​ARREST AND RIGHTS OF ARRESTED PERSON

  • December 7, 2016
  • 11:20 am
  • Rakesh Singh Bhadoriya

“The power to arrest to deprive a citizen of liberty must be used fairly, responsibly, and without bias” – Loretta Lynch. 
                                                                              One of the most dangerous cocktails in a democracy is when those who are meant to enforce the law take the law into their own hands. Every week in India, several citizens – usually the poor and those from weaker section of the society are victims of illegal arrest and other forms of custodial torture. The Term Arrest is something, we hear a lot in your day to day life. Generally, a person who does some wrong against law gets arrested. Here, we need to understand the term “Arrest” and Rights of arrested Person, so that we don’t become a victim of it. In Indian Criminal law, Crpc 1973, chapter V (Section 41 to 60) talks about Arrest of a person but ironically has not defined arrest anywhere.                                                                                                                               Then what is “Arrest”? Arrest means the apprehension of a person by legal authority resulting in deprivation of his liberty. An arrest includes of taking into custody of another person’s authority empowered by law for the purpose of holding or detaining him to answer a criminal charge and preventing the commission of the criminal offence.                                                                          

The second question comes in mind, who can arrest you?                                        An arrest can be made by (I) A Police officer, (II) A Magistrate (Sec. 44) or (III) A Private Person. Yes U/Sec. 43 of crpc, a private person including me and you can also arrest a person in case the person committed a non-bailable and cognizable offence or if that person is Proclaimed Offender (sec.82) .The most form of an arrest is arrest made by police, under sec. 41 police officer can make an arrest without a warrant in any cognizable offences and with a warrant in non-cognizable offences. Cognizable offences are more of serious nature as compared to non-cognizable offences i.e. Murder, Kidnapping, etc.                                                                                                

The third question that how arrests are made?                                                                                                             

Sec. 46 describes the mode in which arrests are to be made (whether with or without the warrant). In making an arrest the police officer /other person making the same actually touches or confines the body of the person to be arrested unless there be a submission to custody by words or action.                                                                                                                          

RIGHTS OF ARRESTED PERSON: –                 

In Criminal Law, there is a principle that “Presumption of innocence unless proven guilty” though this principle varies with facts and circumstances of each case. So, an arrest of a person doesn’t make him guilty. He has a right to be treated with ‘humanity, dignity and respect’. Here the following rights:-     

Right to be informed of the grounds of arrest under sec. 50 of crpc and article 22 of Indian Constitution, it’s a fundamental right to be informed. It is the duty of the police officer to inform you and also tell whether the offence is bailable or non-bailable. Normally, Bailable offences are those where bailable can be granted and it is right of the person to be granted bail and Non- bailable offences are where bailable can’t be granted generally and it’s the discretion of the court.

In non- cognizable cases, arrests are made with warrant and the person going to be arrested has a right to see the warrant under Sec. 75 of crpc. Warrant of arrest should fulfill certain requirements such as it should be in writing such as signed by the presiding officer , should have seal of court , Name and address of the accuse and offence under which arrest is made. If any of these is missing, warrant is illegal.

U/ sec. 41 , police have a power to arrest a person without a warrant as a prompt and immediate arrest is needed , no time to approach magistrate and obtain a warrant for example in a case where serious crime is has been perpetrated by a dangerous person or where chances of that person absconding unless immediately arrested.                       .                                                 Not in all cases arrest in necessary, Notice of appearance before police officer can be made if reasonable complaint has been made ,credible information has been received and suspicion exits of cognizable offence and if concern person continues to comply with such notice and appears then arrest is not necessary but he don’t, arrest can be made.( sec 41A)

The police officer must be wearing a clear, visible and clear identification of his name which facilitates easy identification. A memo of arrest must be prepared at the time of arrest – (i) attested by least one witness, it can be a family member or member of the locality where arrest is made (ii)countersigned by arrested person.

Right of arrested person to meet an advocate of his choice during interrogation U/sec. 41D and sec. 303 crpc.

An arrested person has a right to inform a family member, relative or friend about his arrest U/ sec 50 of crpc.

An arrested person have right not to be detained for more than 24hrs, without being presented before a magistrate, it is to prevent unlawful and illegal arrests. This right is fundamental right under article 22 of Indian constitution and U/sec. 57 and 76 of crpc.

An arrested person has the right to be medically examined (Sec 54,55A).

An arrested person has a right to remain silent U/Sec. 20(3) of Indian constitution so that police can’t extract self – incriminating statement from a person without a will or without his consent.

PROTECTION TO FEMALES -:

The General rule is that Females are not be arrested without the presence of a lady constable and no female be arrested after sun-set but there are exception in some cases, where crime is very serious and arrest is important then arrest can be made with special orders and it depends on facts and circumstances of each case. Separate lock ups to be provided for them. [State of Maharashtra Vs Christian Community Welfare Council of India [(2003) 8 SCC 546]
REFERENCE:-

D.K  Basu v State of West Bengal [AIR,1997,SC 610]
JOGINDER KUMAR VS STATE OF UP [1994 AIR 1349]
ARNESH KUMAR VS STATE OF BIHAR

BY:- Krishna Sharma