Q2 What is Arrest?

Discuss provisions relating to arrest

of person under the Criminal Procedure Code 1973?

Synopsis :
Introduction & Meaning
Provisions Related to Arrest under CRPC
Who has the Power to arrest?
Provision for Members of Central Armed Forces
Special Provision Regarding Arrest of Females
D.K. Basu's Case - Rights & Guidelines for an Arrest
Conclusion

Introduction & Meaning:

The word arrest is derived from the French word 'arret' meaning 'to stop or
stay'. The term 'arrest' means the apprehension of a person by the legal authority so as
to cause deprivation of liberty.

An arrest is an act of apprehending and bringing a person into custody (legal

protection or control), typically because the individual is suspected of or has been
observed committing a crime.

Various provisions regarding the arrest of an individual by various individuals

have been provided under the Code of Criminal Procedures by the Law, these
provisions are discussed in the following sections.

Provisions Related to Arrest under CRPC

Chapter V of the Code of Criminal Procedure, 1973 deals with the arrest of persons
under Sections 41 to Section 60. The essential object of criminal law is to protect
society from criminals and from law-breakers.

The basic procedure to make an arrest has been mentioned under section 46 of the
Code of Criminal Procedure, 1973. Sub-section 1 of this section provides that the
arresting authority has to actually touch or confine the body of the person to be
arrested, and also there can be submitted to custody by words or actions.

Not only policemen but various other authorities have the powers to arrest an
individual according to various provisions of CrPC, including:

Who has the Power to arrest?

A Police Officer A Private Person A Magistrate

With or Without a
Warrant

Arrest by a Police officer

The police officers have been authorized to arrest any person without the warrant
ordered by the court under Sections 41, 42, 151 of CrPC.
Section 41 of CrPC provides for those instances where a police officer has been
authorized to arrest an individual without a warrant from the magistrate. This happens.

When the individual is:

1. Involved in any cognizable offense such as murder, rape, kidnapping, theft, etc.
or
2. In possession, without, lawful excuse, of any housebreaking weapon or
3. Proclaimed as an offender either under CrPC or by order of the State Govt. or
4. In possession of any stolen property or
5. Obstructing a police officer while in the execution of his duty or who has
escaped, or attempts to escape, from lawful custody
6. Reasonably suspected of being a deserter from any of the Armed forces of the
Union
7. Concerned with any law relating to extradition
8. Involved in breach of any rule made under sub-section (5) of Section 356 CrPC
9. The one whose arrest's requisition has been received from another police officer
specifying the person to be arrested and the offense and other cause for which
the arrest is to be made.[4]

Section 42 - If a person commits an offense in the presence of a police officer or where

he has been accused of committing a non-cognizable offense and refuses, on demand
being made by a police officer to give his name and residence or gives false name or
residence, such person may be arrested but such arrest shall be only for the limited
purpose of ascertaining his name and residence.

Section 151 - Provides for the arrest of a person who is suspected to commit any
cognizable offense by the police officer without a warrant from the magistrate, if the
police officer finds no other way of preventing the execution of such offense. A person
arrested under this section can be detained for more than 24 hours from the time of
arrest unless such extended detention is required under provisions of CrPC.

Arrest Made by Magistrate :

Section 44 of CrPC provides for the provision of an arrest made by a magistrate. The
sub-section 1 of this section provides that when an offense is committed in the
presence of the magistrate within his jurisdiction, he may himself arrest or order
someone to arrest the offender and may commit the offender to custody. Under sub-
section 2 the magistrate can arrest or order for the arrest of a person for whose arrest
he is competent to issue a warrant.
Under sub-section (1) of Code of Criminal Procedure, 1973 the Magistrate has been
given the power to arrest a person who has committed an offense in his presence and
also to commit him to custody, while under sub-section (2) of Section 44 Cr. P. C the
Magistrate has full power to arrest a person suspected of having committed an offense
but has not been given any power to commit him to custody.

Further, Section 107 of CrPC provides the power to the Executive Magistrate who has
received information for arresting a person who is likely to commit a breach of the
peace or disturb public tranquility in any way, to show cause why he should not be
ordered to execute a bond with or without sureties for keeping the peace for such
period, not exceeding one year, as the Magistrate thinks fit.

Arrest by Private Persons :

Section 43 of CrPC - An individual, who in his/her presence, commits a cognizable or a

non-bailable offense or who is a 'proclaimed offender' The private person can arrest
such an offender to hand over his custody to the nearest police station and if the police
officer finds such person coming under the provisions of section 41, the police officer
has to re-arrest the offender.

Provision for Members of Central Armed Forces

Section 45 of CrPC exempts the members of the Armed forces from being
arrested for anything done by them in the discharge of their official duties except after
obtaining the consent of the government.

Special Provision Regarding Arrest of Females

The general rule is that Females are not be arrested without the presence of a
lady constable and further no female is arrested after sun-set. But there is an exception
in those cases where crime is very heinous and arrest is important .

D.K. Basu's Case and Rights of Arrested Person:

A landmark judgment provided for certain guidelines which were to be necessarily

followed in all cases of arrest and detention.

Some of the important points which were held by the court while deciding upon this
case have been listed as below :
1) Right to be informed grounds for arrest is a basic right.
2) Essentials of a warrant: writing, signed by the presiding officer, and bearing the seal
of the court, as well as the accused's name and address and the offense
3) Memo of Arrest: a memo of arrest must be written, which must be certified by at
least one witness, who might be a family member or a member of the local area where
the arrest is made and countersigned by the detained individual.
4) Right to choose an advocate: The arrested person has been given a right to meet an
advocate of his choice during the course of interrogation.
5) Right to Inform Relative: An arrested person has a right to inform a family member,
relative, or friend about his/her arrest.
6) Right to be not Detained more than 24 Hours: Arrested persons have the right not to
be kept for more than 24 hours without being produced before a magistrate.
7) Right to be Medically Examined: An Arrested person has been given the right to be
medically examined by a medical officer
8) Right to Remain Silent: An arrested individual has the right to remain silent, so that
the arresting authority cannot elicit self-incriminating statements from him against his
will or without his agreement.

Conclusion :

Various provisions have been laid down under CrPC and Indian Constitution in order to
ensure smooth functioning and to prevent any sort of bewilderment while carrying out
the arrest of any individual. Responsively, various rights have been granted to the
arrested persons so as to ensure that they are not subjected to any sort of exploitation
by the arresting authority. Thus, the law has emphasized both the arrested and the
arrestee.

#Legal Griffins
“Together we can make the difference”
Team 5G, Team Octopus