Arrest And Rights Of An Arrested Person

    What is an arrest?

    The expression “arrest” means the detainment of any person by lawful authorities. After the arrest, the liberty of the accused is in the dominance of the arrester. Under the law of crimes, an arrest is an essential tool to present the accused to be taken before the court and to prevent absconding. Arrest And Rights Of An Arrested Person.

    According to the Farlex Legal Dictionary, “arrest” is defined as “a seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge.” 

    To bring the arrestee to the court or to secure the administration of law is the main purpose of arrest. An arrest serves as the function of notifying the community that an individual has been accused of a crime and may admonish and deter the arrested individual from committing other crimes. Arrests can be made in criminal and civil cases, although an arrest is not looked at by the courts in civil matters.

    In Indian law, the Criminal Procedure Code 1973 (CrPC), under Chapter V (Sections 41 to 60) provides for the provisions for the arrest of a person, but the expression is not defined anywhere.

    Who can arrest?

    An arrest can be made by a  magistrate, police officer, or by any private person. Armed members are exempted in CrPC from arrest and may only be arrested under CrPC with the central Government’s consent as stated under Section 45 of CrPC. 

    Arrest by a Private Person 

    As per Section 43 of CrPC, any person can arrest an individual who has committed a cognizable offence or is a proclaimed offender and made over him to the police officer or takes him to the nearest police station custody. 

    Arrest by Magistrate

    As per Section 44 of CrPC, any Magistrate, whether Executive or Judicial, may arrest any person when any offence is committed in his presence within his local jurisdiction. He has the power to arrest or request any individual to arrest an accused, subject to the provisions of rape. A military official may get arrested under Sections 130 and 131 of CrPC. 

    Arrest by a Police Officer 

    A police officer has the power to arrest, with or without a warrant, in accordance with the provisions of CrPC:-

    • Arrest with a warrant: Section 72 of CrPC grants power to police officers to arrest any person with a warrant issued by the magistrate or court. It provides for directing an arrest warrant to one or more police officers that can be executed by any one or more of them.
    • Arrest without warrant: Sections 41, 42 and 151 of CrPC provide for police officer’s power to arrest without a warrant. Following are the conditions, as mentioned u/s 41, under which a person may be arrested without a warrant by the police:-
    • If the accused is charged with a cognizable offence or where any offence or information is received by the authorities regarding the act of cognizable offence; or
    • Who is in possession, without lawful excuse, of any housebreaking weapon; or
    • Who is a proclaimed offender either under CrPC or by order of the State Government; or
    • Who owns any stolen property; or
    • Who obstructs any police officer in executing his duty or attempts to escape from the legal custody; or
    • Anyone who is eyed to be suspected of being a fugitive from any Central Armed forces; or
    • Person concerning an act punishable under any law relating to the extradition; or
    • Any released convict who commits a breach of any rule made under sub-section (5) of Section 356 CrPC; or
    • Where any written or oral requisition has been received from another police officer specifying the person to be arrested with information of the offence and other cause for which the arrest is to be made, provided it appears to the police officer receiving it that such arrest can be made lawfully without an arrest warrant.

    Further, Section 42 provides that if a person accused of a non-cognizable offence refuses to give his name and address to the police officer on his demand or gives false information or the officer has reasons to believe that false information has been given, then he may be arrested by that officer.

    Section 55 provides that a police officer investigating under Chapter 9 may depute his subordinate through writing to arrest a person who can be lawfully arrested without a warrant.

    Also, as per Section 151, if a police officer believes that a cognizable offence, of which the police officer has the information, cannot be prevented except on performing arrest, then he can arrest such a concerned person.

    Procedure of arrest

    Section 46 of CrPC describes how an arrest is to be made. Under Section 46(1), unless the person being arrested consents to submit to the custody, either by words or actions, the one arresting shall touch or confine the person’s body to be arrested.  Since an arrest is a restraint on the person’s liberty, the person must be detained in custody, or the one arresting must touch and confine his body. Mere oral statement of arrest by the one arresting without getting submission to the possession or coming in contact to confine the body will not result in arrest. The custodial submission may be expressed in words or by action. 

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    Section 46(2) of the Code provides that if any person exercises coercion and resists the endeavour to arrest him, or attempts to run away from the arrest, such police officer or any other person can use all means necessary to arrest the outcome. Even then, if the person attempts to run away, the police officer can take action; physical force can immobilize the accused and prevent his escape. However, Section 46(3) gives no option to cause the death of an individual, who isn’t accused of an offence punishable with life imprisonment or death. Furthermore, Section 49 states that a captured individual ought not to be exposed to more limitations than the necessary time. 

    Rights of an arrested person

    The Code gives wide powers to the police for capturing an individual. Such powers without prevention for the accused will be unsafe for society. To guarantee that this force isn’t utilized arbitrarily, a few limitations have been put on it, which can be viewed as the privileges granted to an arrested person. Further, once captured, the person has limitations regarding the freedom of liberty, and thus he can’t find a way to protect himself. Subsequently, to address the issues of “free trial,” certain provisions under CrPC give an individual explicit rights. These rights are as under – 

    • Freedom to choose a Lawyer

    Section 41D states that the person arrested has a right to be protected by the accused’s lawyer. The rights can be accessed as soon as the person gets arrested.

    • No unnecessary restraint

    Section 49 of the Code provides that an arrested person shall not be subjected to more restraint than is necessary to prevent his escape.

    • Right to know the grounds of arrest

    Section 50(1) of the Code entitles the arrested person to be informed about the offence’s full details for which he is detained. It is the duty of a police officer and he is bound by law to provide the grounds of arrest without warrant.

