Introduction-
The word “Arrest” has not defined in any provision under the Criminal Procedure Code, however, the legal dictionary by Farlex defines arrest as “seizure or forcible restraint. Basically, an arrest is an exercise of the power by the authorities to deprive a person of his/her personal liberty by taking him/her into custody.
However, sections 41 & 42 of the criminal procedure code specify the circumstances under which the police have the power to make arrests without a warrant.
The object of conferring such power to arrest without a warrant on police is as follows:-
- Where a serious (cognizable) offence has been committed or
- In non-cognizable cases, to ascertain the name & address of the offender perpetrating the crime or
- Forestalling the impending crimes as a preventive measure.
Any police officer without any order from a magistrate and without a warrant; arrest a person who commits a cognizable offence in the presence of a police officer; or against whom a reasonable suspicion or credible information exists that a person commits a cognizable offence which is punishable with imprisonment for a term which may extend to seven years. But, one needs to satisfy some conditions. Firstly if the police officer has a reason to believe that such person has committed the said offence; and secondly, if such arrest is to the satisfaction of the police officer:
- To prevent the person from committing any further offence or
- To prevent disappearance or tampering of evidence
- For the proper investigation or
- To prevent threatening of witnesses
- To ensure his presence in the court when required
Although if the police officer believes that it is not necessary to arrest the person then it is mandatory for him that he shall record the reasons for the same.
Section 41(2)
there must be definite facts and materials before the police officer to make the reason for the arrest:
- Against whom a piece of credible information exists that a person has committed a cognizable offence which is punishable with imprisonment for a term which may extend to more than seven years or with a death sentence
- Who has been declared a proclaimed offender?
- If any person Is reasonably suspected to be in possession of the stolen property and is also suspected of having committed an offence in respect of such property
- Who obstructs a police officer from discharging his duty or attempts to escape from lawful custody.
- if any personnel had left the services of the armed forces without an official resignation.
- Against whom credible information exists etc. of having committed an offence outside India which also is an offence in India and for which he is liable to be detained in custody in India under the law relating to extradition.
- Who has breached the concerned rules while on release as a convict?
For whose arrest any request has been received from another police officer. However, the offence shall be one for which the person might lawfully be arrested without a warrant. The court held in State of Maharashtra v. CCW Council of India that a request can be through a telephonic message as well.
Furthermore, a person concerned with a non-cognizable offence is not to be arrested without an order of a magistrate.
NOTICE OF APPEARANCE BEFORE POLICE OFFICER
If an arrest does not fall under section 41 of the Criminal Procedure Code, then the police officer has to serve a notice to the person against whom a reasonable suspicion exists; that he has committed a cognizable offence to appear before him at the prescribed place. The person upon whom the notice has been served shall comply with the same. If he continues to comply with the notice, then he shall not be arrested unless the Police Officer is of opinion that he ought to be arrested, also if the person fails to comply with the notice of the arrest or is unwilling to identify himself then the police officer may arrest him for the offence mentioned in the notice.
PROCEDURE OF ARREST AND DUTIES OF OFFICER MAKING ARREST
Identification of Police officer
The police officer making the arrest must have an accurate, visible, and clear identification of his name. The Police officer shall prepare a memorandum of arrest which shall be attested by at least one witness (either member of the family of person arrested or a respectable member of locality). The same shall be countersigned by the person arrested. Also, it is the duty of the police officer that he shall inform the person arrested that he has a right to inform his relative or a friend about his arrest unless a memo of arrest has been attested by a member of his family.
Section 41-D: RIGHT OF ARRESTED PERSON
The provision given under section 41-D of the criminal Procedure code gives the arrested person the right to meet an advocate of his choice during the interrogation, though not throughout the interrogation.
ARREST ON REFUSAL TO GIVE NAME & RESIDENCE
The police officer may arrest a person;
- if he/she refuses to give his name and residence or ;
- gives a name or a residence which the officer has reason to believe to be false.
Although this provision applies to the persons who commit a non-cognizable offence in the presence of a police officer or; to the person, believes to be an offender of committing such an offence before such officer.
However, the arrest has to be for the ascertainment of name & residence.
It is further provided in the criminal procedure code that the person is to be released if he executes a bond to appear before a magistrate if the name & address have been ascertained or are otherwise known to the police officer.
If the authorities arrest any person, the authorities cannot detain that person in custody beyond 24 hours in any circumstances. And, within 24 hours the authorities shall have to produce him before the magistrate having jurisdiction.
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