The arrest of a Person in CRPC – In this article, we are providing the detailed procedure of Arrest of a person under crpc and also the types and provision of arrest under crpc Criminal procedure code
Arrest of a Person in CRPC
A) Introduction –
Chapter V of the Criminal Procedure Code, 1973 from Sec.41 to 60A provides for the procedure for arrest of persons who have committed an offence under IPC or any other law in force in India. The provisions of this Chapter are amended by the Criminal Law Amendment Act, 2005, 2008, 2010,2018.
In the Criminal Law Amendment Act,2005 subclause (4) to sec.46, Sec.50A, Sec.53A, Sec.54A, were added and Sec.54 was substituted. Also through Criminal Law Amendment of 2008, Sec.41 A, 41B, 41C, 41D, 55A, 60A was added. By Amendment of 2010 includes subclause amendments to sec.41 & sec.41A. Most recently Cri.Law Amendment Act,2018 amended sec.154 & 154A. Chapter XI of this Code I .e.Preventive action of police from sec.149 to 153 also incorporate provision for arrest without warrant.
B) Powers to/Types of Arrest under CrPC –
Under CrPC powers of arrest are given to following persons -:
1) Arrest by Police (Sec.41)
2) Arrest by Private Person( Sec.43)
3) Arrest by Magistrate. (Sec.44)
Arrest of person under crpc
C) The procedure of Arrest –
The procedure of arrest mentioned under sec.41 to 60A. can be explained as follows:
Sec.41 – When Police may arrest without warrant
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person –
(a) who commits, a cognizable offence in the presence of a police officer;
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that such person has committed a cognisable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-
(i) if the police have reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) if the police officer is satisfied that arrest is necessary –
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from tampering with evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to prevent him from disclosing such facts to the Court or police officer; or
(e) for ensuring the presence of such person in Court whenever required and the police officer shall record his reasons in writing while making such arrest.
Provided that a police officer shall, record the reasons in writing for not making the arrest, in all cases where the arrest is not required under this subsection.
(ab) against whom credible information has been received that he has committed a cognisable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with a death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence.
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d)in whose possession stolen property is found and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e)who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f)who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or –
(g)against whom a reasonable complaint has been made, information received, or suspicion exists of he is concerned in, any act committed at any place out of India which if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be detained in custody in India; or
(h)who, being a released convict, commits a breach of any rule, made under sub-section (5) of section 356; or
(i)for whose arrest any requisition, written or oral, has been received from another police officer, which specifies the person to be arrested and the offence for which arrest is to be made and it appears therefrom that such person might lawfully be arrested without a warrant by the officer who issued the requisition.
(2)Subject to the provisions of Section 42, no person concerned in a non-cognisable offence shall be arrested except under a warrant or order of a Magistrate.
Sec. 41A – Notice of appearance before police officer –
(1) The police officer shall, in all cases where the arrest of a person is not required under subsection (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, that he has committed a cognisable offence, to appear before him or at any other place as specified in the notice.
(2) such person to whom notice is issued shall comply with the terms of the notice.
(3) where person complies with the notice he shall not be arrested for offence mentioned in the notice and if a police officer is of opinion that he ought to be arrested he shall record reasons.
(4) where a person fails to comply with the notice or is unwilling to identify himself the police officer may arrest the person for offence mentioned in the notice, subject to orders may have been passed by the competent Court.
Sec.41B – Procedure of arrest & duties of the officer making an arrest –
Every police officer making the arrest shall –
(a) bear accurate, visible, clear identification of his name
(b)prepare a memorandum of arrest which shall be :
i) attested by at least one witness who is a family member of the person arrested or member of society where the arrest is made
ii)countersigned by the person arrested
(c) inform the arrested person that he has the right to inform relative or friend about his arrest if his memorandum of arrest is not attested by a family member.
Sec.41C – Control room at district-
(1) The State Govt. shall establish police control room –
a) in every district and
b) at the state level
(2) In every district, notice board shall be displayed outside the control room mentioning names & addresses of the person arrested and also the name & designation of a police officer who made the arrests.
(3) The control room at Police HQ at state level shall time to time collect details about the person arrested, the offence charged, and maintain such a database for information of the general public.
Sec.41D- Right of arrested person to meet an Advocate –
The arrested person has the right to meet an Advocate of his choice during interrogation but not throughout the interrogation.
Sec.42 – Arrest on refusal to give name and residence. –
(1) When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognisable offence refuses, on demand of such officer, to give his name and residence or gives a false name or residence, he may be arrested by such officer in order that his name or residence may be ascertained.
(2) After receiving true name & residence, he shall be released on executing a bond with or without sureties for appearing before Magistrate if required.
If such person is not a resident of India, the bond shall be secured by sureties resident in India.
(3) If true name or residence is not ascertained within 24 hours from the time of arrest or if he fails to execute the bond, to furnish sufficient sureties, he shall be forwarded to the nearest Magistrate.
