Arrest

ARREST ARREST (Section 41)

CAN BE MADE BY: 

Police officer (Section 41(1), 42)



Magistrate (Section 44)



Private Person (Section 43)

Note – Article 361(3) gives immunity to the President & the Governor. Sections 45 -Members of Armed force are immune from arrest for anything purported to be done in discharge of his official duties

PROCEDURE OF ARREST 

Duties Of The Person By Whom Arrest Made(Section 41(C), 41B (A), (B), (C), 46(2), (3), 47, 48, 49, 50, 50A,51, 52, 53,54,55,56,57, 58, 59,60)



Right Of The Person Arrested (Article 22(1),(2) Section 50(1), 50(2) 55,56,57, 75, 76) 

Arrest Of Female (Section 46(1),(4), 51(2), 151, Proviso To Section 54(1), 53(2) )

RESTRICTION TO LAWFUL ARREST ITSELF AN OFFENCE (I.P.C SECTION – 224, 225, 225B)

REMEDY TO ILLEGAL ARREST (I.P.C SECTION 96-106, 358) 1|Page

ARREST Liberty is the most precious of all the human rights. It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man. The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on December 10, 1948, contains several articles designed to protect and promote the liberty of individual. So does the International Covenant on Civil and Political Rights, 1966.

Above all, Article 21 of the Constitution of India proclaims

that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. Even Article 20 and clauses (1) and (2) of Article 22 are born out of a concern for human liberty. As it is often said, one realizes the value of liberty only when he is deprived of it. Verily, liberty along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by our Constitution. Of equal importance is the maintenance of peace and law and order in the society. Unless there is peace, no real progress is possible. Societal peace lends stability and security to the polity. It provides the necessary conditions for growth, whether it is in the economic sphere or in scientific and technological spheres. Just as liberty is precious to an individual, so is the society interested in peace and maintenance of law and order in the society. Both are equally important. This fact was recognized about 2500 years ago by Heraclitus of Ephesus. He had observed “A major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes license”. (Quoted by Arthur T. Vanderbilt in his article “United We Stand”.1

 International Covenants o The Universal declaration of Human Rights: o

Article 9 - no one shall be subject to arbitrary arrest, detention or exile;

o Article 12 provided that the privacy, reputation and honor of every individual shall be protected by the State. o The International Covenant On Civil And Political Rights 1966: 1

http://lawcommissionofindia.nic.in/reports/177rptp1.pdf, Law commission report of India 177

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ARREST o Article 9 (1) declares that “Everyone has the right to liberty and security of person (and that) no one shall be subject to arbitrary arrest or detention”. o Article 9 (3) declares further that “any one arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release”. o Article 10 (1) of the Covenant declares that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. o Article 17 says that the privacy, honour and reputation of an individual shall not be interfered with unlawfully. o Article 2(2) of the Covenant creates an obligation upon the ratifying States to enact domestic legislation to give effect to the rights guaranteed by the Covenant. o Article 3 creates a further obligation upon such States to ensure that the rights guaranteed by the Covenant are made available to all their citizens. Vishakha v. State of Rajasthan (1997 (6) SCC 241) “Any international convention not inconsistent with the Fundamental Rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee” PUCL v. UOI (1997 SC 1203) “For the present, it would suffice to state that the provisions of the covenant, which elucidate and go to effectuate the fundamental rights guaranteed by our Constitution, can certainly be relied upon by Courts as facets of those fundamental rights and hence, enforceable as such”.

 Law Commission of India: 177th Report In Delhi, while the total number of persons arrested for substantive offence is 57,163, the total number of persons arrested under preventive provisions is 39,824. 50% of the persons arrested were arrested for bailable offences. If we take U.P., the number of arrests under the preventive provisions is far above the total number of arrests for substantive offences. While preventive arrests are 4,79,404, the number of 3|Page

ARREST arrests for substantive offences are 1,73,634. The percentage of persons arrested in bailable offences is 45.13. The unduly large number of arrests under preventive provisions as well as for bailable offences. An overwhelming percentage of those arrests were by the Police without a warrant. It is a matter of common knowledge that it is the poor who are at the receiving end of the excesses by law enforcement authorities.

