THE ICFAI UNIVERSITY, DEHRADUN

ICFAI LAW SCHOOL

SUBMISSION OF ASSIGNMENT NO:- 2

SUBMITTED BY: SUBMITTED TO:

NAME: Nitesh Agnihotri Ms. Divyansha dwivedi

ENROLLMENT ID: 17FLICDDN02084. Assistant Professor

COURSE: BA-LLB(HONS.) ICFAI Law School

BATCH: 2017-22

SECTION: B

SUBJECT: Criminal Procedure Code

Question 1:- How an arrest is to be made by police?

Answer 1:- The circumstances in which police officers, magistrates and private citizens are authorised to
make arrest without warrant have been mentioned in section 41 to 44. the manner in which the earliest can be
affected by any such person is provided by section 46 which is as follows:-

Section 46:- Arrest how made:- (1) In making an arrest the police officer or other person making the
same shall actually touch or confine the body of the person to be arrested, unless there be it submission to the
custody by word or action.

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police
officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence
punishable with death or with imprisonment for life.

Arrest being a restraint of the Liberty of a person it can be affected by actually contacting or
touching the body of such person or by his submission to the custody of the person making the arrest. An oral
declaration of arrest without actual contact for submission to custody will not amount to an arrest.1

The submission to custody maybe by express words or made the indicated by conduct.2 If a
person makes a statement to a police officer , accusing himself of having committed an offence , he would be
considered to have submitted to the custody of the police officer.

On the other hand sub section 3 of section 46 enjoins in clear terms that persons making arrest can use all
necessary means for the purpose, they have not been given any right to cause the death of a person who is not
accused of an offence punishable with death or imprisonment for life.3

Question 2:- Is resistance to arrest or obstruction to lawful arrest punishable? What is the
extent of force permissible to make an arrest?
1 HarMohan Lal vs emperor (1929)
2 Paramhansa vs State AIR (1964)
3 Karam Singh vs hardayal Singh 1979
Answer 2:- Firstly we should that ,What is Resisting Arrest?

Resisting arrest occurs when a person interferes with a law enforcement officer’s attempt to
perform a lawful arrest. Some states call the crime “obstruction.” The crime can be a felony or a
misdemeanor, depending on the severity of the actions of the person being arrested.

Misdemeanor resisting arrest (or misdemeanor obstruction) can include actions such as running and hiding from
a law enforcement officer. Felony resisting arrest usually requires that a person either act violently toward the
arresting officer or threaten to act violently.

Felony Resisting Arrest: What Does the Prosecutor Have to Prove?

In order to secure a conviction for resisting arrest, the prosecutor must produce evidence on the following
issues, called the “elements” of the offense, and the judge or jury must decide that the prosecutor has proved
each one of them beyond a reasonable doubt. While the elements of the crime may vary from state to state,
usually all of the following must be true:

The defendant intentionally resisted or obstructed a law enforcement officer. This means the defendant
intentionally acted in a way to hinder the arrest. However, the person need not have intended the result or harm
that his actions caused.

The defendant acted violently toward the law enforcement officer or threatened to act violently. For example,
striking or pushing the officer would satisfy this requirement. Similarly, a defendant’s threat to strike an officer
with an object in the defendant’s hand would also satisfy this requirement.

The law enforcement officer was lawfully discharging his official duties. This means the law enforcement
officer was properly engaged in the performance of official duties, such as investigating a crime or making a
traffic stop. A law enforcement officer can be acting lawfully even when arresting the wrong person and even if
the charges are dropped or the defendant secures an acquittal at trial. (Read more on your rights if you're
arrested.)

Who Are “Law Enforcement Officers?”

State laws vary when it comes to defining “law enforcement officers.” In addition to police officers, sheriffs
and other commonly encountered peace officers, the term may include other law enforcement personnel such as
prison guards, probation supervisors, parole supervisors, park rangers, or correctional officers.

Because private security guards are not performing a public duty, they are usually treated as private citizens and
not as law enforcement officers. Therefore, resisting arrest laws often do not apply to attempted arrests by
security guards.
The result may be different when off-duty law enforcement officers work as private security guards. Some
courts have found that resisting arrest laws do apply to off-duty police officers working as private security
guards; but other courts have found that the resisting arrest laws do not apply to these off-duty officers.

How Much Resistance Must the Prosecutor Prove?

