ALL YOU NEED TO KNOW ABOUT ARRESTS IN INDIA

INTRODUCTION

Every human being is born with some fundamental rights, such as the right to life and the right to freedom. Similarly, in the spirit of shared brotherhood and conscience, every citizen of every country is given certain rights, such as the right to life, the right to equality, the right to freedom, the right to education, the right to equality, the right to freedom of religion, and many more. However, if a person is imprisoned or arrested for committing a crime, those same rights may be forfeited.? Article 21 of our constitution provides that no one's life or personal liberty will be taken away unless it is done in line with procedure. Corruption and related malpractices are possible at different moments during the Police's day-to-day activities. It can begin with the filing of a case, the choice to arrest or not arrest, the demand for extortion, the collection of a 'hafta' for involvement in civil disputes, the production of bogus evidence, and so on. The ability to make arrests is the most common source of police corruption and extortion. As police can arrest with or without a warrant. Article 21's procedure must be conducted in a "just, reasonable, and fair" manner, not in any arbitrary, whimsical, or oppressive way. The arrest is expected to be not only legal, but also reasonable. Even India's Constitution recognizes the rights of people who have been arrested under the Fundamental Rights Act. As a result, the accused has been granted some legal privileges.

What is an arrest?

The term "arrest" is not defined in the Code of Criminal Procedure. The term "prison" refers to imprisonment by law enforcement officers for depriving a person of his liberty. arrest or forced detention; Use of force to destroy the liberty of any person; According to the Forex Legal Dictionary, it is a legal right to arrest or detain someone, especially in a criminal case. The laws and regulations of India have always been based on the human right to civil liberties and as a result, imprisonment or detention without authority is not permitted.

Arrest means the arrest of a person on suspicion of violating or violating the law. This happens when a person is caught committing a crime. The arrest was followed by other processes like interrogation and trial. The arrest comes under the jurisdiction of the criminal justice system. An arrest is made when the concerned authorities physically detain someone. The CrPC (Code of Criminal Procedure, 1973) or IPC does not define the term "arrest" (Indian Legal Code, 1860). There is also no explanation given in the laws governing criminal matters. The only indication of the nature of the arrest is found in Section 46 of the Code of Criminal Procedure, which deals with "personal custody".

The concept of arrest is dealt with under the code of criminal procedure but the act has not defined the meaning of arrest. In simple terms, arrest means a restriction laid on a person's right to personal liberty and mobility. It refers to the detention of a person in police custody who is suspected of committing a crime. According to the legal dictionary by Farlex, arrest refers to a seizure or forcible restraint; the exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, particularly in response to a criminal charge

In the case of R.R. Chari v. State of Uttar Pradesh, the Supreme Court defined arrest as a person being taken into custody for a criminal offence. It's basically the seizure of a person in a constitutional sense.

In the case of State of Punjab v. Ajaib Singh, the court noted that arresting someone who has been kidnapped is putting them under restraint. As a result of the allegation or suspicion of committing a criminal offence, that person was taken into legal custody.

The elements that are essential to institute arrest were discussed in the case of Roshan Beevi v. Joint Secretary, Government of Tamil Nadu. It was stated that the arrest has to be fair, seizure or detention of a person is necessary, the person must be in the lawful custody of the person who has been arrested, it must include the person's actual confinement rather than a mere verbal declaration of the arrest, and the arrest has to be by following the lawful procedure as prescribed by the statute.?

Types of Arrest?

As per the Code of Criminal Procedure, 1973, there are two types of Arrest.

1. Arrest without a warrant but within the parameters of the law.
2. Arrest with a warrant?

Arrest without warrant?

As per sections 41,42 and 151 of the Code of Criminal Procedure. The Code of Criminal Procedure, section 41(1) states that any police officer may arrest a person without a warrant if he discovers that the person has committed any cognizable offence, has been in possession of the stolen property, has been declared a proclaimed offender by the state, has obstructed a police officer in the performance of his duty, or has attempted to flee from lawful custody, and so on.?

