CHAPTER 5 OF CRCP
INTRODUCTION
“Darkness of Cages shall Allow you to Breathe
For Thou shall not be Killed of Inhumanity!!”
Generally, a person who breaks the law is arrested. So, what is arrest? 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.
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.
Types of Arrest
- An arrest made in view of a warrant issued by a magistrate.
- An arrest made without such a warrant but in accordance with some legal provision permitting such an arrest.
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.
Landmark Case Laws
BirendraKumarRai vs Union of India 1992
It was held that to make an arrest the police officer need not be handcuff the person, and it can be completed by spoken words also if the person submits to custody himself.
It was held in the case of Bharosa Ramdayal vs Emperor, 1941, that if a person makes a statement to the police admitting himself of committing an offence, he would be considered to submitting to the custody of the police officer. Also, if the accused goes to the police station as directed by the police officer, he has again considered to have submitted to the custody. In such cases, physical contact is not required.
In Kultej Singh vs Circle Inspector of Police, 1992, it was held by the court that keeping a person in custody in the police station or confining the movement of the person in the precincts of the police station amounts to arrest of the person.