State laws also vary as to the kinds of acts and threats that will constitute felony resisting arrest. Physical
violence is enough, while a simple refusal to talk is not enough. Non-threatening statements of disagreement
with the officer’s actions usually are not enough. However, loud, threatening, and extended arguments may be
enough.

Defenses to a Charge of Resisting Arrest

Defendants charged with resisting arrest sometimes offer one or more of the following defenses. The
requirements to prove these defenses vary by state.

Self-defense

Police officers are entitled to use the amount of force necessary, in the circumstances, to accomplish the arrest.
But if the arresting officer acts violently and is not justified in doing so, the arrestee may protect himself and
resist the arrest. For example, if a law enforcement officer unjustifiably attempts to shoot the arrestee, the
arrestee may fight back. The person being arrested cannot act violently toward the arresting officer unless the
officer acted violently first.

Unlawful arrest

An unlawful arrest is an arrest that is not authorized by law, such as an arrest without a warrant or probable
cause. In some states, a person may resist an unlawful arrest, but only with reasonable force. Reasonable force
is generally considered to be only the amount of force necessary to resist the arrest.

Penalites

Someone convicted of felony resisting arrest can be subjected to any or all of the following penalties:

Incarceration. Sentences may involve time in the county jail, or one or more years in state prison, depending
on the state. The judge may require that the entire sentence be served in jail.

Fines. Courts impose fines to penalize defendants. These fines also help defray the cost of maintaining the
criminal justice system. Fines vary depending on the circumstances, but usually start at $1,000.

Probation. A person on probation regularly meets with a probation officer and fulfills other terms and
conditions, such as maintaining employment and attending counseling.

Community service. Courts often include as a part of probation the requirement that the defendant volunteer
for a specified number of hours with court-approved organizations, such as charities.
Question 3:- What are the additional powers available to the police for effecting an
arrest?

Answer 3:- There are some additional powers available to the police for effecting an arrest are as follows:-
● Search of place:- According to section 47 and occupier of a house is under a legal duty to afford to the
police all the facilities to search the house for the purpose of making arres. search facilities are denied or
obstruction are put in the way of the police officer, the section allows the officer to use force for getting
entry into the house for search and also for the purpose of liberating himself in case he is detained in the
house. Section 47 is as follows:-

Section No: 47 :- Search of place entered by person sought to be arrested. (The Code of Criminal
Procedure 1973 (crpc))

1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has
reason to believe that the person to be arrested has entered into, or is within, any place, any person
residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such
police officer, allow him such free ingress thereto, and afford all reasonable facilities for a search
therein.

(2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any case for a
person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained
without affording the person to be arrested an opportunity of escape, for a police officer to enter such
place and search therein, and in order to effect an entrance into such place, to break open any outer or
inner door or window of any house or place, whether that of the person to be arrested or of any other
person, if after notification of his authority and purposes, and demand of admittance duly made, he
cannot otherwise obtain admittance

Provided that, if any such place is an apartment in the actual occupancy of a female (not being the
person to be arrested) who, according to custom, does not appear in public, such person or police officer
shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and
shall afford her every reasonable facility for withdrawing, and may then break open the apartment and
enter it.

(3) Any police officer or other person authorised to make an arrest may break open any outer or inner
door or window of any house or place in order to liberate himself or any other person who, having
lawfully entered for the purpose of making an arrest, is detained therein.

● Pursuit of offenders:- Section 48 provides that ,"police officer may, for the purpose of arresting
without warrant any person whom he is authorised to arrest, pursue such person into any place in
India". Police officers power to arrest is ordinarily limited to the police district.4

In case the arrest is to be made under warrant, section 77 makes it clear that,"a warrant of arrest may
be executed at any place in India". However, when a warrant of arrest is to be executed outside of the
local jurisdiction of the court issuing it, special procedure, as prescribed by section 78 to 81, will have to
be followed.