Arrest on not giving required personal details - Section 42 of the Code of Criminal Procedure states that a police officer has the authority to arrest a person without a warrant, even for a non-cognizable offence, if the arrested person refuses to give his or her name or address to the officer, or if he or she gives a name or address for which the officer has reasonable grounds to believe is incorrect. After determining the true details of the person arrested, the person may be released, but only after posting a bond, with or without sureties, to appear before the magistrate if necessary.

Conditions for arrest - The police officer is also empowered under Section 151 of the CRPC to arrest someone without a warrant if they are suspected of committing a criminal offence. However, there are two conditions that must be met: first, the anticipated crime must be a cognizable crime, and second, the police officer must believe that the crime can only be prevented by arresting the suspect.??

Arrest by private person - Section 43 of CRPC also entitles the authority of arrest to a private person, in the circumstances where the person has proclaimed an offender, has committed a non-bailable or cognizable offence and after arresting the person has to be taken to the police officer or the nearest police station, if the police find the charges and arrest is appropriate then the person will be re-arrested by the police.

Arrest by a magistrate – As per section 42 of CRPC when an offence is committed in the presence of a magistrate within the local jurisdiction of the magistrate, he has the authority to arrest the person himself or can give an order to arrest any person, and commit the accused to custody, subject to the bail conditions. Therefore, The Magistrate has the authority to arrest or direct the arrest of any person in his presence who is within his local jurisdiction and whom he is competent to arrest at that time and in those circumstances.

Arrest of Armed forces – As per section 45 of CRPC, no person belonging to the armed forces can be arrested except in the conditions where the central government has given consent to do so. Furthermore, similar power to that of the central government is vested in the state government too.?

Therefore, by summarizing the sections a series of lists is provided for circumstances under which an arrest can be made without a warrant which are as follows:

1. When the cognizable offence is committed?

Cognizable offences are considered as offences that are serious in nature. For instance, Murder, Rape, Kidnapping, Theft, Unnatural Offences and so on. The punishment for committing a cognizable offence is imprisonment for a term of less than or equal to seven years and is extendable, with or without a fine.

1. When a complaint is made for a cognizable offence?

When a reasonable complaint is made against a person and certain credible information is received or a reasonable suspicion occurs that such person might have committed a cognizable offence arrest without warrant can be made if the police are satisfied with the following conditions :

1. Such arrest is preventing from further commission of a crime.
2. Proper investigation of the crime is conducted.
3. Such arrest is stopping the person from erasing evidence.
4. The person is restrained from further contact with the persons who are well versed with the facts to stop the possibility of inducement or any promise for not appearing to the court to give evidence.

If the police are making an arrest in such conditions they must record and give the reasons why the arrest is being made in writing and if after the complaint arrest is not made police have to record in writing why the arrest is not made.??

1. The person who is being arrested is a proclaimed offender by State or Central government.
2. ?The person who is being arrested has escaped while being in lawful custody or has obstructed the police from executing their duty.?
3. When a released convicted is being arrested has committed a breach of any rule under section 356 (5).?
4. The person being arrested is under suspicion of being a deserter of armed force.?
5. The person being arrested has possession of the stolen property and is a reasonable suspicion to do so.?

For all of the above situations, the police have the power to make an arrest.?

Arrest by warrant

When a person commits an offence that is punishable by life imprisonment, death, or a sentence of more than two years in prison, a warrant is issued. The offence which is committed can be non-cognizable in nature. On behalf of the state, the warrant is issued by a Judge or a Magistrate. Section 70 to section 81 of the Code of Criminal Procedure deals with the procedure of arrest with a warrant. Firstly, the court issues the warrant in writing and must be signed by a presiding officer of the court. Then it must be given to one or more police officers. A warrant directed to a police officer may be executed by any other police officer whose name is inscribed on the warrant. The police officer should then inform the person who was arrested about the situation.?

