PROVISIONS RELATED TO ARREST UNDER CRPC (Part1)
PROVISIONS RELATED TO ARREST UNDER CRPC (Part 1)
An Arrest is an act of taking a person into custody as he/she may be suspected of a crime or an offence. It is done because a person is apprehended for doing something wrong. After arresting a person further procedures like interrogation and investigation is done. It is part of the Criminal Justice System. In an action of arrest, the person is physically detained by the concerned authority.
The term Arrest has been defined neither in the CrPC (The Code of Criminal Procedure,1973) nor IPC (Indian Penal Code,1860). The definition has not been provided even in any enactments dealing with Criminal Offences. The only indication of what an arrest constitutes can be made out of Section 46 of CrPC which deals with ‘How an arrest is made’.
If broadly characterized arrest is of two types-
- Arrest made in pursuance with a warrant issued by the magistrate.
- Arrest made without any warrant but within the established legal provisions.
Another type of arrest is Private Arrest in which a person is arrested by another person. But it is allowed only in case a person commits a non-bailable offence in another person’s presence or is apprehended of committing a crime against a person or his property and when he is not given the correct address of his residence or it is unknown. But before arresting a person there should be sufficient apprehension and justifiable cause to arrest that particular person.
Section 41 says the police officer has to be satisfied that such arrest is necessary:
- To prevent such person from further committing such offence
- For purposes of investigation
- Prevent the person from causing evidence to disappear.
If a person commits an offence which is non-arrestable then a warrant is necessary to be issued. The police cannot make such an arrest without a warrant. The warrant is issued by a Judge or a Magistrate on behalf of the state. An arrest warrant authorizes the arrest or detention of the person or capture or seizure of an individual’s property. Section 41(1) of CrPC,1973 explains when a person can be arrested without any warrant. Section 41(2) of CrPC, 1973 states that subject to the condition in Section 42, a person cannot be arrested without a warrant and an order of the magistrate in case of non-cognizable offence and where a complaint is made. The procedures to be followed while arresting a person find its mention in Section 46 of the Code. Section 41A – gives direction to the police officer to issue a notice to the person if he feels the person is not required to be arrested. This in effect means that contrary to popular perception, a police officer is not required to arrest a person if he does not think such arrest is not required for the purposes mentioned in Section 41 mentioned above.
Section 41B – enjoins that while making an arrest the police officer shall: –
- a) bear an accurate, visible, and clear identification of name which will facilitate the identification.
- b) prepare a memo of arrest which shall be:
- Attested by one family member or member of the society.
- counter signed by the accused.
- This evidently is in terms of Article 20/21 which insulates a person from
Section 41-C: When a memo is not attested by a family member, the person so arrested must be informed that he has a right to inform a family member. This once again protects a person from arbitrary arrest and prevents mysterious disappearances.
Section 41-D: The person arrested can meet an advocate of his choice during interrogation. This is once again in line with the constitutional right of a person to counsel, even if it is free.
Arrest on refusal to give name and residence
Section 42 of CrPC states the course of action in case of arrest on refusal to give name and residence.
Section 42(1) says that when a person has committed a non-cognizable offence refuses to give his name or address or gives a false name and address on the demand of the officer, he may be arrested by such officer to ascertain his correct name or residence.
Section 42(2) says that the person so arrested may be released after ascertaining the true name or residence but only after executing a bond, with or without sureties, to appear before the magistrate if required. But if the person is not a resident of India then the bond should be secured by a security or securities resident of India.
Section 42(3) says that if the true name or address of the person is not found within twenty-four hours or if he fails to execute the bond or required sureties then he has to be presented before the magistrate falling within the jurisdiction.
Procedure of arrest by a private person
The procedure of arrest by a private person is expressly provided in Section 43 of the Criminal Procedural Code.
Section 43(1) states that a private person can arrest another person who commits a non-bailable offence or any proclaimed offender and without wasting any unnecessary time can be taken to a police officer and in the absence of the officer the accused has to be taken to the nearest police station.
Section 43(2) says that if the arrest of that person comes under Section 41, the police officer shall re-arrest him.