4 Section 5 of Police Act 1861

 ● Deputing subordinate to arrest:- senior police officer in his presence requires a subordinate police
officer (aur even any other person) arrest of person who maybe lawfully arrested without a warrant,
such subordinate officer is under a duty to arrest. if however the senior police officer wants to send and
depute a subordinate for arresting a person without warrant, we can given order in writing to the
subordinate specifying the person to be arrested and the cause for which the arrests to be made for stop
this has been provided by section 55 which is as follows:-

Section No: 55 Procedure when police officer deputes subordinate to arrest without warrant. (The Code
of Criminal Procedure 1973 (crpc)):-

1) When any officer in charge of a police station or any police officer making an investigation under
Chapter XII requires any officer subordinate to him to arrest without a warrant (otherwise than in his
presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer
required to make the arrest an order in writing, specifying the person to be arrested and the offence or
other cause for which the arrest is to be made and the officer so required shall, before making the arrest,
notify to the person to be arrested the substance of the order and, if so required by such person, shall
show him the order.

(2) Nothing in sub-section (1) shall affect the power of a police officer to arrest a person under section
41.

● Power, on escape, to perceive and retake:- If a person in law full custody skates or is rescued, the
person from whose custody his kid aur was rescued may immediately pursue and arrest him in any place
in India . the person making search nearest has the same powers and duties as mentioned in section 46
and 49. Therefore, if a police officer is attempting to rearrest an escaped thief, he has no right to shoot
the thief.5

Question 4:- What are the rights of of arrested persons?

Answer 4:-

Rights of arrested person

In the preceding paragraphs it has been pointed out that the police have been given various powers for
facilitating the making of a arrests, the powers are subject to certain restraints. These trains are primarily
provided for the protection of the interest of the person to be arrested, and also of the society at large. The
imposition of the restraints can be considered, to an extent, as the recognition of the rights of the arrested
person.there are, however, some other provisions which have rather more expressly and directly created
important rights in favour of the arrested person. These would be discussed here:-

1) Right to know the grounds of arrest:- According to Section No: 50(1) Person arrested to be informed
of grounds of arrest and of right to bail. (The Code of Criminal Procedure 1973 (crpc)):-

1) 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.

5 Dakhi Singh vs State 1955

In case of arrest to be made under warrant coma section 75 provides that," the police officer or other person
executing a warrant of arrest shall notify the substance their of to the person to be arrested, and it's so required,
shall show hiim the warrant." if the substance of the warrant is not notified the arrest would be unlawful.6

2) Information regarding the right to be released on bail:- Section 50(2) provides:-

Where a police officer arrests without warrant any person other than a person accused of a non-bailable
offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for
sureties on his behalf.

This will certainly be of help to persons who may not know about they writes to be released on bail in case of
bailable offences. as a consequence this provision may in some small measures, improve the relations of the
people with the police and reduce discontent against them.

3) Right to be taken before a magistrate without delay:- Whether the arrest is made without warrant by
a police officer, or whether the address is made under warranty by any person, the person making a
arrest must bring the arrested person before a judicial officer without unnecessary delay. These matters
have been provided by section 56 and 76.

Section No: 56 Person arrested to be taken before Magistrate or officer in charge of police station. (The Code of
Criminal Procedure 1973 (crpc)):-

A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions
herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case,
or before the officer in charge of a police station.

Section No: 76 Person arrested to be brought before court without delay. (The Code of Criminal Procedure
1973 (crpc)):-

The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as
to security) without unnecessary delay bring the person arrested before the court before which he is required by
law to produce such person:

Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrate's court.

4) Right of not being detained for more than 24 hours without judicial scrutiny:- Here again, whether
the arrest without warrant or under warrant, arrested person must be brought before the magistrate or
court within 24 hours. Section 57 provides:-

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.

It may also be noted that the right has been further strengthened by its incorporation in the constitution
as a fundamental right. Article 22 clause ( 2 )of the constitution provides:- Protection against arrest and
detention in certain cases.

6 Satish Chandra Rai versus Nandan Singh 1899

 5) Right to consult a legal practitioner:- Article 22 (1) of the constitution provides that no person who is
arrested shall be denied the right to consult a legal practitioner of his choice. The right of an arrested
person to consult his lawyer being from the moment of his arrest . The consultation with the lawyer
maybe in the presence of police officer but not without his hearing.

6) Right to be examined by a medical practitioner:- Section 54 has been amended as already discussed.
the section empowers the court to get the arrested person medical examined. Supreme court in a leading
case aims to provide certain guidelines to prevent ' Costodial violence', in this case Supreme court aims
to provide certain rights of arrested person to be given as according to the constitutional remedies that
had been provided to that arrestee in the constitution.7

7 DK Basu versus State of West Bengal 1997