INTRODUCTION
What comes to the mind of an individual when they think of illegal detention? The term detention is something that somehow terrifies a person. Whereas here we are talking about the detention that is illegal.
To clear the doubts on this topic and for a brief understanding of what illegal detention is. We will focus on the provisions provided under the Criminal Procedure Code on how the detention takes place.
‘Detention’ in simpler terms is the act of reserving or arresting a person or property. Whereas, ‘illegal detention’ is the unsubstantiated imprisonment or violation of the liberty of an individual by arresting him.
A person is liable to illegal detention if there is an illegitimate cause or suspicion. Besides this, there is a continuous restraint on one’s personal liberty by detaining an individual in custody.
DIFFERENCE BETWEEN DETENTION AND ARREST
Most of the time, the concept of arrest is mixed with that of illegal detention. Whereas, there is a huge difference between the definitions of ‘arrest’ and that of ‘detention’.
This somehow makes it is necessary for one to know how to know the difference between the two. ‘Arrest’ as defined under the Criminal Procedure Code has a different procedure, while detention is not as grave as an arrest. The term of detention is shorter than arrest. Apart from this, it needs less burden of proof.
Further, the question arises who can detain a person. The answer to this question is simple and there are authorities empowered to detain a person.
A Police officer can detain an individual if he has a reasonable doubt or suspicion that someone has committed a crime or the person can commit. There are situations where the police officer reasonably believes that an individual may have information regarding the same.
Then in such cases, the person with the appropriate authority have the liberty of detaining the individual for a short span of time, to investigate into the matter. Further, in cases, if an individual is previously detained for any offense, the authorities can:
1. frisk the person for any weapons,
2. seek information regarding the crime that can occur.
The process of detention is different. In the cases of arrest, a person can be in custody for up to 24 hours or more. While, as per the ruling of a reasonable timeframe, a person can approximately be in detention for up to 20 minutes.
Who Can Arrest?
To avoid any kind of confusion and overlapping of powers of authorities, there are certain bodies specified, having legal powers to detain a person.
These administrative bodies include police, the Judicial Magistrate and/or any private person, as mentioned under the certain provisions under the Criminal Procedure Code. The Armed Forces Personnel are an exception under the code of criminal procedure.
They are liable to punishment as per the special acts for any criminal activity carried out by them. This process takes place only in the tenure of their official duty with the consent from the Government, states Section 45 of the code.
Section 43 as defined under the Criminal Procedure Code provides for the arrest by any private person. It states that any private person has the authority to arrest an individual without a warrant. Such kind of power is only granted if the person has been an offender under Section 82 Criminal Procedure Code. Also, when a person commits a non-bailable or cognizable offense.
When the private person has a warrant under Section 72 and 73, or with the permission of a Police officer or under the order of the Judicial Magistrate under Section 37 and 44 of the Code.
Under Section 44 of the Criminal Procedure Code, either the Judicial or the Executive Magistrate may arrest a person or order a person to arrest the offender for committing an offense in his presence. The authority to grant bail or to keep an offender in custody is in the hands of the Magistrate according to the provision in the Criminal Code.
Procedure Of Arrest
Section 46 of the Criminal Procedure Code, provides the different ways in which appropriate authorities can carry out an arrest. The process can be with or without a warrant.
A Police Officer or a private person who carries out an arrest of another person, shall not touch or confine the body of the person liable to arrest unless there be a submission to the custody by word or action states section46(1) of the Act.
A Government official or a private person has the authority to make an arrest of any person by using all means. If a person resists or attempts to escape the arrest, the police can use the required means.
A police officer may, for the purpose of arresting without warrant any person who may arrest, pursue such person into any place in India. It is provided under Section 48 Criminal Procedure Code.
CONCLUSION
The above-mentioned facts and provisions of the code of criminal procedure give us information about illegal detention. It also tells us why it is required.