Section 43(3) provides that if there is sufficient reason to believe that he has committed a bailable offence and refuses to give his true name or address to the police officer, he shall be dealt with according to the provisions of Section 42. But he shall be released if there is no sufficient reason to believe that he has committed an offence.
Arrest by magistrate
Magistrate here includes both an executive or judicial Magistrate. According to Section 44(1) of CrPC when an offence is committed in the presence of a magistrate within his local jurisdiction, he has the power to arrest that person himself or order any person for arrest and subject to the conditions relating to bail, commit the accused to custody.
Section 44(2) in addition to clause 1 also provides that the Magistrate can also arrest or direct any person in his presence, within his local jurisdiction of whom he is competent to arrest at that time and in the circumstances to arrest.
An exception of the Armed forces
The members of the Armed Forces are protected from arrest as provided in Section 45 of CrPC.
Section 45(1) states that no member of the armed forces can be arrested for anything done while discharging the official duties except with the consent of the Central Government. It is subject to the conditions mentioned in Section 41-44 of the Code.
Section 45(2) lays out that the State Government may through a notification can direct that the sub-section (1) shall apply to any class or category of members of Armed forces who are charged with the maintenance of public order as may be specified thereupon, whenever they are serving. In other words, the State government just like the Central Government is empowered to use the power mentioned in sub-section (1).
Provisions related to arrest of women
Section 46(1) There should be a female officer to arrest a female.
Section 46(4) prescribes that no women shall be arrested after sunset and before sunrise, unless in exceptional cases, and female officers shall make the arrest in exceptional cases with permission of the Judicial magistrate.
Section 50 enjoins the police officer to inform the arrested person about the grounds of arrest and that he is entitled to the right of bail and he could arrange the sureties.
Section 50(A)(1) makes it obligatory for the police officer making the arrest to
immediately inform the arrestee’s friends, relatives or such other persons about the place
where the arrested person is being detained and inform the arrested person of such
rights. Entries of all the arrests shall be kept at the police station.
Section 50(2) says “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”.
Under Section 56, a police officer is to immediately take a person arrested without a warrant before the magistrate having jurisdiction or to the officer in charge of the police station.
Section 57 (A) says that the arrested person shall not be detained for more than 24 hours except the time taken during the journey before the production bef
ore the magistrate.
Section 58 says that the cases of all persons arrested without warrant must be reported to the local DM or SDM.
Under Section 60(A), arrests are to be made strictly according to the code, no arrest shall be made except in accordance with the provisions of the code.
Sec 50 (A)(4) prescribes that it shall be the duty of the magistrate before whom such arrested person is produced to satisfy himself that the requirement of section 50(2) – i.e., that the police had an obligation to inform relatives or such nominated persons where he is being kept in custody and the arrestee had been informed of such an obligation have been complied with.
Section 167 prescribes the procedure after the arrested person is brought before the magistrate. The police officer has to produce the relevant papers, including entries of the case diary. Sub section 3 gives discretion to the magistrate to remand an accused to police custody but only on recording his reasons.
Section 47 of CrPC provides for the search of a place sought to be entered. It further provides that the person having the warrant has the duty to enter the premises of the person being arrested. If the person is not able to easily ingress the premises or is not allowed to enter, then they have the authority to break open the door. It is done to take the person by surprise.
But if there is any female occupying the premises then the person arrested has to give notice to that female to withdraw and shall afford every reasonable facility for withdrawing and they may break the apartment.
Any police officer or person making the arrest is authorised to break open the door in order to liberate himself if he is detained in that process.
Secondly, in the case where the arrest is made under a warrant, the police officer under Section 75 CrPC is required to inform the person arrested about the substance of arrest and if required to show the order. If it is not done the arrest will become unlawful.
The Indian Constitution also supports this and had emphasised upon it in Article 22(1), a fundamental right. It prescribes certain rights that are present with the accused at the time of arrest(fundamental in nature). It says that no person who is arrested shall be detained in custody without being informed about the reason for arrest and consult a legal practitioner of his choice. In re Madhu Limaye case, the petitioner was not informed about the grounds of his arrest along with his companions. He challenged this under Article 32 as it was in violation of his fundamental right before the Supreme Court. The Supreme Court observed that there was a violation of an essential and vital right of the petitioner.