Sec.43 – Arrest by private person and procedure on such arrest –
(1)Any private person may arrest a person who commits in his presence a cognizable & non-bailable offence or any proclaimed offender & shall without delay handover such person to a police officer or in the custody of nearest police station in absence of police officer.
(2) If there is reason to believe that such person comes under Sec.41 then police officer shall re-arrest him.
(3) If such a person has committed the non-cognizable offence and refuses to give name & residence or gives false name & residence, he shall be dealt under the provision of sec.42.
But if there is no sufficient reason to believe that such person has committed any offence he shall be released.
Sec.44 – Arrest by Magistrate –
(1) Judicial or Executive Magistrate may arrest or order the arrest of any offender for the commission of an offence in their presence, within their local jurisdiction and subject to provisions of bail, commit such offender to custody.
(2) Judicial or Executive Magistrate at any time arrest or direct the arrest in his presence within his local jurisdiction of any person for whose arrest he is competent to issue a warrant.
[C] OTHER PROVISIONS IN THE CHAPTER –
Sec.45 – Protection of a member of Armed Forces from arrest –
(1) Notwithstanding anything contained in sec.41 to 44, no member of Armed Forces of Union shall be arrested for anything done in discharge of his official duties except after obtaining the consent of Central Govt.
(2) The state govt may by notification direct that provisions of above subsection(1) shall apply to such members of Force appointed for the maintenance of public order in the state.
Sec.46 – Arrest how made –
(1) An arrest may be made by touching or confining the body of the person to be arrested unless submission by word or action.
Provided that, a woman shall only be arrested by female police officer & police officer other than female police officer shall not touch the person of a woman for making an arrest.
(2) If a person forcibly resists the arrest or attempt to evade arrest such police officer or other people may use all necessary means to effect the arrest.
(3) Nothing in this section gives the right to cause the death of a person who is not accused of an offence punishable with death or imprisonment for life.
(4) No woman shall be arrested after sunset and before sunrise. Such arrest can only be made in exceptional circumstances with the prior permission of Judicial Magistrate of First Class within whose local jurisdiction offence is committed or arrest is to be made.
Sec.47 – Search of place entered by person sought to be arrested. –
(1) If any person or police officer acting under warrant of arrest or having authority to arrest has reason to believe that person to be arrested has entered into the place of any residing person or having charge of such place shall permit such person or police officer for search therein with all reasonable facilities.
(2) even if permission to enter such a place cannot be obtained under subsection (1), it shall be lawful for the person acting under a warrant to enter such place.
provided that if such place is an apartment in actual occupancy of female (who is not the person to be arrested) who, according to custom does not appear in public shall be given notice by such police to withdraw herself, and after that police officer may enter such place.
(3) Any police officer or person authorised to arrest may break open any outer or inner door, the window of any house or place in order to liberate himself, entered for the arrest of a person in such place.
Sec .48 – The pursuit of offenders into other jurisdictions. –
A police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India.
Sec.49 – No unnecessary restraint. –
The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.
Sec.50. A person arrested to be informed of grounds of arrest and of right to bail. –
(1) Every police officer or any other person arresting person, without a warrant shall forthwith inform to him full particulars of offence for which he is arrested or other grounds for such arrest.
(2) Where a police officer arrests without warrant, and who is not a person accused of a non-bailable offence, the police officer shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.
Sec.50A – Obligation of the person making an arrest –
(1) Every police officer or any other person making an arrest under this Code shall after arrest give information about such arrest and place where the person arrested is being held to any of his friends, relatives or other persons as may be disclosed by an arrested person for giving such information.
(2) The police officer shall inform the arrested person of his rights under sub-Section (1) as soon as he is brought to the police station.
(3) The information of persons informed about such arrest shall be kept in a book as prescribed by state govt.
(4) It is the duty of Magistrate before whom person arrested is produced that he shall satisfy himself that above requirements under subsection (2) &(3) are complied with.
Sec.51 – Search of arrested person –
(1)When a person is arrested by a police officer under a warrant which does not provide for taking of bail or bailable warrant but person arrested cannot furnish bail and whenever an arrest is made without a warrant, the officer making an arrest may search arrested person and place in safe custody all articles, other than necessary wearing-apparel found upon him and where any article is seized from an arrested person, a receipt showing the article taken in possession by the police officer shall be given to such person.
(2) when a female arrested person is to be searched, such search shall only be made by a female officer with strict regard to decency.
Sec. 52 – Power to seize offensive weapons
The officer arresting person may take offensive weapons from such arrested person which he shall deliver in Court or officer before whom arrested person will be produced in accordance with the provisions of this code.
Sec.53 – Examination of accused by medical practitioner at the request of a police officer –
(1)When a person is arrested for the offence of such a nature & circumstances of whom examination will afford the evidence as to the commission of the offence. Such examination is carried out under the direction and request of a police officer, not below the rank of sub-inspector by a registered medical practitioner acting at such request, make an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.
