ALL ABOUT ARREST UNDER CrPC @LexCliq by Anisha Roy

ALL ABOUT ARREST UNDER CrPC

WHAT CONSTITUTES ARREST?

In general terms, whenever a person who do or have done something in opposition of law, is arrested. The Criminal Procedure Code of 1973, however, has not defined the term ‘Arrest’. The word arrest ordinarily means the apprehension or restraint or the deprivation of one’s personal liberty. Arrest means a physical restraint put on a person as a result of an allegation of accusation that he has committed a crime or an offence of quasi-criminal nature.” “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.” An arrest is complete as soon as the suspect is no longer free to walk away from the arresting police officer thus depriving arrested person of his or her freedom of movement. After arrest, a person’s liberty is under the control of arrester. The person is taken into custody his will by physical application of force or submission to an officer arresting him/her. It is to note that ‘every deprivation of liberty or physical restraint is not an arrest.’ Only the deprivation of liberty by a legal authority or at least by apparent legal authority, acting, under the color of office and in adept manner leads to arrest. However, a person against whom no accusation of crime has been made may be arrested /detained under a statute for reasons like removal in safe custody from one place to another, e.g., removal of a minor girl from a brothel. Holistically, an arrest is procedure connected with the criminal offences, consisting of the taking into custody under lawful authority, in order to hold or detain the arrested person, to answer a criminal charge, or preventing the commission of the criminal offence or prevent him from absconding. Since an arrest deprives the freedom of an individual, it must be exercised with utmost care and caution. In cases where the accused persons were not arrested by police, but surrendered before the Magistrates, the taking into custody of such persons by Magistrates, will come within the ambit of the term “Arrest” In Roshan Beevi v. Joint Secretary to Government of Tamil Nadu, the Court observed: “The essential elements required to institute arrest, in the above sense, are that there must be an intent to arrest under the authority, accompanied by seizure or detention of the person, in a manner known to the law, which is so understood by the person arrested.”

CUSTODY vs. ARREST

‘Custody’ and ‘arrest’ are not synonymous. The term Arrest is not defined either in the Code of Criminal Procedure Code or any other substantive Acts. When the police charge someone with a crime and then takes them into custody, it is arrest provided the police have sufficient evidence, credible information, or a reasonable cause about the illegal act committed by person. Criminal law expresses custody as second stage of the arrest. Taking of a person into judicial custody is followed after the arrest of the person by Magistrate on appearance or surrender. As per Section 27 of the Indian Evidence Act, 1872 the expression “in Custody” denotes Surveillance or restriction on the movements of the person connected. Custody being the legal right or duty to take care, is state of being guarded, or kept in prison temporarily, especially by the police. In every arrest, there is custody but not vice versa.10 Thus, mere taking into custody of a person an authority empowered to arrest may not necessarily amount to arrest.

REASONS BEHIND ARREST

Arrest can be made in both criminal and civil both. In civil matters, it is the drastic measure and is not looked upon in favor by the court. It can be done for many reasons, they can be:-

  • To find probable cause of the offence.
  • To prosecute or interrogate the accused,
  • To notify society that an individual has committed a crime
  • To deter him from the committing any other crime in the future.
  • For securing the attendance of an accused at trial on the charge of some crime, where his attendance at the time of trial becomes necessary, thus securing administration of law.
  • As preventive or precautionary measure when there is imminent danger of the commission of a serious crime (cognizable offence)
  • For obtaining the correct name and address.
  • For removing obstruction to police to carry out the duty
  • For retaking a person escaped from custody

ARREST OF A PERSON UNDER CrPC, 1973

Section 41 to 60 of Chapter V of the Code of Criminal Procedure,1973 deals with “Arrest of Persons.” An arrest may be classified into two categories namely, (i) Arrests under warrants issued by a court; and (ii) Arrests without warrants issued by a court. Administrative authorities like the police, the Judicial Magistrate, and/or any private person, can make an arrest of an individual under the provisions of Criminal Procedure Code. The code 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.

CONCLUSION

Arrest can be defined as a seizure as well as forcible restraint, an exercise of the power for depriving a person very far from his or her liberty to do anything their own. There are four components of arrest- A seizure or touching of a person’s body; followed by words such as “you are under arrest”; the person’s submission to the compulsion; the police informing the person of the true grounds for his arrest. The Code provides provisions with regard to situations where any person who is a suspect in regards to any crime happened can be arrested from the side of the police officers or any private person or magistrate even the warrant has not been issued from the side of the court. The exigencies of the circumstances may require a person to be arrested without warrant if such person is reasonably suspected to have committed a cognizable offence.

Even in case of a non-cognizable offence immediate arrest without warrant may become necessary to ascertain the name and address of the offender perpetrating the crime. Although so many attempts has been done for issuing the proper types of guidelines for the eradication of the possible aspect in regards to committing of the torture from the side of the officials of the Police, common instances has been observed in regards to the death in the custody as well as the atrocities of the Police. There are many judicial decisions where it was revealed that due to the unawareness among people about their rights, this power of arrest without warrant which was meant to secure the peace in the society is being misused. It is not denying the fact that the arrest brings demoralising and diminishing effect in on person’s personality. The person so arrested becomes outrageous, alienated and hostile. Thus, every attempt and caution should be made on the part of arresting authorities that there exist a balance between the security of a state and individual freedom.

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