Arrest under CrPC A broad view

Meaning of Arrest & it’s Objectives

In criminal law, an arrest is the lawful restraint or detention of an individual by a law enforcement officer or authorized person. The primary objectives of an arrest are to ensure the accused’s presence in court, protect the public, prevent the accused from fleeing, and preserve evidence. Here are the key components of the meaning and objectives of an arrest under criminal law:

Meaning of Arrest

• An arrest is the physical restraint of an individual’s liberty. It involves taking a person into custody to answer for a crime they are suspected of committing.

Objectives of Arrest

• Ensure Presence in Court: One of the primary objectives of an arrest is to ensure that the accused person appears in court to face charges and undergo due legal process. By taking the person into custody, the authorities can compel them to attend court proceedings.
• Protect the Public: In cases where a person poses a threat to public safety, immediate arrest may be necessary to protect the community from potential harm. This is often the case with individuals who have committed violent crimes or who are considered dangerous.
• Prevent Flight: Arrests are made to prevent the accused from fleeing or evading justice. Once arrested, the individual’s movement is restricted, reducing the chances of them escaping the legal process.
• Preserve Evidence: When a person is arrested, law enforcement may have the opportunity to secure and preserve evidence related to the alleged crime. This is critical in the investigative process and ensuring a fair trial.
• Maintain Law and Order: Arrests can be made to restore or maintain law and order in certain situations, such as during civil unrest or when someone is actively engaged in criminal activity.
• Conduct Interrogation: After an arrest, law enforcement officers may question the suspect to gather information about the alleged crime. This is done in accordance with the suspect’s rights, often known as the Miranda rights.
• Initiate Legal Process: Arrest initiates the formal legal process, leading to the filing of charges, court proceedings, and a determination of guilt or innocence. It marks the beginning of the accused person’s interaction with the criminal justice system.

Arrest under CrPC

Sections 41 to 60A of the Code of Criminal Procedure (CrPC) in India pertain to various aspects of the arrest of individuals, their rights, and the powers and procedures that law enforcement authorities must follow during and after the arrest. These sections are significant for ensuring the fair and just treatment of individuals within the criminal justice system. Here’s an overview of these sections:

Section 41 – When police may arrest without a warrant:
This section grants the police the authority to arrest individuals without a warrant under certain circumstances. The key point to note is that there must be reasonable grounds to believe that the person has committed a cognizable offense (an offense for which police can arrest without a warrant) or is about to commit one. The police officer must also record the reasons for such an arrest.

When Police may arrest without a warrant

1. Reasonable Grounds for Arrest: This section empowers a police officer to arrest a person without a warrant if the officer has reasonable grounds to believe that the individual has committed a cognizable offense. A cognizable offense is one for which the police can arrest without a warrant. Cognizable offenses are typically more serious crimes.
2. Need for Belief: The police officer must genuinely believe that the person has committed the offense. This belief should be based on objective facts and reasonable information, rather than being arbitrary or speculative.
3. Recording of Reasons: The police officer is required to record in writing the reasons for making the arrest. These reasons should be documented in the police records, and they serve as a record of the grounds for the arrest.
4. Procedure for Arrest: When making an arrest under this section, the police officer should follow proper arrest procedures. This includes identifying themselves as police officers, informing the person being arrested of the grounds for their arrest, and, if necessary, using reasonable force to effect the arrest. The use of excessive or unnecessary force is prohibited.
5. Right to Know the Offense: The person being arrested has the right to be informed about the grounds for their arrest. They should be told what offense they are being arrested for.
6. Custody of Arrested Person: Once arrested, the person should be taken into custody and brought before a magistrate without unnecessary delay. The arrested person should not be detained for an extended period without being presented before a magistrate.
7. Preventing Arbitrary Arrests: Section 41 is designed to prevent arbitrary or baseless arrests by requiring that there be reasonable grounds for believing that the accused has committed a cognizable offense. It emphasizes that arrests should be based on credible information and evidence.

