ARREST

[Mr. M. GOVINDARAJAN]

‘Arrest’ means apprehension of a person by legal authority resulting in deprivation of his liberty. Every compulsion or physical restrain is not arrest but when the restraint is total and deprivation of liberty is complete, then it would amount to arrest. A person may be required to be arrested in the following circumstances;

• For securing the attendance of accused at a trial, if his attendance is not likely to be ensured by issuing a notice or summons to him and his arrest and detention is the only effective method of securing his presence at trial;
• A person may be arrested as precautionary measure to avoid imminent danger of the commission of a serious crime;
• If a person refuses to give information as required by the Police Officer. It would be proper on the part of the police to arrest such a person with a view to obtain the required information from him;
• Whoever obstructs a police officer in the execution of his duty would be and should be liable to be arrested then and there by such police officer.

The Code of Criminal Procedure contemplates two types of arrests-

• Arrest made in pursuance of a warrant issued by a Magistrate; and
• Arrest made without such warrant but made in accordance with some legal provision permitting such arrest.

An arrest should be made in such a way as to ensure a fair balance between the interests of the society and of the individual.This can effectively be done if the arrest decision is taken by judicial magistrate with a fair measure of impartiality and detachment. A Magistrate, if he wants to arrest, would issue a warrant of arrest. It is a written order issued and signed by the Magistrate addressed to a police officer commanding him to arrest the body of the person named in it. There may be occasions where preventive action may be necessary in order to avoid the danger of sudden outbreak of crime and immediate arrest of trouble maker may be an important step in such preventive action. In such circumstances a Judicial Magistrate cannot take a decision to arrest and issue warrant to arrest.  In such cases the decisions are taken by the police authorities. However a judicial scrutiny is authorized on Magistrate. Every person arrested without a warrant is required to be produced before the Judicial Magistrate within 24 hours of his arrest. Further detention will be illegal unless permitted by a competent Judicial Magistrate.

A warrant for arrest may be issued by a Magistrate after taking cognizance of any offence, whether it is ‘cognizable’ or ‘non cognizable’. First a summon shall be issued to the accused person for his attendance in the court. If the case is a warrant case, warrant for the arrest of the accused may be issued for causing the accused to be brought before the court. Discretion of the Magistrate is given by the Code.  If the Magistrate has reason to believe that the accused has absconded or would not obey the summons, he may issue a warrant for his arrest.                                

Cognizance of any offence can be taken by a Magistrate not only upon a police report but also-

(i) upon receiving a complaint; or

(ii) upon information received from any person other than a police officer; or

(iii) upon the knowledge of the Magistrate himself.

Where the cognizance has been taken on a police report in respect of a non cognizable offence, the Magistrate may issue a warrant for arrest.

A police officer may arrest without a warrant under any of the following circumstances-

• any person actually concerned or reasonable suspected to be concerned in a cognizable offence;
• any person refuses to give his true name or residence the arrest is to be made for the purpose of ascertaining the information of that person; that person may be released on his executing a bond with or without sureties to appear before a Magistrate if so required;  otherwise he shall be forwarded to the nearest Magistrate having jurisdiction;
• any person concerned or reasonably suspected to be concerned in any act committed at a place outside India which if committed in India would be punishable as an offence for which he would be liable to be apprehended or detained in custody in India;
• any person for whose arrest any requisition is received from another police officer competent to arrest that person without a warrant;
• any person reasonably suspected of being a deserter from any of the Armed Forces of the Union;
• any person found in possession of any implement of house breaking without any lawful excuse;
• any person found in possession of property reasonably suspected to be stolen, and who may be reasonably suspected of having committed an offence with reference to such property;
• any person obstructing a police officer in the discharge of his duties;
• any person who has escaped from lawful custody;
• any released convict committing a breach of any rule made under Section 356(5);
• any person designing to commit a cognizable offence which cannot be prevented otherwise than by the arrest of such person.

Any private person may arrest without a warrant any person committing a non bailable and cognizable offence in his presence or any proclaimed offender. Such person shall without delay make over the arrested person to a police officer who then rearrest the said person.

Any Magistrate may arrest without a warrant any person committing any offence within the local jurisdiction of, and in the presence of, such Magistrate or any person within his local jurisdiction for whose arrest he is competent to issue a warrant.

How the arrest is to be made?  Whether the arrest to be made is with a warrant or without a warrant, it is necessary that in making such arrest the police officer, or other person making the same actually touches or confines the body of the person to be arrested unless there by a submission to the custody by word or action.  An oral declaration of arrest without actual contact or submission to custody will not amount to arrest. The Code gives the following powers for effecting an arrest-

• power to use force;
• power to search a place;
• power to pursue;
• power to obtain assistance;
• power to require subordinate officer to arrest;
• power to rearrest escape.

After the arrest all articles, other than necessary wearing apparel, found upon him shall be recovered from the arrested person and a receipt shall be given to him as the articles seized from him.   In case of a woman, this is to be done by another woman police officer with strict regard to decency.  Any weapon is recovered from him the same shall be produced before the Court along with the arrested person.  If the offence with which the arrested person is charged is of such a nature and is alleged to have been committed under such circumstances that the evidence as to the commission of the offence would be afforded by medical examination of such arrested person, then, at the instance of a police officer not below the rank of a sub inspection such examination could be made by a registered medical practitioner in order to ascertain the facts that might afford such evidence. Every Officer in charge of police station is required to report to the District Magistrate the cases of all persons arrested without warrant, within the limits of his station. A person who has been arrested by a police officer shall not be discharged except on his own bond or on bail or under the special order of a magistrate.

The following are the rights of the arrested person:

• Right to be informed of the grounds of his arrest;
• Right to be informed or right to bail;
• Right to be produced before a Magistrate without delay;
• Right of not being detained for more than 24 hours without judicial scrutiny;
• Right to consult a legal practitioner;
• Right to be examined by a medical practitioner.

If the provisions relating to arrest is not followed-

• A trial will not be void simply because the provisions relating to arrest have not been fully complied with;
• Though the illegality or irregularity in making an arrest would not vitiate the trial of the arrested person, it would be quite material if such person is prosecuted on a charge of resistance to or escape from lawful custody;
• If the arrest is illegal, the person who is being so arrested can exercise the right of private defence is accordance with, and subject to the provisions contained in Sections 96 to 106 of Indian Penal Code;
• If the public servant having authority to make arrest, knowingly exercises that authority in contravention of law and effects an illegal arrest, he can be prosecuted for an offence under Section 220 of the Indian Penal Code. Apart from this special provision any person who illegally arrests another is punishable under Section 342 of the Indian Penal Code for wrongful confinement;
• If the arrest is illegal, it is tort of false imprisonment, and the arrested person is entitled to claim damages from the person who made such arrest.