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What Is Arrest?: Arrest: Procedure and Rights of Arrested Person in India
What Is Arrest?: Arrest: Procedure and Rights of Arrested Person in India
INDIA
WHAT IS ARREST?
This term “Arrest” is very common term that we pick up a lot in our day today life.
Normally, we see a person, who do or have done something against the law, get
arrested. Generally, the term “arrest” in its ordinary sense, means the apprehension
or restraint or the deprivation of one’s personal liberty. Let’s understand this term
in Indian law, Criminal procedure Code, 1973 in its chapter V (section 41 to 60)
deals with Arrest of a person. Ironically, Code has not defined the term “Arrest”.
Every deprivation of liberty or physical restraint is not arrest. Only the deprivation
of liberty by legal authority or at least by apparent legal authority, in a
professionally competent and adept manner amounts to arrest. Thus, we can say
arrest means ‘apprehension of a person by legal authority resulting in deprivation
of his liberty’. An arrest consists of taking into custody of another person under
authority empowered by law for the purpose of holding or detaining him to answer
a criminal charge and preventing the commission of a criminal offence. However,
a person against whom no accusation of crime has been made may be arrested
/detained under a statute for certain purposes like removal in safe custody from one
place to another, for example – removal of a minor girl from a brothel. One thing
to be noted that ‘custody’ and ‘arrest’ don’t have same meaning. Taking of a
person into judicial custody is followed after the arrest of the person by Magistrate
on appearance or surrender. In every arrest there is custody but not vice versa.
Thus, mere taking into custody of a person an authority empowered to arrest may
not necessarily amount to arrest. This code propose two types of arrests: (i) arrest
made in pursuance of a warrant issued by a magistrate (ii) arrest made without
such a warrant but made in accidence with some legal provision permitting such
arrest.
WHO CAN ARREST?
Arrest can be made by police officer, Magistrate or any private person, like you or
me can also arrest a person but that can made only in accordance with some legal
provision permitting such arrest. The code exempts the members of Armed forces
from being arrested for anything done by them in discharge of their official duties
except after obtaining the consent of the government (Sec. 45).
Any private individual may arrest a person only when the person a proclaimed
offender and the person commits a non bailable offence and cognizable offences in
his presence (sec. 43). Any magistrate (whether Executive or judicial) may arrest a
person without a warrant (sec. 44). Under section 41, Arrest by police officer can
be made without warrant only in cognizable offences (sec.2(c)) and with warrant in
non- cognizable offence (sec 2 (l)). Cognizable offences are of more serious nature
as compare to non cognizable offences i.e. Murder, kidnapping, theft, etc.
HOW ARREST IS MADE?
Sec. 46 describes the mode in which arrests are to be made (whether with or
without warrant). In making an arrest the police officer /other person making the
same actually touches or confines the body of the person to be arrested unless there
be a submission to custody by words or action. When the police arrests a person in
execution of a warrant of arrest obtained from a magistrate, the person so arrested
shall not be handcuffed unless the police have obtained orders from the Magistrate
in this regard. The person making an arrest may use ‘all means’ necessary to make
arrest if person to be arrested resists or attempts to evade the arrest. A police
officer may, for the purpose of arresting without warrant any person whom is
authorized to arrest, pursue such person into any place in India (sec 48). Arrested
person shall not be subjected to unnecessary restraint and physical inconvenience
unless it’s necessary to do so to prevent his escape (sec. 49).
RIGHTS OF ARRESTED PERSONS -:
Arrest of a person is made in order to ensure his presence at the trial in connection
with any offences to which he is directly or indirectly connected or to prevent the
commission of a criminal offence. In law, there is principle of “presumption of
innocence till he has proven guilty” it requires a person arrested to be treated with
humanity, Dignity and respectfully till his guilt is proof. In a free society like ours ,
law is quite careful toward one’s “personal liberty” and doesn’t permit the
detention of any person without legal sanction. Even article 21 of our
constitution provides : “No person shall be deprived of his life or personal liberty
except according to procedure established by law”. The procedure contemplated by
this article must be ‘right, just and fair’ and not arbitrary, fanciful or oppressive.
The arrest should not only be legal but justified also, Even the Constitution of India
also recognize the rights of arrested person under the ‘Fundamental Rights
‘and here I will inform you about those rights :-
General rule is that Females are not be arrested without the presence of a
lady constable and further no female be arrested after sun-set but there are
exception in some cases, where crime is very serious and arrest is important
then arrest can be made with special orders and it depends on facts and
circumstances of each case. Separate lock ups to be provided for them.
The salutary principle that the medical examination of a female should be
made by female medical practitioner has been embodied in sec 53(2).
Sec 54-A empowers the court to direct specifically the holding of the identification
of the arrested person at the request of the prosecution.
Arrest to be made strictly according to the code (Sec 60A) – “No arrest shall
be made except in accordance with provision of this code or any other law for
time being in force providing the arrest”.