Procedure of Arrest?

Section 46 of the Code of Criminal Procedure deals with the procedure related to Arrest. According to this section, the arresting officer or person has the authority to touch or confine the person being arrested. In the case when a woman is being arrested, her submission to the custody of an oral intimation of arrest shall be presumed, and she shall not be touched by the police officer at the time of arrest unless the police officer is female except that of certain exceptional circumstances. The force that a police officer may use while arresting a person or while arresting the person who is trying to escape has to be reasonable. Furthermore, the death of a person who is not accused, if caused in circumstances, is punishable with life imprisonment or death.?

To curb personation by the police officers it is mandatory for the police officer to tell their identity. So that the person who is being arrested shall have to be able to recognize his name in a precise, perceptible, and unambiguous way.?

A memorandum of the arrest needs to be prepared by the police, which has to be signed by one of the members of the family of the person who is being arrested. In a situation where no family member is available the member of the locality in which the person is living has to sign the memorandum. The person who is arrested has to also sign the memorandum that is being prepared by the police.?

The Police are duty-bound to inform the accused that he has the right to inform about the arrest to his/her family member if the memorandum is not signed by any of the family members due to their absence.?

The police officer can touch the body of the person who has to be arrested if the person does not voluntarily submit to custody. That means if a person voluntarily submits to the arrest then there is no need to touch the body.

A male officer cannot touch the body of a female person unless there are exceptional circumstances.

If the arrested tries to escape then the police may use force whichever is necessary to arrest the person.

When the arrest of women is to be made after sunset and before sunrise, the women police have first obtain the written permission of the Judicial Magistrate of the first class whose jurisdiction the crime or arrest will be committed. The Code of Criminal Procedure (Amendment) Act of 2005 added this provision to the law. A prior written report can be obtained by obtaining permission from the local jurisdiction's Judicial Magistrate to make an arrest.

Arrest of women

Guidelines with respect to the arrest of women were laid down in the landmark case of State of Maharashtra v. Christian Community Welfare Council of India. It was stated that the presence of women constable must be ensured but in spite of all necessary arrangements women constable is unable to appear then the police officer itself can make the arrest at any time whether day or night, even if the arrest is necessary and the delay cannot be afforded.??

Search of place of the arrested person

According to section 47 of the Code of Criminal Procedure, the person who has the warrant has the authority to conduct the search or enter the premise of the person against whom such warrant is being issued. If the person with a warrant is unable to enter the premise he has the authority to break the door and enter the premise.?

Procedures to be followed before arrest?

As per section 75 of the Code of Criminal Procedure, If a person is arrested with a warrant it is the duty of the police officer to inform the person who is going to be arrested about the grounds of arrest and show the order of arrest. If this criterion is not fulfilled then the arrest will be deemed to be unlawful.

The person who is arrested without a warrant has to be shown to the magistrate within 24 hours of the arrest that is without causing any unnecessary delay. Further, the person must not be moved to any other place other than that of the police station before appearing to the magistrate.?

As per section 50(1) of the Code of Criminal Procedure, when the arrest is made without a warrant the police officer concerned has to tell the grounds of arrest on which the person is going to be arrested.

The arrestee (the person who is arrested) has the right to consult an attorney of his choice during interrogation under sections 41D and 303 of the Criminal Procedure Code, there are many other provisions that talk about the rights of the person who is being arrested.

CONCLUSION?

Article 21 of our Indian Constitution states that no person shall be deprived of his life or personal liberty unless due process is followed. The list of corruption and mismanagement associated with the day-to-day work of the police in various sectors has increased. A person should be seen as an individual whether he is a criminal or not. The defendant has certain rights the basis of which it is enshrined in the Constitution of India. The important basis of these rights is that the state has many resources to prosecute persons who have the exclusive right to protect them from this abuse of power by the state. In any case, in a lawsuit or tribunal representing the defendant, the defendant has certain rights. and must be protected from illegal or illegal detention.?