Thirdly, when an arrest is made without a warrant by a police officer, it is his duty to show before the magistrate without unnecessary delay (usually within 24 hours). It is also mentioned that the person arrested cannot be taken to any place other than the police station before presenting before the magistrate. This is provided in Article 22 with Section 56 and Section 76 of the CrPC. However, there is a practice of detaining the person in isolation due to Covid -19, and the duration is not calculated towards 24 hours; which in the eyes of the author bad; because if a person is required to be produced before magistrate in 24 hours, then he can be so produced even through video conferencing, without having to produce him personally. Therefore, compromise with the constitutional provisions should not be taken lightly by the courts.
Section 151 gives power to the police officials to arrest a person, without a warrant, on the suspicion that he may commit a cognizable offence. However, this comes with certain conditions: the anticipated offence should be cognizable and the officer should feel that the offence would be prevented only by an arrest of the suspect. Section 107 gives similar powers to the magistrate. However, Numerous petitions have been filed questioning the constitutional validity of these sections as it gives plenty of room for the misuse of powers under these sections.
ARREST WITH WARRANT
- Form of warrant of arrest and duration.—
(1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court.
(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.
- Power to direct security to be taken.—
(1) Any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court, the officer to whom the warrant is directed shall take such security and shall release such person from custody.
(2) The endorsement shall state— (a) the number of sureties; (b) the amount in which they and the person for whose arrest the warrant is issued, are to be respectively bound; (c) the time at which he is to attend before the Court.
(3) Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the Court.
- Warrants to whom directed.—
(1) A warrant of arrest shall ordinarily be directed to one or more police officers; but the Court issuing such a warrant may, if its immediate execution is necessary and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same.
(2) When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more of them.
- Warrant may be directed to any person.—
(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest.
(2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge.
(3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71.
RIGHT TO LEGAL REPRESENTATION
The Supreme court upheld the right of consulting a legal practitioner by an accused as a Constitutional right under Articles 21 and 22(1) of the Constitution of India.
Article 22(1) of the Constitution of India states that a person who is arrested shall not be denied the right to consult, and to be defended by, a legal practitioner of his choice.
Therefore, this mandatory procedural requirement, reiterated by the Supreme Court in the 1997 case of DK Basu v. Union of India, entails that the person arrested has to not only be informed of the grounds of such arrest, but should also be asked by the Magistrate as to whether he/she requires to consult and be defended by his choice of lawyer.
In the 2018 case of Gautam Navlakha v. State (NCT of Delhi), it had been submitted by the State the “seriousness of the offence and the urgency of the situation” may lead to overlooking the requirements of law in letter and spirit. However, the Delhi High Court observed that in such cases, the concerned Magistrate would have to be satisfied with the explanation offered for non-compliance – “the departure from the mandatory requirement of the Constitution and the CrPC ought not to be lightly countenanced”.
Moreover, mere representation by a legal aid lawyer, without ensuring whether the accused had the opportunity to consult a lawyer of her own choice, will not satisfy the requirement of Art 22(1) of the Constitution, the High Court ruled. The Court also held that the mere fact that there was a legal aid lawyer representing the accused will not satisfy the requirement of Article 22(1), if it was not an effective representation. The Court noted that the legal aid lawyer in that case had not made any submissions before the Magistrate issued the transit remand order, and therefore the representation was merely “cosmetic”.
Two paragraphs from the judgment are worthy of being quoted here : “Turning to the order dated 28thAugust 2018 of the learned CMM in the present case, the Court finds that a duty lawyer empanelled pursuant to the Scheme of the National Legal Services Authority (“NALSA‟), the statutory body under the Legal Services Authorities Act, 1987(LSAA), was shown representing the person arrested, i.e., the present Petitioner. However, the Magistrate does not appear to have asked the arrested person, as mandated by Article 22 (1) of the Constitution, whether he was informed about the grounds of arrest and whether he wishes to consult and be defended by a legal practitioner of his choice. This requirement does not get diluted one bit only because the proceedings are for transit remand”. “There is no mention of the legal aid lawyer having made any submission whatsoever. The learned CMM did not even think it necessary to record any such submission. It thus appears to the Court that the appearance of the Duty lawyer for the Petitioner was cosmetic and not in the true spirit of Article 22(1) of the Constitution read with Section 12 (g) of the LSA which guarantees free legal aid to every person in custody.
