Author: Smriti Verma,(Amity University Lucknow)
Edited By: Pooja, Rayat College Of Law,Railmajra (Affiliated to Panjab University, Chandigarh)
INTRODUCTION
An arrest involves legally restricting a person’s ability to move freely using authority.
Typically, an arrest requires the presence of an arrest warrant. If there is probable cause and exigent circumstances, an arrest can be made without a warrant at the time of the arrest.
Probable cause is the police officer’s justifiable belief in the suspect’s guilt, formed from facts and information before making an arrest. For example, a warrantless arrest could be considered valid when the police officer believes reasonably that the suspect has either already committed a crime or is going to commit one. The police officer may additionally detain the suspect to stop their potential flight or safeguard evidence. Nonetheless, an arrest without a warrant could be deemed invalid if the officer did not show urgent situations and reasonable cause.
In the Indian Criminal Justice system, Arrests are primarily carried out by the police. Scholars and activists in India strongly criticize the practice of arrests, yet many still argue that ‘the power to arrest’ is a necessary aspect of policing.
The BNSS of 2023 aims to substitute the CrPC of 1973. The CrPC outlines the process for arrest, prosecution, and bail.
Arrest under the Criminal Procedure Code:
A person may be placed under arrest under the Criminal Procedure Code (CrPC) if there are good reasons to suspect that they have committed a crime that is punishable by law.
During an arrest, the police are required by law to adhere to due process, which includes notifying the subject of the arrest of their rights, the reason for the arrest, and the preparation of an arrest document.
If a magistrate approves, a person may be detained in police custody for up to 24 hours at a time; in rare cases, this period may be extended to 15 days.
The CrPC provides instructions on how to be arrested, prosecuted, and granted bail.
The BNSS emphasizes criminal procedures that are centred around citizens and aims to update and simplify criminal justice practices.
BNSS has implemented rules to safeguard elderly or incapacitated individuals when arrested without a warrant.
The BNSS permits a law enforcement officer to utilize handcuffs when arresting or presenting the suspect in court under certain circumstances.
It offers instructions on the prosecution of crimes, the establishment of criminal courts and offices, and the imprisonment of individuals awaiting trial as per the regulations outlined in BNSS.
Keywords: Criminal Procedure Code, Police, Arrest, BNSS, Law enforcement
ARREST UNDER CRPC
Arrest in pursuance of a warrant
A police officer is unable to detain an individual without a warrant if they commit a non-arrestable crime or offence. An arrest warrant gives the authority to arrest someone or to confiscate their property. Each arrest warrant is authorized by a Judge or a Magistrate on the state’s behalf. As per Section 70 of the CrPC, 1973, each arrest warrant from a Court must be written, signed by the presiding officer, and stamped with the Court’s seal. Furthermore, the warrant must continue to be valid until it is revoked by the issuing Court or until it is enforced.
Arrest without warrant
Just like the name implies, ‘Arrest without warrant’ allows a police officer to detain an individual without needing a warrant for a crime that warrants an arrest. Section 41 of the CrPC outlines specific situations in which a police officer can detain a person without a Magistrate’s order or a warrant. As per this part, a law enforcement officer has the authority to detain an individual if they:
- commits a cognizable crime.
- has been declared a criminal either by the State Government’s directive or under CrPC.
- has the stolen items in their possession.
- prevents a law enforcement officer from carrying out their duties or flees or trying to flee from legal detention.
- is believed to have deserted from any branch of the Indian Armed Forces,
- a former prisoner violates a regulation.
- is implicated in any crime that took place outside of India, and
- The person to be arrested and the reason for the arrest is specified by another police officer who has submitted a request for their arrest.
Arrest on refusal to give name and residence
Section 42 of CrPC addresses a different scenario in which a police officer can apprehend an individual, known as ‘Arrest on refusal to provide name and address’. According to this Section, if someone refuses to reveal their name or address, or gives false information when accused of a non-cognizable offence, the police can make an arrest. This also demonstrates that once the correct name and address of the individual are known, they will be set free after signing a bond to appear before a Magistrate when needed. If a person’s true identity and location cannot be determined within 24 hours or they are unable to sign a bond or provide enough guarantors, they must be taken to the closest Magistrate.
Arrest by a private person
This implies that an individual can apprehend anyone who commits a non-bailable and cognizable offence in front of them. Section 43 of the Criminal Procedure Code of 1973 pertains to the ‘Arrest by private person and procedure on such arrest’. One private individual has the authority to detain another individual in certain circumstances.
- He/she engages in a crime that is not eligible for bail and is recognizable by law enforcement.
- the individual has been declared as a wanted criminal.
If there is suspicion that the individual falls within the boundaries of Section 41 of CrPC, law enforcement should detain them again. According to Section 43(3), a person suspected of a non-cognizable offence must provide their name and address to a police officer upon request. If they refuse or provide false information, they will be dealt with according to section 42. If there is no sufficient reason to believe they have committed an offence, they will be released immediately.
