ARREST PROVISIONS UNDER CRPC DISHA GUPTA BASICS OF LAW Mon, Sep 23, 2019, at ,11:41 AM As per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible restraint; an 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, especially, in response to a criminal charge.” In Indian law, Criminal Procedural Code 1973 (hereinafter referred to as CrPC), chapter V (Section 41 to 60) talks about Arrest of a person but it does not define arrest anywhere. The term “Arrest” means “apprehension of a person by the legal authority so as to cause deprivation of his liberty.” Thus, after the arrest, a person’s liberty is in control of the arrester. In criminal law, an arrest is an important tool for bringing an accused before the court and to prevent him from absconding. Hence, not every physical restraint can be termed as an arrest. An arrest of an individual comprises of taking the person into the custody of an authority empowered by the law for detaining the person to answer the criminal charges and to prevent the commission of a criminal offence. WHO CAN ARREST? An arrest can be made by a police officer, magistrate or any private person, like you and me can also arrest any person but the arrest should be made according to the process mentioned under Crpc. Section 45 of Cr.P.C exempts the members of Armed forces from being arrested for anything done by them in the discharge of their official duties except after obtaining the consent of the government. According to Section 43, a private individual may conduct an arrest of another person specifically when the arrested individual is determined to be an offender by proclaiming or commits a non-bailable offence and cognizable offences in the presence of the arresting individual. Furthermore, Section 44 states that a Magistrate, regardless of being Executive or Judicial, may conduct an arrest on a person without a warrant. ARREST BY POLICE OFFICER A police officer may arrest without a warrant under Sections 41 (1) to 151 CrPC; under a warrant under Sections 72 to 74 CrPC; under the written order of an officer in charge under Sections 55 and 157; under the orders of a magistrate under Section 44 and in a non-cognizable offence under Section 42 CrPC. A superior officer may arrest under Section 36 CrPC. An Officer-in-Charge of a Police Station may arrest under Section 42 (2) and 157 CrPC. Under Sections 41, 42, 151 CrPC, a Police officer may arrest without warrant in the following conditions: Who has been concerned in any cognizable offence or Who has in possession, without, lawful excuse, of any housebreaking weapon or Who has been proclaimed as an offender either under CrPC or by order of the State Govt. or Who is in possession of any stolen property or Who obstructs a police officer while in the execution of his duty or who has escaped, or attempts to escape, from lawful custody or Who is reasonably suspected of being a deserter from any of the Armed forces of the Union or Who has been concerned in any law relating to extradition or Who, being a released convict commits a breach of any rule made under sub-section (5) of Section 356 CrPC or For whose arrest any requisition has been received from another police officer specifying the person to be arrested and the offence and other cause for which the arrest is to be made. In the case of Swami Hariharanand Saraswati v. Jailer I/C Dist. Varanasi (1954 CriLJ 1317), the arrested person must be produced before another magistrate within 24 hours, otherwise, his detention will be illegal. In the case of Joginder Kumar v. State of UP (1994 AIR 1349), it was held that no arrest can be made merely because it is lawful to do so. There must be a justifiable reason to arrest. Further, in State vs Bhera (1997 CriLJ 1237), it was held that the “reasonable suspicion” and “credible information” must relate to definite averments which must be considered by the Police Officer himself before he arrests the person. PROCEDURE OF ARREST The mode of arrest is been mentioned under Section 46 with or without a 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 the 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. As per Section 46(1), unless the person being arrested consents to the submission to custody by words or actions, the arrester shall actually touch or confine the body of the person to be arrested. Section 46(2) provides that if any person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or another person may use all means necessary to effect the arrest. Thus, if the person tries to run away, the police officer can take actions to prevent his escape and in doing so, he can use physical force to immobilize the accused. However, as per Section 46(3), there is no right to cause the death of the person who is not accused of an offence punishable with death or with imprisonment for life, while arresting that person. Further, as per Section 49, an arrested person must not be subjected to more restraint than is necessary to prevent him from escaping. Due to concerns of violation of the rights of women, a new provision was inserted in Section 46(4) that forbids the arrest of women after sunset and before sunrise, except in exceptional circumstances, in which case the arrest can be done by a woman police officer after making a written report and obtaining a prior permission from the concerned Judicial Magistrate of First class. In the case of Birendra Kumar Rai v. Union of India (1992 CriLJ 3866), it was held that arrest need not be by handcuffing the person, and it can also be complete by spoken words if the person submits to custody.