Generally, a person who breaks the law is arrested. In general term, ‘arrest’ would mean that when a person is arrested they lose some of their freedom and liberty. They are put under restraint.
The Criminal Procedure Code of 1973, however, that deals with the aspects of arrests, has not defined the ‘Arrest’. When a person is arrested, then the arrested person is taken into custody of an authority empowered by the law for detaining the person. The person is then asked to answer the charges against him and he is detained so that no further crime is committed.
At times, there is restraint by the legal authority but sometimes the person on his own submits to the custody of the person making the arrest. 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.
Who Can Arrest-
The arrest can be made by police, magistrate and even a private person
Section 41(1)– CrPC Says: Any police officer- may without an order from a magistrate and without a warrant arrest any person who has committed a cognizable offence, who is in possession of stolen property, or is a state offender, who obstructs a police officer in discharge of his duty, who attempts to escape from lawful custody, who is declared as a deserted from any of the Armed Forces of the Union, who is a released convict and breaches his contract of release etc.
Section 42– authorizes a police officer to arrest a person for an offence which is non-cognizable if the person to be arrested refuses to give his name and residence.
Section 43– gives the right to a private person like you and me to carry out an arrest of a person who in his presence commits a cognizable or a non-bailable offence or who is a proclaimed offender. Section 44 arrest by magistrate as per section 44(1) of CrPC, the Magistrate has been given the power to arrest an individual who has committed an offence in his presence and also commit him to custody.
However, CrPC exempts the members of Armed forces from being arrested for anything done by them in discharge of their official duties except after obtaining the consent of the government (section 45 CrPC).
Section 46 of CrPC explains how arrest is made with or without warrant.
Section 46(4) special protection as females, that forbids 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 obtaining a prior permission from the concerned judicial magistrate of first class within whose local jurisdiction the offence is committed or the arrest is to be made.
Rights of an arrested person-
The Constitution of India has laid down some basic rights for the accused at the time of the arrest. It is part of the Magna Carta (Part-III) of the Constitution. This makes it very crucial in nature. As in case these rights are not enforced, they can be challenged through a writ petition under Article 32 and 226 of the Constitution. It means that these rights in any way cannot be omitted from enforcing as they are fundamental. In addition to the constitution, it is also mentioned in the Code of Criminal Procedure,1973. Rights like Right to be informed, right to be presented before a magistrate within 24 hours, right to consult a legal practitioner of choice finds a place in Article 22 as well in CrPC.
Right to be informed of the grounds of arrest-
Article 22 of the Constitution expressly provides Protection to an accused against arrest and detention
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.
Right to be produced before a magistrate-
Article 22(2) of the Constitution provides that every person who is arrested should be presented before the nearest Magistrate within 24 hours of such arrest, excluding the time of journey from the place of arrest to the place of magistrate. No person will be detained in custody of the police beyond the said period without the authority of the magistrate.
Section 56 and 57 of CrPC also provides for the same. If the person arrested is not presented before the Magistrate within the reasonable time and without a just reason, the arrest will be unlawful.
Protection against arrest and detention-
Article 22 outlines several rights available to an accused in case of arrest and detention. Article 22(1) talks about the duty to inform the accused of the grounds of arrest and to consult a lawyer of choice. Article 22(2) makes it mandatory for the police officer to present the person arrested before a magistrate within twenty-four hours and cannot be detained beyond the said period.
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.
Right to consult a legal practitioner-
Article 22(1) and Section 41D CrPC gives the accused the right to be consulted and defended by a legal practitioner of choice. He is entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation.