 Constitution of India 

Article 21 of the constitution of India declares that “no person shall be deprived of his life or personal liberty except according to procedure established by law”.



The heading of the said Article is “Protection of life and personal liberty”.



Article 20 contains three guarantees, namely, a) Not to be convicted of an offence which was not in force or punishable at the time of the commission of the offence; b) Not to be prosecuted or punished for the same offence more than once; and c) Not to be compelled to be a witness against himself. 

Article 20 o Clause (1) declares that “No person who is arrested shall be detained in custody without being informed, as soon as maybe, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice”; o Clause (2) is indeed more fundamental. It says “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate”.

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ARREST  Law for Arrest under Cr.P.C. : “Arrest may be defined as the execution of the command of a Court of Law or of a duly authorized officer.”2 Section 41 empowers the police to arrest any person without warrant from the Magistrate if such person is concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or reasonable suspicion exits of such person having been so concerned with the cognizable offence. Section 41 also specifically refers to a cognizable complaint about commission of a cognizable offence.3Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc.4 Under Section 41(2) only the empowered officer can give the authorization to his subordinate officer to carry out the arrest of a person or search as mentioned therein. Although the use of the word "May" in Section 41 Cr.P.C. indicates that, it is not obligatory for police to make arrest in every case. But if arrest is made, it does not require any, much less strong, reasons to be recorded or reported by the police. Thus so long as the information or suspicion of cognizable offence is "reasonable" or "credible", the police officer is not accountable for the discretion of arresting or no arresting. At best the arrested person can be granted bail, or maybe in extreme cases remand can be refused under Section 167 Cr.P.C.5 Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso 2

Union of India v. Padam Narain Aggarwal & Ors., (2008) 13 SCC 305.

3

Baldev Singh Cheema v. State of Punjab and Ors., AIR2012SC1515 -

4

Dilip

&

Anr

vs

State

Of

M.P

on

24

November,

2006,

http://indiankanoon.org/docfragment/372947/?formInput=section%2041%20crpc, Also see: Hamidhbai Azambhai Malik vs State Of Gujarat on 12 January, 2009, 5

Brahm Prakash Gupta v. State, 2008(106)DRJ199

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ARREST to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr.P.C namely Sections 100 and 165 Cr.P.C and if there is no strict compliance with the provisions of Cr.P.C then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case. When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973. Under Section 41(2) only the empowered officer can give the authorization to his subordinate officer to carry out the arrest of a person or search as mentioned therein.

 Arrest of Women Some of the policemen on duty in the Crime Branch Office of Nagpur City took into custody one Junious Adam Illamatti, a resident of Ajini Railway Colony on 23.6.1993. While he was in Police custody, it is stated he was found dead. It is also alleged that when his wife Jarina Adam went to the Police Station to enquire about her husband, she was also locked up by the said Police and molested. On 26.6.1993 a criminal case being Crime No. 438 of 1993 was registered for offences under Sections 302, 342, 330, 354 read with 34 against 10 Police Officers. The investigation in this regard was conducted by a Deputy Superintendent of Police. State CID (Crimes) Mr. Godbole. After investigation said Police Officers were charge sheeted for the offences mentioned hereinabove and in the trial in S.C. No. 416 of 1993 before the Additional Sessions Judge, Nagpur, said 10 Police Officers were acquitted of the charge under Section 302 IPC but were convicted for offences punishable under section 333 read with 34, 342 read with 34, 355 read with 34, and a punishment of 3 years' RI with fine

