PROCESS OF ARREST WITHOUT WARRANT @LexCliq by Anisha Roy

PROCESS OF ARREST WITHOUT WARRANT

 

In order to make the arrest, the officials of the Police or any of the other authority who is making the arrest such as the magistrate, or any other private person shall be actually touching or confining the body of the person to be arrested unless there be a submission to custody by word or action. However, an oral declaration of arrest without actual contact or submission to custody will not amount to arrest. Provided that where a woman is to be arrested unless the circumstances indicate to the contrary, her submission to custody on an oral intimation shall be presumed and, unless the circumstances otherwise require or unless the police officer is female, the police officer shall not touch the women for making her arrest.

If any such person who forcefully resisting the endeavour for arresting him, or has been attempting for evading the arrest, then code has given them powers for the purpose of effecting arrest. Such police officers or any of the other person might be using all the means that are necessary for affecting the arrest. Firstly, The police may use necessary force to arrest a person if the person to be arrested resists the arrest or attempts to evade the arrest under Section 46(2) of CrPC. However, the power to use necessary force for making an arrest shall not extend to causing the death of a person who is not accused of an offence punishable with death or with imprisonment for life under Section 46(3) of CrPC. 37The person arrested is not to be subjected to more restraint than is necessary to prevent his escape as set out in Section 49 of CrPC.

Secondly, The police should not handcuff the accused. Police are restrained from handcuffing the arrested persons without the prior permission from the 5 concerned Magistrate. Apex Court is not happy about indiscriminate handcuffing of arrested persons by the police, in spite of the courts warnings. Thus, the Supreme Court has ordered in Citizens for Democracy v State of Assam that: “In all the cases where a person arrested by the police is produced before the Magistrate and judicial or non-judicial remand is given by the Magistrate, the person concerned shall not be handcuffed unless special orders in this respect are obtained from the Magistrate at the time of the grant of the remand. When the police arrest 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 also obtained orders from the Magistrate for the handcuffing of the person to be so arrested.

Where a person is arrested by the police without warrant the police officer concerned may, if he is satisfied, on the basis of the guidelines given by us that it is necessary to handcuff such a person, he may do so till the time he is taken to the police station and thereafter his production before the Magistrate. Further use of fetters thereafter can only be under the orders of the Magistrate as already indicated by us.” Under Section 48 of CrPC a police officer may, for the purpose of arresting without warrant any person whom he is authorized to arrest, pursue such a person into any place in India. This provision facilitates the police to conduct and complete investigation of a case in hand promptly and effectively. An officer in charge of a police station, or any police officer holding investigation under Chapter XII of CrPC, can require any subordinate officer to arrest without a warrant (other than in his presence) any person who may lawfully be arrested without a warrant, and shall deliver to the officer so required an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made under Section 55 of CrPC.

IMPORTANT JUDGEMENTS

D.K. Basu v. State of West Bengal

K. Basu, the Executive Chairman, Legal Aid Services addressed a letter to the Chief Justice of India regarding deaths in police lock up and custody. On his request and considering the gravity of issues, it was treated as a writ petition. The court ordered to all the state governments and issued notice to the Law Commission of India to give suggestions within two months. Issue raised was regarding i) Custodial Torture and deaths by the police, ii) Are policemen arbitrary in arresting a person? & iii) Are there any prescribed guidelines while making a arrest? Court answered that the Policemen are not to act arbitrarily while arresting a person and laid down a number of guidelines while arresting a person. The Supreme Court said that, the lockups deaths are to be reduced otherwise it will directly take a toll on the belief of public in law and order. It directed all the High Courts to check on the details and punishment that are being imposed on prisoners in the jails. Guidelines prescribed by the Court are that the arrested person has the right to meet his lawyer and right to medical examination for every 48 hours. The arresting person has to inform the relatives regarding his arrest and shall prepare the memo and has to be attested by at least one witness. He shall have the clear identification of his name, designation. The time, place, arrest and the place of custody have to be notifies to the interested person or the friend or the relative. All the documents including the memo of the arrest has to be sent to the magistrate. An entry must be made regarding his arrest in the diary. Arrested person has to be produced before the magistrate within 24 hours and this is also the fundamental right of an individual under Article 22 of the constitution. The person arrested has to be made aware of his right to have someone notified on his behalf. A police control room should be set up in all the districts and in all the state headquarters and the information regarding the persons arrest has to be communicated to all the districts. The arrested person has a right to remain silent during police inquiry provided by Article 20(3) of the Indian constitution so that the police cannot extract any self-incriminating information against him. The police officer making arrest should not handcuff any person routinely. The arrested person should not be handcuffed except where there is a clear danger of his attempts to escape or when he is so violent that he cannot be kept in custody unless his movement is stopped.

Joginder Kumar v. State of U.P.

The petitioner, Joginder Kumar, a young lawyer was called to the office of the SSP, Ghaziabad for making some inquiries. He was taken to a police station with the assurance that he would be released the next day. Next day, too he was not released by the police for further inquiries. When his family went to the police station on third day, they found that he was taken to an undisclosed location. Joginder kumar was illegally detained over a period of five days. His family filed a habeas corpus writ petition with the Supreme court. A notice was issued by the court to the state of Uttar Pradesh and to the SSP to immediately produce Joginder Kumar and answer why he was detained for five days without a valid reason and why his detention was not recorded by the police in its diary and why he was not produced before a magistrate. Apex Court ruled that an arrest cannot be made on a mere allegation of offence against a person or in a routine manner or on simple suspicion of complicity in an offence. It cannot be made without a reasonable justification reached after some investigation is made as to the genuineness of the complaint. It was directed that, it shall be the duty of the Magistrate, before whom the arrested person is produces, to satisfy himself that these requirements have been complied with. Court also said that an arrested person being held in custody is entitled , if he so requests, to have one friend , relative or other person interested in his welfare , told that he has been arrested and where he is being detained. An entry shall be requested to be made in the diary as to who was informed of the arrest.

Arnesh Kumar v. State of Bihar

In this case Apex Court ruled that an arrested person being held in custody is entitled , if he so requests, to have one friend , relative or other person interested in his welfare , told that he has been arrested and where he is being detained. The police officer shall inform the arrested person when is brought to the police station of this right. An entry shall be requested to be made in the diary as to who was informed of the arrest. The Magistrate is obliged to satisfy himself that there requirements have been complied with.

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