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Arrest of Persons Under CRPC
Arrest of Persons Under CRPC
Types of arrest
The term Arrest has been defined neither in the CrPC (The Code of
Criminal Procedure,1973) nor IPC (Indian Penal Code,1860). The
definition has not been provided even in any enactments dealing with
Criminal Offences. The only indication of what does an arrest
constitute can be made out of Section 46 of CrPC which deals with
‘How an arrest is made’.
Section 42(2) says that the person so arrested may be released after
ascertaining the true name or residence but only after executing a
bond, with or without sureties, to appear before the magistrate if
required. But if the person is not a resident of India then the bond
should be secured by a security or securities resident of India.
Section 42(3) says that if true name or address of the person is not
found within twenty-four hours or if he fails to execute the bond or
required sureties then he has to be presented before the magistrate
falling within the jurisdiction.
Section 43(1) states that a private person can arrest another person
who commits a non-bailable offence or any proclaimed offender and
without wasting any unnecessary time can be taken to a police officer
and in the absence of the officer the accused has to be taken to the
nearest police station.
Section 43(2) says that if the arrest of that person comes under
Section 41, the police officer shall re-arrest him.
Arrest by magistrate
Procedure of arrest
It is the only place that gives the meaning of arrest. Section 46(1)
provides that in an action of arrest the police officer or the person
making the arrest shall actually touch or confine the body of the
person arrested. In the case of women, her submission to the custody
of an oral intimation of arrest shall be presumed and unless the
police officer is female, she shall not be touched by the police officer
at the time of time. But in exceptional situations, contrary to what is
mentioned can be done.
But if there is any female occupying the premises then the person
arrested has to give notice to that female to withdraw and shall afford
every reasonable facility for withdrawing and they may break the
apartment.
Pursuit of offenders
Secondly, in the case where the arrest is made under a warrant, the
police officer under Section 75 CrPC is required to inform the person
arrested about the substance of arrest and if required to show the
order. If it is not done the arrest will become unlawful.
The Indian Constitution also supports this and had emphasised
upon it in Article 22(1), a fundamental right. It prescribes certain
rights that are present with the accused at the time of
arrest(fundamental in nature). It says that no person who is arrested
shall be detained in custody without being informed about the reason
for arrest and consult a legal practitioner of his choice. In re Madhu
Limaye case, the petitioner was not informed about the grounds of
his arrest along with his companions. He challenged this under
Article 32 as it was in violation of his fundamental right before the
Supreme Court. The Supreme Court observed that there was a
violation of an essential and vital right of the petitioner.
Apart from this, the police officer always has to bear the clear, visible
and proper identification of his name which may facilitate his easy
identification. As soon as the arrest is made a memo should be
prepared which is to be attested by at least one witness and
countersigned by the person arrested.
The arrested person also has the right to consult an advocate of his
choice during interrogation under section 41D and Section 303 of
CrPC. Apart from these, there are many other rights and procedures
mentioned in the further part of the article.
The officer or the person arresting has the power to seize any
offensive weapon which he possesses and deposit all weapons to the
court or the officer before whom the person making the arrest is
required by the Code to produce the person arrested(Section 52).
In the case of State of Bombay vs. Kathi kalu Oghad, the Supreme
Court provided certain guidelines in respect of Testimonial
Compulsion or Right to self-incrimination.
Article 22(1) says that no person who has been arrested shall be
detained in custody without being informed of the grounds of arrest
and nor shall be denied the right to be consulted and defended by a
lawyer of choice.
Section 50(1) CrPC also mentions that every police officer or any other
person arrested without a warrant has the duty to inform all the
particulars of the offence to the accused forthwith (immediately). The
time duration between which it is essential to inform the accused
should be reasonable. If the police officer or the person arresting
skips this right then the accused can move to the court under Article
32. The petitioner would be entitled to a writ of Habeas Corpus which
can result in their release.
The rules originating from the decisions such as Joginder Singh v.
State of U.P. and D.K. Basu v. State of West Bengal have been
enacted in Section 50-A making it obligatory on the part of the police
officer not only to inform the friend or relative of the arrested person
about his arrest etc. but also to make an entry in a register
maintained by the police in the police station. The magistrate who is
observing such arrest is also under an obligation to satisfy himself
about the compliance of the police of all the procedures in this regard.
Section 50(2) CrPC provides that “where a police officer arrests any
person other than a person accused of a non-bailable offence without
warrant, he has the duty to inform the arrested person that he is
entitled to be released on bail and he may arrange for sureties on his
behalf.” This will certainly be of help to people who may not know
about their rights to be released on bail in case of bailable offences.
As a result, this provision may to an extent, improve the relationship
of the people with the police and reduce the discontentment against
them.
Article 22(4) says that no person can be detained beyond the period
of three months except on the recommendation of the Advisory
Board. The person detained should be communicated the reason for
detention as soon as possible and give him the earliest opportunity
to make a representation against the order.
Free legal aid means providing free legal services to the people who
are economically not strong to conduct a case or any legal
proceedings in a court of law or before any judicial tribunal and
judicial authority. Article 39A (Directive Principles of State Policy)
provides that it is the duty of the state to provide justice on easily
accessible terms so that every citizen can easily approach the courts
to enforce their rights. It ensures to provide justice based on equal
opportunity through free legal aid or legislation favouring people who
cannot access justice because of economic conditions or any other
difficulty. For this, institutions like Legal Service Authorities are
established at National, state and district levels.
arrest
Conclusion