GUIDELINES FOR INTER-STATE ARREST
In Sandeep Kumar v State, a division bench of Justices Dr S Muralidhar and Talwant Singh of the Delhi High Court had also directed for the implementation of guidelines that had been proposed by the Committee and pertained to protocol that must be followed by the police in the event of inter-state investigation or arrest. Relying on Sections 48, 77, 79 and 80 of the CrPC,
The guidelines stated the following guidelines for inter-state arrest:
- The Police Officer after assignment of the case to him, must seek prior permission/sanction of the higher/superior officers in writing or on phone (in case of urgency) to go out of State/UT to carry out investigation.
- In a case when the police officer decides to effect an arrest, he must set out the facts and record reasons in writing disclosing the satisfaction that arrest is necessary for the purpose of investigation. At first instance, he should move the Jurisdictional Magistrate to seek arrest/search warrants under Section 78 and 79 Cr PC except in emergent cases when the time taken is likely to result in escape of the accused or disappearance of incriminating evidence or the procurement of arrest/search warrant would defeat the purpose. The Police Officer must record reasons as to what were the compelling reasons to visit another State without getting arrest/search warrants.
- Before proceeding outside the State, the police officer must make a comprehensive departure entry in the Daily Diary of his Police Station. It should contain names of the police officials and private individuals accompanying him; vehicle number; purpose of visit; specific place(s) to be visited; time and date of departure.
- If the possible arrestee is a female, a lady police officer will be made part of the team. The Police Officers should take their identity cards with them. All police officers in the team should be in uniform; bear accurate, visible and clear identification and name tags with their designations.
- Before visiting the other State, the Police Officer must endeavour to establish contact with the local Police Station in whose jurisdiction he is to conduct the investigation. He must carry with him the translated copies of the Complaint/FIR and other documents in the language of the State which he intends to visit.
- After reaching the destination, first of all, he should inform the concerned police station of the purpose of his visit to seek assistance and cooperation. The concerned SHO should provide/render all legal assistance to him. Entry to this effect must be made at the said police station.
- After reaching the spot of investigation, search, if any should be strictly conducted in compliance of the procedure laid down, u/s 100 Cr PC. All endeavour should be made to join independent public witnesses from the neighbourhood. In case of arrest, the police officer must follow the procedure u/s 41A and 41B and Section 50 and 51 Cr PC. The process of arrest carried out by the police must be in compliance with the guidelines given in DK Basu case (Supra) and the provisions of CrPC.
- The arrested person must be given an opportunity to consult his lawyer before he is taken out of State.
- While returning, the police officer must visit the local police station and cause an entry made in the Daily Diary specifying the name and address of the person(s) being taken out of the State; articles if any, recovered. The victim’s name can also be indicated.
- Endeavor should be made to obtain transit remand after producing the arrestee before the nearest Magistrate unless exigencies of the situation warrant otherwise and the person can be produced before the Magistrate having jurisdiction of the case without infringing the mandate of S. 56 and 57 of Cr.P.C. within 24 hours.
- The magistrate before whom the arrestee is produced, must apply his mind to the facts of the case and should not grant transit remand mechanically. He must satisfy himself that there exists material in the form of entries in the case diary that justifies the prayer for transit remand. The act of directing remand of an accused is fundamentally a judicial decision. The magistrate does not act in executive capacity while ordering detention of the accused. He must ensure that requirements of S. 41 (l)(b) are satisfied. The police officer must send the case diary along with the remand report so that the magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. The magistrate should briefly set out reasons for his decision. (Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314).
- Another mandatory procedural requirement for the Magistrate considering a transit remand application is spelt out in Article 22 (1) of Constitution of India. This entitles the person arrested to be informed as soon as may be the grounds of such arrest. The Magistrate has to ensure that the arrested person is not denied the right to consult and to be defended by a legal practitioner of his choice. The Magistrate should ask the person arrested brought before him whether in fact he has been informed of the grounds of arrest and whether he requires to consult and be defended by any legal practitioner of his choice. (DK Basu, Supra) After the pronouncement of this judgment by the Hon’ble Supreme Court, new Sections 41A to 41D have been added to prevent unnecessary arrest and misuse of powers. Denying a person of his liberty is a serious matter.
