Friday, November 22, 2013

Arrest how made and rights of arrested person

What is ‘arrest’?

The term ‘arrest’ is not defined either in the Procedural Acts or in the various Substantive Acts, though Section 46, Cr.P.C., lays down the mode of arrest to be effected.

The word ‘arrest’ is derived from the French ‘Arreter’ meaning ‘to stop or stay’ and signifies a restraint of the person.

Stroud's Judicial Dictionary, 4th Edition, volume 1, at page 184, defines the word as follows:  ‘arrest’, is when one is taken and restrained from his liberty.

Black’s Law Dictionary gives the following definition- ‘arrest’: to deprive a person of his liberty by legal authority. Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand.

According to the text book ‘The Criminal Prosecution in England’ by Patrick Devlin- The police have no power to detain any one unless they charge him with a specified crime and arrest him accordingly. Arrest and imprisonment are in law the same thing. Any form of physical restraint is an arrest and imprisonment is only a continuing arrest. If an arrest is unjustified, it is wrongful in law and is known as false imprisonment.

Winn, L.J., in R vs. Palfrey; R vs. Sadler (1970) 2 All ER 12, when delivering the judgment of Court of which Lord Parker, C.J., was a member, said, in explaining the term ‘arrest’ : ‘It is not a question whether or not certain conditions precedent have been satisfied. The question is merely whether or not he is a person who is under arrest; whether he is under arrest or not depends on whether he is free to go as he pleases, or has been told that he is in a state of custody’.

Mode of Arrest

The modality of arrest as contemplated under Section 46 of CrPC is that while making an arrest a police officer or other person making the same

(1) should actually touch the body of the person to be arrested or
(2) should actually confine the body of the person to be arrested.

These kinds of modality of arrest are not necessary in case the person intended to be arrested submits, either by words or by action, to the authority of the arrester.    

The arrest should not only be legal and justified but it should be effected strictly according to the procedure established by law. Article 21 of the Indian Constitution provides- No person shall be deprived of his life or personal liberty except according to procedure established by law. The procedure contemplated by this Article must be ‘right, just and fair’ and not arbitrary, fanciful or oppressive.

The Criminal Procedure Code contains various provisions by and under which various authorities and private persons are empowered to arrest. An analysis of the provisions under the Code shows that a person may be arrested by 

(1) A police officer without a warrant under Sections 41(1) and 151; under a warrant under Sections 72 and 74; under the written order of an officer in charge of a police station under Sections 55 and 157; under the orders of Magistrate under Section 44 and in non-cognizable offence under Section 42;

(2) A superior police officer under Section 36; 

(3) An officer in charge of a police station under Sections 41(2) and 157; 

(4) A Magistrate under Section 44; 

(5) A military officer under Sections 130 and 131; and 

(6) A private person without warrant under Section 43; under a warrant under Sections 72 and 73; under the orders of the police officer under Section 37; and under the orders of a Magistrate under Sections 37 and 44.

Rights of Arrested person

Under the Cr.P.C., the police has been given various powers for facilitating the making of arrest, but these powers are subject to certain restraints. The imposition of the restraints can be considered, to an extent, as the recognition of the rights of the arrested person. The various rights of the arrested person are as follows:

(1) Right to know the grounds of arrest 
According to Section 50(1) Cr.P.C., every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. 
Section 50(2) of Cr.P.C. provides that in case of bailable offences, the arrested person shall be informed by the police officer, that he is entitled to be released on bail. This is also a constitutional right guaranteed under Article 22(1) of the Indian constitution- No person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds for such arrest. 
It may be noted that if the arrest is made by a Magistrate without a warrant under Section 44, the case is covered neither by any of the Sections 50, 55 and 75 nor by any other provisions in the code requiring the Magistrate to communicate the grounds of arrest to the arrestee. However, in practice, the Magistrate would still be bond to state the grounds under Article 22(1) of the Constitution.

(2) Right to be taken before a magistrate without delay. 
The person making the arrest must bring the arrested person before a judicial officer without necessary delay. It is also provided that the arrested person should not be confined in any place other than a police station before he is taken to the Magistrate (Section 56 Cr.P.C.). 

(3) Right of not being detained for more than 24 hours without judicial scrutiny. 
An arrested person has the right to be brought before a Magistrate within a period of not more than 24 hours of arrest (Section 57 Cr.P.C.; Article 22(2) of the Constitution).

(4) Right to consult a legal practitioner/Legal Aid. 
The Constitution as well as the Code of Criminal Procedure recognizes the right of every arrested person to consult a legal practitioner of his choice (Article 22(1) of the Constitution; Section 303 of the Cr.P.C.).

(5) Right to be examined by a Medical Practitioner. Section 54, Cr.P.C., gives the accused the right to have him medically examined to enable him to defend and protect himself.

The Apex Court in D.K. Basu vs. State of West Bengal AIR 1997 SC 610 laid down certain basic requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as a measure to prevent custodial violence. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of arrestee. Some of the directions are as follows : 

(1) the police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. 

(2) The police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. 

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

Disclaimer- All the contents are for general use and information. Consult your lawyer before acting.