    • Right to inform the nominated person of the arrest

    Section 50A of the Code provides, any person nominated by the arrested person shall be informed of the arrest and the place of such detention. This person can be any friend, relative, or anyone so nominated.

    • Health and safety of the arrested person

    Section 55A of the Code imposes the person detaining the accused with a duty to ensure that the accused has been given the proper care of health and safety.

    • Right to see the warrant

    Section 75 of the Code entitles the arrested person to be notified of the arrest warrant’s substance, and if the arrested person requests, the police officer is bound to show the warrant to the accused.

    • Right to be produced before a Magistrate without any retard

    Section 56 of the Code provides that when a person is arrested without a warrant, he shall be produced in front of the Magistrate having jurisdiction in the case, as early as possible, eliminating unnecessary delay. Section 76 of the Code provides that when a person is arrested by producing a warrant, he shall be brought before any Court of Law having jurisdiction in the case, without unreasonable delay. It has been provided further in Section 57 that delay producing before the magistrate shall not be more than 24 hours. If the police officers fail to produce the arrested person before a Magistrate within 24 hours, they shall be held liable for wrongful detention.

    Rights Recognized By the Constitution of India

    The Constitution of India recognizes some rights of arrested persons as fundamental rights. They are explained below:

    • Right to remain Silent

    Article 20(3) of India’s Constitution ensures that each individual has a privilege against self-implication. It expresses that no individual who has been accused of any offence will be constrained to be a witness against himself. This was seen as precedent by the Supreme Court:

    In the case of Nandini Satpathy v. P.L.Dani, it was held that nobody can coercively extricate assertions from the accused and that the accused has the privilege to be quiet during interrogation (investigation).

    The Supreme Court, in the case of Smt. Selvi and Ors. v. State of Karnataka, the Court held that narco-analysis, brain mapping, and lie detector tests violate Article 20(3) of India’s Constitution.

    • Right to Free Legal Aid

    Under Article 21 of the Constitution, the state has an obligation to facilitate the free legal aid to an accused who cannot afford legal services on his own. This right cannot be exercised at the time of trial only, but it is also available from the time the arrested person is brought before a magistrate. The provision mentioned in Section 304 of the CrPC provides that the court can assign a pleader for the accused, at the state’s expense, if the accused does not have sufficient means to assign at his/her own expense.

    • Protection against Arrest and Detention 

    Article 22 of the Constitution provides certain rights against arrest and detention in some cases. Section 22(1) provides that no person shall be detained without being informed of the grounds of arrest, nor shall he be denied the right to consult or be defended by a pleader of his choice.

    22(2) provides that the arrested person shall be produced before the nearest magistrate within 24 hours of such arrest.

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    The protection is given to females

    For the protection of females, there is a general rule applicable that the females cannot be subject to arrest without the presence of any lady constable and cannot be arrested after the sunset. But, when the crime is grave and in exceptional circumstances depending upon the fact and circumstances of the case, the arrest can be made with the order of the magistrate. There is provision for separate lock-ups being provided to the females.

    Conclusion

    The consequences of arrest affect the dignity and the social status of an accused comes at stake. Even if the accused is discharged, his blot out the stigma cannot result in arrest. Financial implications are imposed on the arrested person and his family. Naturally, arrests are not affected frivolously, it needs to be ensured and that the arrestees’ rights guarantee is full. The CrPC has safeguards such as the rights of persons enshrined in Art. 21 and 22(1) are not violated. The criminal administration system mostly ignores such precautions, and courts have been observant about ensuring prisoners’ proper care concerning their rights. Many later declarations have been there in accordance and stats reaffirm the faith in freedom of arrested persons’.

    Arrest And Rights Of An Arrested Person

    Besides this, the other side can also be pointed out, i.e., there are fewer rights available with victims. Society, courts, and even the Criminal Procedural Code, 1973 talks about the arrested person’s rights, but has no such provisions to safeguard the interest of the victim. Their interests are disregarded fully or partially. Nowadays this becomes the news for the media. There are remedies available for the accused and not to who is against the crime committed. Although there are some people getting suffered because of false implication in a case, some get benefited from these provisions.

    It can be concluded that while investigating the case, police and laws applicable should be so particular in the case that the victim doesn’t suffer. The right of liberty of any innocent person should not be violated and this comes under the duty of the law. 

     

    REFERENCES

    1. Lawpedia: Rights of Arrested Person, https://lawpediaindia.blogspot.com/2017/05/rights-of-arrested-person.html (Last Visited September 10, 2020)
    2. Code of Criminal Procedure, 1973.
    3. “More powers for Assam Rifles in Northeast”, The Hindu, February 21, 2019, https://www.thehindu.com/news/national/more-powers-for-assam-rifles-in-northeast/article26332291.ece (Last Visited September 10, 2020).
    4. PROVISIONS RELATING TO ARREST UNDER CRPC, https://lawschoolnotes.wordpress.com/2017/08/18/provisions-relating-to-arrest-under-crpc/ (Last Visited September 10, 2020).
    5. Prof. (Dr.) Priya Sepaha, “Difference between Detention, Arrest and Custody”, PriyaSehpaha.com, https://www.priyasepaha.com/post/2018/07/18/difference-between-detention-arrest-and-custody (Last Visited September 10, 2020).
    6. Smt Selvi & Ors vs. the State of Karnataka, AIR 2010 SC 1974.
    7. Nandini Sathpathy v. PL Dani, AIR 1978 SC 1025.

    BY- Suhani Gupta | UPES, School of Law

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