Mode of Arrest under CrPC

1. Arrest with a Warrant (Section 70 CrPC): When a court issues an arrest warrant, law enforcement officers can arrest the person named in the warrant. The warrant specifies the grounds for arrest, and the person is taken into custody as per the court’s order.
2. Arrest Without a Warrant (Section 41 CrPC): In cases where a police officer has “reasonable grounds” to believe that a person has committed a cognizable offense (an offense for which the police can arrest without a warrant), they can arrest the person without a warrant. The officer must record the grounds for arrest.
3. Arrest by Private Persons (Section 43 CrPC): Private individuals have the authority to arrest someone without a warrant if they witness that person committing an offense. However, such individuals must immediately hand over the arrested person to a police officer.
4. Arrest by a Magistrate: A magistrate can arrest a person to prevent a breach of peace or maintain public order. This is a relatively rare mode of arrest and is typically used in exceptional circumstances.
5. Arrest in Pursuit (Section 47 CrPC): Law enforcement officers can arrest a person who is trying to escape from legal custody or avoid arrest. This is often referred to as an arrest in “hot pursuit.”
6. Arrest for Contempt of Court (Section 70A CrPC): A person can be arrested by order of a court if they are found guilty of contempt of court.
7. Arrest for Non-Appearance (Section 174 CrPC): If a person who is bound by a lawful obligation to appear before a court fails to do so, the court may issue a warrant for their arrest.
8. Arrest for Breach of Peace (Section 145 CrPC): The police can arrest individuals when there is a likelihood of a breach of the peace, and the arrest is necessary to prevent it.
9. Arrest under Preventive Detention Laws: In cases of preventive detention under special laws, such as the National Security Act (NSA) or the Maintenance of Internal Security Act (MISA), a person can be arrested for reasons of national security or public order, even without a specific criminal offense.

Arrest of Woman under CrPC

Under the Code of Criminal Procedure (CrPC) in India, there are certain safeguards and rules in place regarding the arrest of women, particularly to protect their dignity and privacy. Here are some key provisions and case laws related to the arrest of women under the CrPC:

Provisions related to the arrest of women:

1. Section 46(4): This section of the CrPC states that no woman can be arrested after sunset and before sunrise, except in exceptional circumstances and with the specific permission of a Judicial Magistrate.
2. Section 51A: This section deals with the medical examination of arrested persons. When a woman is arrested, only a female medical practitioner should carry out the medical examination, if required. It’s aimed at preserving the dignity and privacy of female arrestees.

Case laws related to the arrest of women:

Smt. R. Varalakshmi v. State of Mysore (AIR 1965 SC 743)

In this case, the Supreme Court of India held that if a woman accused is required to be searched, the search should be conducted by another woman, and it should be done with the utmost decency.

D.K. Basu v. State of West Bengal (AIR 1997 SC 610)

While this case primarily deals with the procedure for arrests and detentions, it emphasizes the need to safeguard the rights and dignity of arrested persons, including women. The Supreme Court laid down guidelines to prevent custodial violence and ensure that arrestees, especially women, are treated with respect and dignity.

Aruna Ramachandra Shanbaug v. Union of India (2011) 4 SCC 454

This case is notable as it addresses the issue of euthanasia, but it also highlights the importance of upholding the dignity and human rights of women in vulnerable situations. It emphasizes the need for gender-sensitive treatment when it comes to healthcare, which can be relevant in cases of arrest as well.

Sheela Barse v. Union of India (1986) 2 SCC 194

While this case primarily deals with the rights of female prisoners, it underscores the importance of ensuring the rights and dignity of women who come into contact with the criminal justice system.

These case laws and provisions are part of the legal framework designed to protect the rights and dignity of women in the context of arrests and detentions in India. They highlight the need for sensitive and respectful treatment of women who come into contact with the criminal justice system and serve as a reminder of the importance of upholding human rights and gender sensitivity in legal procedures.

Forcible Arrest

A forcible arrest typically involves the use of physical force or coercion by law enforcement authorities to take an individual into custody. Such arrests can be considered illegal if they violate the person’s rights. The law in many jurisdictions, including India, prohibits the use of excessive force during an arrest. Below are some case laws that illustrate the consequences of illegal or forcible arrests:

Joginder Kumar v. State of U.P. (1994) 4 SCC 260

In this case, the Supreme Court of India emphasized the importance of safeguarding personal liberty and held that police officers should not arrest an individual without a reasonable basis. The court laid down guidelines to prevent illegal or arbitrary arrests and recommended the issuance of a notice prior to arrest.

D.K. Basu v. State of West Bengal (AIR 1997 SC 610)

This landmark case is significant in the context of arrests in India. The Supreme Court issued guidelines to prevent custodial violence and illegal arrests, emphasizing the need to protect the rights and dignity of arrested persons. The case laid down procedures that must be followed by law enforcement officers, including the need to prepare a memo of arrest at the time of arrest, inform a friend or family member, and conduct a medical examination.

Sheela Barse v. Union of India (1986) 2 SCC 194

This case highlights the need to protect the rights of female prisoners and detainees in India. It emphasizes the importance of upholding human rights and treating arrested persons, particularly women, with sensitivity and dignity. It also highlights the need to prevent and address custodial violence and illegal arrests.

Nilabati Behera v. State of Orissa (1993) 2 SCC 746:

In this case, the Supreme Court ruled that if a person dies in police custody, the state is liable for compensation to the victim’s family. The case reinforces the responsibility of law enforcement authorities to ensure the safety and well-being of individuals in their custody and the consequences of illegal or excessive use of force.