- In terms of S. 41C, control rooms are established in every district. Names and addresses of the persons arrested and designation of the Police Officers who made the arrest be displayed. The Control Room at State level must collect details of the persons so arrested.
- The police officer must record all the proceedings conducted by him at the spot and prepare an ‘arrest memo’ indicating time, date of arrest and name of the relation/friend to whom intimation of arrest has been given. It must reveal the reasons for arrest.
- Since the arrestee is to be taken out of his State to a place away where he may not have any acquaintance, he may be permitted to take along with him (if possible), his family member/acquaintance to remain with him till he is produced before the jurisdictional Magistrate. Such family members would be able to arrange legal assistance for him.
- The arrested person must be produced before the jurisdictional Magistrate at the earliest, in any case, not beyond 24 hours from the date of arrest excluding the journey time so that arrest of such person and his detention, if necessary, may be justified by a judicial order. The 24 hours period prescribed u/s 57 Cr PC is the outermost limit beyond which a person cannot be detained in police custody. It does not empower a police officer to keep a person in a police station a minute longer than is necessary for the purpose of investigation and it does not give him an absolute right to keep a person till 24 hours.
- On arrival at the police station, the police officer must make an entry in the record and indicate the investigation carried out by him, the person arrested and the articles recovered. He should also inform his senior police officers/SHO concerned about it immediately. The superior Police Officer shall personally supervise such investigation.
- The police officer should effect arrest u/s 41(l)(b) Cr PC only when he has reasonable suspicion and credible information. He must satisfy himself about the existence of the material to effect arrest. There must be definite facts or averments as distinguished from vague surmises or personal feelings. The materials before him must be sufficient to cause a bona-de belief. He cannot take shelter under another person’s belief or judgment. He must affect arrest at his own risk and responsibility as the effect of illegal arrest could be commission of offence of wrongful confinement punishable u/s 342 IPC. Burden lies on the IO to satisfy the Court about his bona-de. No arrest can be made because it is lawful for the police officer to do so. Denying a person of his liberty is a serious matter.
- Medical examination soon after arrest to avoid possibility of physical torture during custody should be conducted.
- The IO must maintain a complete and comprehensive case diary indicating the investigation carried out by him.
- The log book of the vehicle used for transportation must be maintained and signed. The IO must indicate whether the vehicle was official or a private one; name of its driver and how and by whom it was arranged. Only official vehicles should be used for transportation to the extent possible.
- At the time of recovery of the prosecutrix, the police officer, if he is satisfied that she is an adult, should ascertain from her at the spot, whether she was present there with her free will. If the victim/prosecutrix is not willing to accompany the police officer or her relatives, the police officer must not exert force on the prosecutrix to take her away against her wishes. However, if the prosecutrix/victim of her own accord expresses willingness to accompany the police officer/relatives, her consent in writing should be obtained at the spot.
- In cases where the police officer finds the victim/prosecutrix to be a ‘minor’, soon after recovery, she should be produced before the local Child Welfare Committee for further decision regarding her custody. She must not be made to stay in the Police Station during night hours.
- Statement of the prosecutrix u/s 164 Cr.P.C. must be recorded at the earliest.
- MHA/Central Govt/Commissioner of Police must frame suitable guidelines for police officers to render all suitable assistance. The failure to adhere to the rules/guidelines should render the police officer liable for departmental action as well as contempt of the Court.
- The public prosecutor should provide required assistance to the police officer visiting his State at the time of seeking transit remand.
- The MHA/State Government should circulate the Rules/Guidelines/Notifications etc. from time to time to the Police officers in the State to create awareness. Periodically training should be provided to the Police Officers to sensitize them.
- Instructions/Guidelines of similar nature should exist in all the States/UTs for speedy, smooth and effective inter-State investigation.
- The delinquent Police Officer can be directed to pay compensation under the public law and by way of strict liability.
- If, in case of urgency or other considerations in the interest of investigation, it is not found feasible to inform the police station encompassing the jurisdiction of the search, seizure, arrest or investigation before the event, this should be done soon after the search, seizure, arrest etc. has been conducted.