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ARREST for the principal offence was awarded by said Sessions Judge to the abovementioned 10 Police. A criminal appeal against the said judgment and conviction is pending before the High Court. On 29.9.1993 Criminal Writ Petition was filed initially by the Christian Community Welfare Council of India which was latter on impleaded with victim of the said case. The High Court by the impugned order issued various directions in regard to the laying down of guidelines to prevent and check custodial violence and procedures to be followed by Police while arresting any person including women. High Court has directed the State Government to issue instructions in the following terms: “The State Government should issue instructions immediately in unequivocal and unambiguous terms to all concerned that no female persons shall be detained or arrested without the presence of lady constable and in no case, after sunset and before sun-rise;" We notice the mandate issued by the High Court prevents the Police from arresting a lady without the presence of a lady constable ….also prohibits the arrest of a lady after sunset and before sunrise under any circumstances...we do agree with the object behind the direction... (But) we think a strict compliance of the said direction, in a given circumstance, would cause practical difficulties to the investigating agency and might even give room for evading the process of law by unscrupulous accused. While it is necessary to protect the female sought to be arrested by the Police from Police misdeeds, it may not be always possible and practical to have the presence of a lady constable when the necessity for such arrest arises, therefore, we think this direction issued requires some modification without disturbing the object behind the same. We think the object will be served if a direction is issued to the arresting authority that while arresting a female person, all efforts should be made to keep a lady constable present but in circumstances where the arresting officers is reasonably satisfied that such presence of a lady constable is not available or possible and/or the delay in arresting caused by securing the presence of a lady constable would impede the course of investigation such arresting officer for reasons to be recorded either before the arrest or immediately after the arrest be permitted to arrest a female person for lawful reasons at any time of the day or night depending on the circumstances of the case even that without the presence of a lady constable. We also direct with 7|Page

ARREST the above modification in regard to the direction issued by the High Court in clause (vii) of this appeal, this appeal is disposed of.6

 Record Reason Section 41(Proviso): What it means is that if you are arresting, you must record reasons. If you are not arresting also, you should record reasons. The lawyers were asking: Why do you record reasons for arresting and not recording reasons for not arresting? There is merit in that submission. Therefore, the main part of the Section says that if you are arresting you should record reasons and if you are not arresting also you should record reasons.7 Section 41 (A) - Pertaining to issue of notice of appearance is in line with the right to life and liberty for every Indian citizen. This would help bring down the number of arrests which would in turn decongest the crowded jails of India. Simultaneously, the innocents too can feel secured in case they stand a chance of exposure to implication in false cases. This amendment made the system more transparent. 

Preventive Measures

D.K BASU V STATE OF WEST BENGAL AIR 1997 SC 610 1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. 2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest .

6

State of Maharashtra Vs. Christian Community Welfare Council of India, (2003) 8 SCC 546

7

GOVERNMENT BILLS: Discussion On The Code Of Criminal Procedure on 12 August, 2010 -

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ARREST 3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. 4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest . 5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. 6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. 7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer affecting the arrest and its copy provided to the arrestee. 8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. 9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record. 10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. 9|Page

ARREST 11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest , within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

 Protection8 In case, the State consider the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal liberty of the accused in a routine manner. These suggestions are only illustrative and not exhaustive. 1) Direct the accused to join investigation and only when the accused does not cooperate with the investigating agency, then only the accused be arrested. 2) Seize either the passport or such other related documents, such as, the title deeds of properties or the Fixed Deposit Receipts/Share Certificates of the accused. 3) Direct the accused to execute bonds; 4) the accused may be directed to furnish sureties of number of persons which according to the prosecution are necessary in view of the facts of the particular case. 4) The accused be directed to furnish undertaking that he would not visit the place where the witnesses reside so that the possibility of tampering of evidence or otherwise influencing the course of justice can be avoided. 5) Bank accounts are frozen for small duration during investigation.

Persons Immune from Arrest: By the virtue of Article 361 (3) of the constitution the President or Governor, is immune from arrest during the term of office under any process issued by the court. As per Section 45 of the Cr.P.C members of the armed force shall not be arrested for anything done or purported to be done in the discharge of his official duties except with the consent of the central government.

8

Bharatbhai vs State on 11 May, 2012, Also see: Siddharam Satlingappa Mhetre v. State of Maharashtra And Ors.

on 2 December, 2010 - CRIMINAL APPEAL NO. 2271 2010

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ARREST

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