Rudul Sah v. State of Bihar (1983) 4 SCC 141:

This case underscores the importance of fair treatment during arrests and the inadmissibility of evidence obtained through torture or ill-treatment. It establishes that confessions obtained through physical or mental torture are not admissible in court.

Arrest in Non-Cognizable Offence

Arrest in non-cognizable offenses is subject to specific legal procedures and restrictions in many jurisdictions, including India. Non-cognizable offenses are generally less serious offenses, and the police cannot make an arrest without a warrant issued by a magistrate. Here’s how the arrest process for non-cognizable offenses typically works:

1. FIR and Complaint: In cases of non-cognizable offenses, the process often starts with the filing of a First Information Report (FIR) or a formal complaint by the victim or a witness. Unlike cognizable offenses, where the police can register an FIR based on their own knowledge or information, for non-cognizable offenses, they rely on the complaint of the affected party.
2. Investigation: After receiving the complaint, the police may initiate an investigation into the matter. This could involve collecting evidence, interviewing witnesses, and conducting other necessary inquiries to build a case.
3. Police Report to the Magistrate: In the case of non-cognizable offenses, the police do not have the authority to make arrests without a warrant. Instead, they prepare a report on the matter and submit it to the magistrate for further action. This report is commonly referred to as a “non-cognizable report.”
4. Magistrate’s Decision: The magistrate reviews the report and decides whether to issue an arrest warrant. If the magistrate believes that there is sufficient evidence to warrant an arrest, they will issue a warrant for the arrest of the accused person.
5. Arrest with Warrant: Once the magistrate issues an arrest warrant, the police can take the accused person into custody. The arrest is made in accordance with the warrant, which specifies the grounds for arrest.
6. Arrest Without Warrant: In some situations, when immediate action is required to prevent the accused from fleeing or causing harm, and there is reasonable cause to believe that the person has committed a non-cognizable offense, the police may arrest the individual without a warrant. However, this should be an exception and not the norm.

Rights of Arrested-Person

Rights of Arrested Person	Explanation	Section of CrPC
Right to be Informed of the Grounds	The arrested person must be informed of the grounds for their arrest at the time of arrest.	Section 50 CrPC
Right to Remain Silent	The right to remain silent and not be compelled to be a witness against oneself.	Section 161(2) CrPC
Right to Legal Counsel	The arrested person has the right to consult and be defended by a legal practitioner.	Section 303 and Section 304 CrPC
Right to Know About Charges	The arrested person has the right to be informed of the specific charges against them.	Section 50(2) CrPC
Right to a Fair and Speedy Trial	The right to be tried fairly and without undue delay.	Section 167 CrPC
Right to Medical Examination	The arrested person has the right to a medical examination if they request one.	Section 54 CrPC
Right to Be Presented Before a Magistrate	The arrested person must be brought before a magistrate within 24 hours.	Section 57 CrPC
Right to Bail	The person may have the right to be released on bail under certain circumstances.	Section 50A CrPC
Right to a Phone Call	The arrested person may request to inform a friend, relative, or well-wisher about their arrest.	Section 41D CrPC
Right to Dignity and Respect	The arrested person must be treated with dignity and respect, and torture or cruel, inhuman, or degrading treatment is prohibited.	Various sections, including Section 49, 55A, and others

Guidelines for Arrest

D.K. Basu v. State of West Bengal (AIR 1997 SC 610)

This landmark case laid down comprehensive guidelines to prevent custodial violence and illegal arrests. Some of the key guidelines include:

• The police must prepare a memo of arrest at the time of arrest, which should include the time and place of arrest, the name of the arresting officer, and the reasons for arrest.
• The arrested person has the right to inform a friend, relative, or well-wisher about their arrest and their location.
• The arrested person has the right to be examined by a medical practitioner, and a copy of the medical examination report should be given to the arrested person.
• The person should be brought before the nearest magistrate within 24 hours of arrest.
• No person should be subjected to physical or mental torture during interrogation.

Arnesh Kumar v. State of Bihar

Arnesh Kumar v. State of Bihar is a landmark case decided by the Supreme Court of India in 2014. This case is significant as it addresses the issue of misuse of Section 498A of the Indian Penal Code (IPC), which deals with cruelty to married women, and lays down important guidelines to prevent arbitrary arrests and detentions, particularly in cases related to dowry harassment.

Case Background

In this case, the Supreme Court expressed concern about the rampant misuse of Section 498A and the Dowry Prohibition Act, which led to the arrest of many individuals, including elderly family members and relatives, based on mere allegations, often without sufficient evidence. The court observed that these provisions were being misused as “weapons for harassment,” and the arrest of family members without proper scrutiny and investigation was causing undue hardship.

