Arrest and Rights of Person Arrested under Code of Criminal Procedure,1973: Explained

The Authors, Pranjal Chaturvedi and Aishwarya Majumdar are Students of 4th Year, B.A.LL.B from the School of Law, Sharda University.

Introduction –

As per the Blacks Law Dictionary, the word Arrest means “To deprive a person of his liberty by legal authority”[i], The word arrest has not been defined in the Code of Criminal Procedure or in any other major substantive laws, The word arrest which is generally used, means to deprive a person of his or her personal liberty. In a legal sense, the word arrest means taking a person in custody by the authority of law, for the purpose of holding him to answer a criminal charge or preventing the commission of the act, punishable by law. In the Landmark judgment of R.R. Chari v. State of Uttar Pradesh[ii] the honourable apex court defined the term arrest as “the act of being taken into custody to be formally charged with a crime”.

Why Are Arrest Made?

It is one of the essential features of a free and fair trial that, trial proceeding takes place in the presence of the accused and after the trial, if the accused is found guilty, he should be present to receive the punishment, his presence could not be ensured by any other way other than arrest and detention. 

There are several objectives behind the arrest, which are tried to be satisfied by making an arrest, as –

1. To secure the presence and attendance of the accused during the trial.
2. To obtain the correct name, address and details of the accused.
3. The arrest is also made as a preventive measure.
4. To retake a person in lawful custody who has or who has tried, to escape.
5. To remove obstructions and hindrances in an investigation by police.
6. To secure a free and fair trial and eradicate chances of evidence tampering.

Difference Between Arrest and Custody.

There is a sea of difference between arrest and custody, layman understands it synonyms to each other but for a man of law, knows and understands both have two separate and distinct meanings. In every Custody arrest is not must but in every arrest, custody is de-facto in existence, mere surveillance or restriction in movement includes custody but an arrest is the formal process of taking a person in custody and restricting his liberty. Custody of person is sometimes partial and sometimes completes whereas arrest is never partial, it is always complete. Overall we can say that custody is a bigger circle and arrest is part of that.

Types of Arrest as Per Code of Criminal Procedure -:

1. Arrest without a warrant. (Section 41 & 42)
2. Arrest with a warrant.
3. Arrest made by a private person (Section – 43)
4. Arrest by Magistrate (Section – 44)

Arrest with Warrant –

An arrest warrant is issued by Magistrate and in Cognizable cases, arrest warrant is not required, during the course of an investigation of cognizable offences police officers can arrest without warrant, but in non-cognizable cases, the arrest can only be made once the warrant is issued by the magistrate. In non-cognizable cases, it is required to be analyzed whether the case is summon case or a warrant case, the general rule is, in summon cases first the summon is issued to the accused to require his attendance in court and only on failure to comply with summon, a warrant is issued. In warrant cases, warrant could be directly issued to ensure the presence of the accused in a court of law. In special circumstances, magistrate may depart from the general rule.

Arrest without Warrant –

There are situations and circumstances in when to restrain and refrain a person from doing any illegal act by arresting him, immediate approval of magistrate and warrant is neither desirable nor feasible

In Section – 41 of C.r.P.c, Nine situations are enumerated in which a person could be arrested by a police officer without a warrant, and they are –

1. Any Person actually concerned or is reasonably suspected to be concerned in a cognizable offence.
2. Any person found without any lawful excuse in possession of any implement of the house- breaking.
3. A person who is proclaimed offender.
4. Any person who is in the possession of property reasonably suspected to be stolen and who may be reasonably suspected to have committed the offence with reference to such property.
5. Any person obstruction police officer in the discharge of his official duty or who has escaped from lawful custody.
6. A person who is a deserter from any of the armed forces of the union.
7. Any person who is concerned or who is reasonably suspected to be concerned with any act committed outside of India, if it would have been committed in India, would be punishable as an offence and would have been liable to be apprehended or detained in custody of India.
8. Any person who is released is convicted of committing a breach of any rule made under sec – 356(5) of C.r.P.c.
9. Any person for whose arrest requisition has been received from another police officer, is authorized to arrest him without a warrant.

Apart from 9 grounds as mentioned in Section – 41 of C.r.P.c, there are various provisions in C.r.P.c itself, under which arrest can be made without a warrant, as Section – 51 of Code of Criminal Procedure, in which Executive Magistrate may order to make arrest without warrant in order to maintain peace and upkeep tranquility in society.