(2) Whenever a female person is to be examined such examination shall be made only by or under supervision of a female registered medical practitioner
Sec.53A – Examination of accused of rape by a medical practitioner –
Such examination can be performed by –
1) Registered medical practitioner employed in a state-run hospital
2) In the absence of such medical practitioner mentioned above in a radius of 16 km from the place where the offence is committed by any other registered medical practitioner.
– for affording or collecting evidence as to the commission of offence on the request of a police officer not below the rank of sub-Inspector and reasonable necessary force can be used for conducting such an examination.
– The registered medical practitioner conducting such examination shall prepare a report with the following particulars:
(i) the name & address of accused and of the person by whom he was brought,
(ii) the age of accused,
(iii) injury marks, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and
(v) other material particulars in reasonable detail.
(3) The report shall precisely include the reasons for each conclusion arrived at.
(4) The exact time of commencement and completion of the examination shall also be given in the report.
(5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in Section 173 as part of the documents referred to in clause (a) of sub-Section (5) of that section.
Sec.54 – Examination of arrested person by the medical officer. –
(1) On the arrest of a person such arrested person shall be examined by the medical officer in the service of central or state govt and by registered medical practitioner soon after the arrest, in absence of such medical officer.
In the case of an arrested female person, such examination shall be done only female medical officer or female registered medical practitioner, in absence of a female medical officer.
(2) medical officer examining such person shall prepare a record of examination mentioning injury, marks, marks of violence upon the arrested person & approximate time when such marks may have been inflicted.
(3) copy of such report shall be given to an arrested person or person nominated by an arrested person.
Sec. 54A – Identification of person arrested :
Where a person is arrested on a charge of committing an offence and his identification by other person or persons is necessary for the purpose of investigation of offence, the Court, having jurisdiction may, on request of the officer in charge of a police station, direct the person so arrested to subject himself to the identification.
provided that, if person identifying an arrested person, is physically or mentally disabled such identification process shall take place under the supervision of Judicial Magistrate ensuring methods comfortable for such person & such identification process shall also be videographed.
Sec. 55 – Procedure when police officer deputes subordinate to arrest without warrant
(1) When any officer-in-charge of a police station or police officer making an investigation under Chapter XII requires any of his subordinate officers to arrest without a warrant (not in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer making such arrest order in writing, specifying person to be arrested and the offence for which arrest is to be made an officer making such arrest shall, before making an arrest, notify to the person to be arrested, the substance of the order and, if required by such person, shall show him the order.
(2) nothing in sub sec.(1) affects the power of police officer to make an arrest of any person under sec.41.
Sec. 55A – Health and safety of arrested person –
It is the duty of the person having the custody of an accused to take reasonable care of health and safety of the accused.
Sec. 56 – Person arrested to be taken before Magistrate or officer-in-charge of the police station :
A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer-in-charge of a police station.
Sec. 57 – Person arrested not to be detained more than twenty-four hours :
No police officer shall detain in custody a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.
Sec.58 – Police to report apprehensions –
The persons arrested without a warrant within limits of stations shall be reported to District Magistrate or if he directs Only to Sub Divisional Magistrate whether such persons are admitted to bail or otherwise.
Sec. 59 – Discharge of person apprehended
The arrested person shall not be discharged except upon his bond or on bail under the special order of Magistrate.
Sec.60 – Power, on escape, to pursue and re-take :
(1) If a person in lawful custody escapes the person from whose custody he is escaped may immediately pursue & arrest him in any place in India.
(2) The provision of sec.47 shall apply to arrest under sub-sec (1) even if the person making an arrest is not acting under warrant or is not police officer having authority to arrest.
Sec.60A – Arrest to be made strictly according to the Code –
No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest.
CHAPTER – XI – Sec. 151 – Arrest to prevent the commission of cognizable offence –
(1)A police officer may arrest any person without a warrant if such person is designed to commit a cognizable offence & for prevention of commission of such offence.
(2) No person arrested under sub-sec.(1) shall be detained in custody for more than 24 hours from the time of his arrest, unless required for further investigation authorized under provisions of Code.
D) CASE LAWS –
1) Arnesh Kumar vs the State of Bihar, (2014 (8)SCC 273 )
2) D.K. Basu vs State of West Bengal (1997 (1) SCC 416)
3) Joginder Kumar vs State of UP (1994 (4) SCC 260)
Rights of Arrested Person
1) Right To Know The Grounds of Arrest
2) Right to know the right of Bail
3) Right to a Fair trial
4) Right to be produced before a magistrate
5) Right to consult a legal practitioner
6) Right to free legal Aid and to be informed about it
7)Right to be examined by a medical practitioner
8) Right To Silence
By Wamiq Khan at LexCliq