The term “Arrest” is defined as the act of cognizance of a person by the legal authority so as to take him into custody by causing a deprivation of liberty. Therefore, after an arrest, a person’s liberty is in control of the arrester (i.e. either the Police or a private person). As stated in the criminal law, an arrest is an essential instrument for bringing an accused before the court and to prevent him from absconding. An arrest is made in order to present the accused before the court or to keep a check on the administration of the law. It is also made to serve the purpose of informing the society who has been accused of a crime and warns the accused from committing other crimes. According to Indian legislation, the Criminal Procedure Code, 1973 mentions ‘arrest’ under sections 41 to 61.
Procedure Of Arrest
Section 46 of the Criminal Procedure Code, elucidates the different ways in which an arrest can be carried out (i.e. with or without a warrant). Furthermore, Section 46(1) talks about “A Police Officer or a private person who carries out an arrest of another person, shall touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.” Since an arrest constitutes of restraint of freedom of the of the person, it is required of the person being arrested, to submit himself to custody or else, the arrester must touch and confine the body as deemed necessary. ‘Arrest’ does not constitute of mere oral declarations by the arrester i.e. the arrester cannot simply declare the arrest of a person without any submission to custody or cannot physically touch to confine the body. In the case of Bharosa Ramdayal v. Emperor, ‘it was stated if a person makes a statement to the Police, confessing of the offence committed by him, or if directed and the accused proceeds to the Police Station, it would be considered as having submitted himself to the custody of the Police Officer, therefore, leaving no scope of physical contact.’ Talking of oral declaration, the case of Birendra Kumar Rai v. UOI stated that an arrest is not necessarily made by handcuffing a person, it can be carried out by spoken words (i.e. orally), if the person submits to custody. A Government official or a private person has the authority to make an arrest of any person by using all means required if a person resists or attempts to escape the arrest. Section 48 under Criminal Procedure Code states that ‘A police officer may, for the purpose of arresting without warrant any person who is authorized to arrest, pursue such person into any place in India’.
Detention’ is defined as the act of reserving a person or property. Whereas, ‘illegal detention’ is the unsubstantiated imprisonment or unlawful deprivation of liberty of an individual by arresting for an illegitimate cause or suspicion, along with continuous restraint on one’s personal liberty by detaining such individual in custody. There stands a massive difference between the definitions of ‘arrest’ and that of ‘detention’, therefore, it is necessary for one to know how to differentiate between the two. ‘Arrest’ under the Criminal Procedure Code has a different procedure altogether while detention is not as grave as arrest; detention is of a shorter time period than arrest, therefore, needs less burden of proof. A Police officer can detain an individual, if he has reasonable doubt or suspicion that a crime has been or will be committed, or if he reasonably believes that an individual may have information regarding the same, the Police officer may then have the liberty of detaining the individual for a short span of time, in order to investigate into the matter. If an individual is ever detained, the authorities are allowed to
Frisk the person for any weapons, Seek information regarding the crime that is believed to occur.Lastly, unlike an arrest where a person can be held in custody for up to 24 hours or more, but according to the ruling of a reasonable timeframe, a person can approximately be detained up to 20 minutes, depending on the circumstances.
Rights Of Arrested Persons
Along with giving a wide set of arresting powers to the Police, therefore, the Criminal Code also lays down laws for the person being arrested in order to maintain appropriate safeguards for the society. At various instances the persons being arrested have faced issues regarding misuse of power by the Government officials, hence, the Criminal Code provides a set of rules that protect the arrested persons by giving them certain rights (can be used when the power in the hands of the Police is being used arbitrarily, in order to meet the needs of a ‘fair trial’). An arrested person enjoys these rights either at the time of arrest or at the time of trial, following are the rights prescribed in the Criminal Procedural Code:
According to Section 50(1) Criminal Procedure Code, a person holds the right to be informed i.e. u/a 22 of the Indian Constitution, it is a fundamental right of every citizen that at the time of arrest, it is the duty of the Police to inform the arrestee the grounds of the offence committed by him for which he is being arrested. The Police are further required to inform the person as to the offence committed is of bailable or non-bailable in nature.
With respect to non-cognizable offences, an arrest can only be made a warrant and the warrant should be made available for an arrested person to see. Therefore, the right to see the warrant u/s 75 Criminal Procedure Code provides for the arrested persons to check whether the warrant contains the necessary details i.e. whether the warrant is in writing or not, the warrant should be signed by the presiding officer, should also have the court’s seal on it along with the name, address and the offence committed by the accused (if any of the details are missing, the warrants stands null and void).
Section 56 of Criminal Procedure Code talks about the right of an arrested person to be produced before the Magistrate i.e. “A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, lake or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.”
Any individual arrested cannot be held in custody for more than 24 hours; Section 57 of Criminal Procedure Code states that “No police officer shall detain in custody a person arrested without 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.”
Furthermore, Sections 41D and 303 of Criminal Procedure Code allow the arrested person to enjoy the right of meeting with an advocate of his discretion, during the interrogation.
Section 50 of the Criminal Procedure Code provides right to inform a family member, a friend or a relative of the arrested person.
Sections 54 of the Criminal Procedure Code provide rights to the arrested person of having medical assistance right after the time of arrest (for both male and female), along with Section 55A stating “It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused.”
Lastly, Article 20(3) allows the arrested person to use his right to remain silent in order to prevent the Police to extract self-inculpatory statements out of the accused.