From the words of Section – 41, police office “may arrest” it reflects the discretionary power of police officer, but this power is not to be exercised arbitrarily, as in Binoy Jacob v. CBI, 1993 CriLJ 1293 [iii] , the High Court of Delhi opinioned that, country governed by Rule of Law the discretion of authority does not mean, whim, fancy or wholly arbitrary exercise of discretion.  

In Bhawoo Jivaji v. Malji Dayal, 1966 It was held in this case that circumstances laid down in Section – 41 of Code of Criminal Procedure is not exhaustive in nature. There are various other provisions in laws which confer powers on police officer to arrest without warrant, eg Arms Act, Explosives Act, etc.

In case of Pawan Kumar v. Delhi Administration, 1989 Cr. L.J. 127[iv], it was opinioned by the court that arrest and seizure would lose its authenticity if no effort is made by the police to join an independent witness among several persons present.

Arrest Made By Private Person -

As per Section – 43 of the Criminal Procedure Code, any private person may arrest without warrant, when any person –

1. Commits a non-bailable and cognizable offence in his presence or
2. The person is a proclaimed offender

This particular provision in the law is to assist the forces responsible for maintaining law and order and help the law, along with ensuring immediate safety of people and security of property.

Arrest By Magistrate -

Any magistrate either it’s Executive or Judicial magistrate, may arrest or can order any other person to make arrest if

1. An offence is committed in his or her presence
2. An offence is committed in his local jurisdiction.

This provision of Criminal law gives special power to magistrates and it is highly desirable in the hands of magistrates.

There is an exception to the general rule of arrest, that is Sec – 42 of Code of Criminal procedure Code, as per sec – 42 of C.r.P.c, if a non-cognizable offence is being committed in presence of a police officer and their person committing the act or omission refuses to give his personal details as name and address, the police officer could arrest the person without warrant, with a view to ascertain his name and address. 

How Arrest To Be Made?

When any part of the body is touched it amounts to arrest, Arrest is made by actually touching or confining the body of the person unless the person is ready to submit himself or herself to a police officer. The police officer is empowered to use all means to secure an arrest of the accused if he or she tries to resist the arrest. The phrase “secure all means” included the usage of revolver but it is restricted for only those cases where the accused is charged with offences punishable either with death or life imprisonment. The special provision by the C.r.P.c Amendment Act of 2005 has been made for women, as per Sec - 46(4) of C.r.P.c, no woman shall be arrested after sunset and before sunrise, and where the special and exceptional circumstances exist the woman police officer shall, by making a written report obtain the permission of Judicial Magistrate First Class, within whose local jurisdiction the offence is committed or the arrest is to be made.

Laws on Handcuffing:

In Sec- 49, of C.r.P.c, it has been stated that no unnecessary restraint should be used in making and securing the arrest of any person. In Landmark judgment of Prem Shankar Shukla v Delhi Administration, AIR 1980[v], four judges bench of honourable Supreme Court, extended that handcuffs are prima facie inhuman, unreasonable and at first blush arbitrary without fair procedure and objective monitoring. The court observed that handcuffing prisoners is also against, Articles – 14, 19 and 21 of Indian Constitution. In Sunil Batra vs Delhi Administration[vi] (1978), the Supreme Court held that Article 21 forbids deprivation of personal liberty except in accordance with the procedure established by law and curtailment of personal liberty to such an extent as to be a negation of it would constitute deprivation. The court held that the minimum freedom of movement which even an under trial prisoner is entitled to under Article 19 of the Constitution cannot be cut down cruelly by application of handcuffs or other hoops[vii].

Rights of Person Arrested.

There are several rights of a person who is arrested and that lays an obligation on the other party with whom they have to exercise their right.

