arrest made in pursuance of a warrant issued by a magistrate
2. Arrest made without such a warrant but in accordance with some legal provision permitting such an arrest
Section 41 of CrPC deals with circumstances when police may arrest without warrant here, any police officer may without an order from a Magistrate and without a warrant, arrest any person who has been indulged in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists. But as per the verdict of Joginder Kumar vs State of UP 1994 the power to arrest without a warrant should be exercised only after a reasonable satisfaction is reached, after some investigation, as to the genuineness and bonafide of a complaint and a reasonable belief as to both the person’s complicity as well as the need to effect arrest also the court stated that except in heinous offences, as mentioned above, an arrest must be avoided if a police officer issues notice to the person to attend the police station and not leave the station without permission. In State vs Bhera, 1994 the court stated that the Reasonable Suspicion or Creditable Information must relate to definite averments which must be considered by the police officer himself before arresting the person.
Section 42 of CrPC states that arrest can be made by presiding police officer upon refusal to provide true name and place of residence. When any person who, in the presence of a police officer, has committed or has been accused of committing a non- cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by the officer. Later, when the true name and residence of such person have been discovered he shall be released on his executing a bond, with or without sureties.
Section 43 of CrPC enshrines power into private person to arrest any offender who in his presence commits a non- bailable and cognizable offence, or if such person is a proclaimed offender, and, without unnecessary delay this private person shall try to contact any nearby police officer, in the absence of officer, take such person in custody to the nearest police station.
Section 44 of CrPC provides power to a magistrate to arrest when any offence is committed in his presence, but it must be within the local jurisdiction, he may himself arrest or order any person to arrest the offender.
Now procedure to arrest is given under Section 46 of CrPC it enumerates three essential conditions:
(1) Firstly, while arrest the police officer or other person making the same is allowed to physically touch or confine the body of the person to be arrested, unless the offender voluntarily submits to the custody by word or action.
(2) Secondly when the person forcibly resists the attempt to arrest him, or makes active movement to evade the arrest, then police officer or other person may use all means necessary to effect the arrest.
(3) Lastly no such means of arrest is permissible which might result in death of offender especially in case of a person who is not accused of an offence punishable with death or with imprisonment for life.
In the case of Birendra Kumar Rai vs Union of India 1992 court observed that arrest using handcuffs shall be avoided in best possible manner and it can also be done by spoken words if the person is willing to submit.
Section 46 sub-section [4] forbids arrest of women after sunset and before sunrise, except in exceptional circumstances when arrest can be done by a woman police officer after obtaining a prior written permission from the concerned magistrate.
In the landmark case of DK Basu v. State of West Bengal 1997 several guidelines were given by the Supreme Court one of them prescribes that Police officers carrying out an arrest or interrogation should bear clear identification and name tags with designations. The particulars of police personnel carrying out the arrest or interrogation should be recorded contemporaneously, in a register kept at the police station. The guideline was given because of various complaints pertaining to Human Rights violations are in the area of abuse of police powers, particularly those of arrest and detention. It has, therefore, become necessary, with a view to narrowing the gap between law and practice, to prescribe guidelines regarding arrest even while at the same time not unduly curtailing the power of the police to effectively maintain and enforce law and order and proper investigation.
The requirements for memo of arrest-
1. It shall be prepared by a police officer mentioning the name and ancillary information about the person arrested.
2. Briefly mention charge levied against the person.
3. It is necessary to mention place where such arrest is made.
4. The memo must be counter signed by 3 witnesses present at the time of arrest.
5. As per Section- 41C every arrest made by any police official must be informed to the District and the State headquarters within 12 hours of any arrest which also needs to be displayed on the conspicuous board.
Also read- What is the Procedure to file Criminal Complaint in Police Station
0 Comments