Key Guidelines and Observations:
The Supreme Court, in its judgment, issued several important guidelines and observations:

1. Arrest in Dowry Harassment Cases: The court emphasized that the arrest of an accused in a dowry harassment case should not be made in a routine manner. Instead, the police must satisfy themselves that there is a genuine case requiring arrest, based on the specific facts and circumstances of the case.
2. No Automatic Arrest: The court ruled that there should be no automatic arrest of the accused upon the mere filing of an FIR under Section 498A. The police should conduct a thorough investigation to establish the veracity of the allegations before making an arrest.
3. Family Welfare Committees: The court recommended the establishment of Family Welfare Committees at the district and sub-district levels, comprising independent members who can examine the allegations and attempt at reconciliation before any arrest is made.
4. Anticipatory Bail: The court highlighted the importance of anticipatory bail as a safeguard for accused persons. It encouraged accused individuals to apply for anticipatory bail when they have a reasonable belief that they may be arrested in a dowry harassment case.
5. Criminalization of False Complaints: The court expressed concern about the filing of false complaints, leading to arrests without merit, and recommended that states consider criminalizing false complaints.

This judgment in the Arnesh Kumar case aimed to strike a balance between the protection of women’s rights and preventing the misuse of the legal provisions to harass innocent individuals. It emphasized the need for a thorough investigation before making arrests in such cases and introduced several safeguards to prevent arbitrary arrests.

The case is considered a landmark in the context of gender-based crimes and the rights of the accused, especially in cases related to dowry harassment and cruelty to married women. It underscores the importance of upholding the principles of justice and fairness in the criminal justice system.

Guideliness for Police-Officers while arresting Judicial-Officers

Introduction 

Judiciary is one of the pillars of a democratic society and is a prestigious part. It is the platform where a common man hopes for justice against all odds, even if the case is against the government. The basic principle of justice has always been that ‘No one is above law’. And it is on the basis of this principle that even Judges or Judicial Officers are bound by law and liable for any offence. However, Judicial Officers are reputed and because they are in the window of the judiciary itself it is important that a case against such judicial officers is handled with utmost care. The same power to make a judicial officer liable can be misused as well. The facts of the landmark case of Delhi Judicial services Association v. The State of Gujarat had shocked the country and there was a need for certain guidelines in case a Judicial Officer is being arrested for an offence. It is also crucial to understand in which circumstances the judicial officers can be arrested and can be made liable in their judicial capacity.      

Delhi Judicial Services Association v. State of Gujarat  

Facts of the case

In this case, the Chief Judicial Magistrate at Nadiad found no cooperation with the police in delivering the summons or producing offenders and thus delaying the trials. The Chief Judicial Magistrate wrote a letter to the DSP (District Superintendent of Police) and DGP (Director General of Police) stating the same, however, no action was taken. The Police Inspector of Nadiad had withdrawn the constables from the C.J.M Court after this incident and the C.J.M. directed the police to file a criminal case against persons who were delaying the investigation, however, again no action was taken. The Police Inspector complained about the C.J.M. to the Registrar of the High Court through DSP (District Superintendent of Police). The C.J.M. was further called to the Police Station to check documents, however, the C.J.M. was forced to drink liquor and pictures were clicked in that state. Further, the Police arrested, assaulted and handcuffed the judicial officer. The case went to the Supreme Court and the issues were raised regarding the arrest made by the Police Inspector.  

Judgment       

The Supreme Court held that the arrest made by the Police Officer, in this case, was violative of Article 136 of the Indian Constitution. This judgment is a landmark judgment and in this case, the court provided with guidelines to arrest a judicial officer- 

1. In case a judicial officer is to be arrested for any offence, an intimation to the District Judge or the High Court has to be done. 
2. In case there is an immediate arrest of a judicial officer of subordinate judiciary due to certain facts and circumstances, a technical or formal arrest can be made.
3. The facts of any such arrest should be immediately communicated to the District and Session Judge of the concerned District and the Chief Justice of India.
4. The arrested judicial officer is not to be taken to a police station without the prior orders of the District & Sessions Judge of the concerned district.
5. Facilities of communication with family, legal advisors and Judicial Officers (District and Session Judge) have to be provided to the arrested judicial officer immediately.   
6. No statement should be recorded nor any ‘panchnama’ should be drawn and no medical test should be conducted of the arrested judicial officer unless in the presence of the legal advisor or any other judicial officer of equal or higher rank.
7. The Judicial Officer should not be handcuffed. However, in a case where there is an imminent need to effect the physical arrest to avert danger to life and limb, such a person can be overpowered and handcuffed. An immediate report has to be made to the District & Sessions Judge and to the Chief Justice of the High Court in such a case. Such a burden falls on the Police to establish the necessity for handcuffing. If found that such handcuffing was unjustified, such Police Officers responsible for it would be guilty of misconduct and would be personally liable for the compensation or damages as determined by the High Court.  

The Court held that such guidelines provided are not exhaustive but a minimum safeguard which has to be followed while arresting a judicial officer.