1. Informed about grounds of arrest - Person arrested to be informed of his ground of arrest and right to bail – As per Sec -50, every person who is arrested without a warrant should be informed about his ground of arrest and observance and compliance of this section is mandatory in nature.
2. No Unreasonable Restraint - The person arrested should not be made subject to any unreasonable restraint. The police officer making an arrest will not use more restraint than what is required for restricting him from escaping or eloping. If the arrest is without a warrant then special order for handcuffing is to be taken from the magistrate. The Honourable Supreme Court of India and Various High Courts have made various orders restricting handcuffing, if not required as the apex court in Citizens for Democracy v State of Assam (1995) passed a slew of directions to be followed while handcuffing a prisoners, court issued set of directions to jail administration and police authorities stated that “holding a minimal freedom of movement, which even a detainee is entitled to under Article -1 9, cannot be cut down by application of handcuffs or other hoops”.[viii] In another judgement of Prem Shankar Shukla v Delhi Administration (1980) honourable court took opinion “handcuffs are prima facie inhuman, unreasonable, and at first blush arbitrary without fair procedure and objective monitoring.”[ix].
3. Information to a nominated person - It is obligatory for the person making an arrest to inform about arrest to a nominated person by the person arrested as per requirement of Sec. 50-A.
4. Right to have Medical Examination - The person who is arrested could get himself/herself examined by a Medical Practitioner as per Sec – 54 of C.r.P.C and in Sheela Barse v State of Maharashtra, (1983) the Supreme Court said that it is the duty of magistrate to inform the person arrested about his right of Medical Examination, as per sec – 54(2) the report of such examination shall be furnished by registered by the medical practitioner either to arrested person or to the person nominated by that arrested person.
5. Information about Right to Bail – A police officer arresting a person other than in non-bailable offence is required to inform to person arrested about his right to bail, that the person arrested is entitled to bail and may arrange for sureties on his behalf.
6. No detention beyond 24 hours – It is provided in Sec – 56 that person arrested should be presented before a magistrate without any delay in sec – 57 of Code of Criminal procedure the person arrested should be presented before the 
7. Consultation with Legal Practitioner – The constitution of India as well as the Code of criminal procedure, both recognize the right of consultation with a legal practitioner of his own choice and this right is available from the moment of arrest.

Other than these specifically mentioned rights there are some other rights as well, as Right to Free Legal Aid, which is Part and Parcel of Fundamental Right, Article – 21 and Directive Principles of State Policy, Article – 39(a) as well, Right to Compensation to victims of unlawful arrest as in Nilbati Behera v State of Orissa (1993[x]), the supreme court has held in case of unlawful arrest and detention victim has right to compensation. Special protection is provided to females in the light of Sheela Barse v State of Maharashtra 1983[xi] and a few of the provisions of C.r.P.c.

Rules framed by Supreme Court in Joginder Kumar v State of Bengal (1994)[xii],

1. The person arrested while in custody is entitled to inform one friend, relative or another person that he has been arrested and the place of his detention.
2. The duty is upon the police officer to inform the arrested person about his right.
3. The entry required to be made in a diary about who was informed.

Conclusion –

The object of arrest is to restrain the movement of the accused person and to ensure his presence during trial along with his availability at the time of sentencing. The power of arrest is to be used very wisely because the right to life and liberty is guaranteed by Part – 3, Article – 21 of the Indian Constitution. The rights which are laid down in part – 3 of the Constitution is Fundamental in Nature, which cannot be taken away by arbitrary or unreasonable use of power, on the contrary, could only be alienated by the person by “due process of law”, but the consequence of non-compliance of rules laid down in C.r.P.c is not very fatal. The trial does not turn void due to non-compliance with rules. The person who is illegally arrested or whose rights were not properly taken care of can claim damages from the person making an illegal arrest and who has not complied with the provisions of C.r.P.c. A person who illegally arrests another person is chargeable under Section – 342 of the Indian penal Code for wrongful confinement. The person who is illegally being arrested could exercise his right to private defence, as per Section 96-106 of the Indian penal Code.

References:

[i] C.B Henry, Pg -110, Blacks Law Dictionary, 6^th Ed.

[ii] AIR 1962 SC 1573

[iii] 1993 CriLJ 1293, 49 (1993) DLT 640, 1993 RLR 263

[iv] 1989 Cr. L.J. 127

[v] AIR 1980 SC 1533

[vi] AIR 1675, 1979 SCR (1) 392

[vii] https://thewire.in/rights/iron-fetters-handcuffs-detainees-violate-human-rights-supreme-court

[viii] https://timesofindia.indiatimes.com/india/no-handcuffing-of-accused-except-under-magistrates-orders-sc/articleshow/72421198.cms

[ix] AIR 1980 SC 1535

[x] 1993 2SCC746

[xi] 1983 cr. LJ 542 (sc)

[xii] (1994) 4 SCC 260