Arrest by Magistrate
Section 44 of the Criminal Procedure Code, 1973, discusses the ‘Arrest by Magistrate’, referring to both Judicial and Executive Magistrates. Its first part explains that if a crime occurs in front of a Magistrate, whether they are an Executive or Judicial Magistrate in their area of jurisdiction, they have the authority to arrest the offender or instruct someone else to do so. They can then, depending on bail regulations, detain the offender. Clause (2) affirms that any Magistrate has the authority to apprehend or order someone within their local jurisdiction to arrest a person in his presence.
Section 45 of the CrPC protects Armed Forces members from arrest in connection with their official duties without approval from the Central Government.
HOW IS AN ARREST MADE?
There is no code specifically outlining the process of arrest, while Section 46 of the CrPC, 1973 explains the procedure of making an arrest. Under Section 46(1) of the CrPC, the arresting officer or individual must physically touch or restrain the person being arrested. It also mentions that if a woman is going to be arrested, it is assumed that her compliance with a verbal notice of arrest is sufficient unless the situation suggests otherwise. In addition, the police officer should not physically touch the woman during her arrest unless necessary or if the officer is a female. If someone tries to avoid being arrested or resists arrest by force, the police can use any amount of force necessary to make the arrest. As per Section 46(3), no authority is given by this section to deliberately cause the death of a person not charged with a crime punishable by death or life imprisonment. Furthermore, it is stated in Section 46(4) of the CrPC, 1973 that no woman should be detained between sunset and sunrise.
CONDITIONS ASSOCIATED WITH ARREST
As per DK Basu v. State of Bengal, wherein the Supreme Court gave guidelines of how arrest shall be made, certain conditions are to be met for a lawful arrest, some of them are enumerated as follows:
- When arrest is not necessary, notice must be given before proceeding with the arrest.
- Per Section 41B of CrPC, every police officer must follow certain guidelines when making an arrest.
- Display a precise, easily readable, and clear labelling of his name.
- Create a written record of the arrest, with verification from one witness and approval from the arrested individual.
- Advise the individual who has been arrested about their right to have a family member notified.
- Control rooms for police will be set up in each district and at the state level as per Section 41C of the CrPC.
- A person who has been arrested has the right to consult with a lawyer during questioning, but not constantly, as stated in Section 41D of the CrPC.
- A Police Officer can, in addition to making an arrest, utilize the following powers: –
- Authorities have the right to search a location where the person being sought for arrest has entered.
- May follow any individual to any location within India.
- Must not impose additional constraints on individuals beyond what is essential.
- Advise the individual in custody about the reasons for their arrest.
- Advise the individual who has been arrested about their right to post bail.
- Is required to notify a designated individual about the arrest.
- Look for the individual who has been taken into custody.
- Grab an aggressive tool.
- Medical evaluation of defendant as requested by law enforcement officer.
- Medical assessment of individuals facing accusations of sexual assault.
- Medical assessment of an individual who has been taken into custody.
- The person responsible for custody must ensure the health and safety of the arrested person by taking appropriate precautions.
- An individual who has been arrested must be presented to the magistrate within 24 hours of the arrest under Section 57 of the CrPC.
- The officer in command must inform the District Magistrate of every arrest made without a warrant.
- Individuals taken into custody will be released on their recognizance by posting bail or through a special order from the magistrate.
- Authority to chase and recover in the event of fleeing.
- Any arrest must adhere strictly to the CrPC as outlined in Section 60A.
- In the case of Arnesh Kumar v. State of Bihar (2014), the Supreme Court of India instructed that police officers should not arrest the accused without sufficient reason and that magistrates should not approve detention in such circumstances.
ARREST UNDER BNSS
- The new rule regarding elderly/sick individuals being detained without a warrant is now under Section 35 of the BNSS, combining Sections 41 and 41A of the CrPC. A new provision has been added for elderly and disabled individuals in addition to the current provisions in the CrPC. According to Section 35(7) of the BNSS, individuals who are elderly or infirm and the offence they committed is punishable by less than three years imprisonment cannot be arrested without authorization from a Deputy Superintendent of Police.
- The range of individuals who receive information about an arrest has been expanded: According to the CrPC, only the police officer could inform the person’s relative or friend about the arrest. Information can now be shared with a person’s chosen relative, friend, or other named individual under the BNSS.
- The additional requirement concerning the information about an arrest: If a person is arrested with a warrant, Section 82(2) of the BNSS now requires the arresting officer to immediately provide details about the arrest and the location of where the arrested individual is being held to the designated police officer, as well as to a police officer in the district where the arrested person usually lives. Furthermore, Section 48 of the BNSS now states that details of the arrest and location of the detainee must be reported to the assigned police officer in the area.
- Keeping records of arrested individuals and showing it: Section 41C of the CrPC states that the State Government must ensure that the names and addresses of arrested persons, as well as the names and positions of the arresting police officers, are posted on notice boards outside control rooms in each district. Section 37 of the BNSS outlines the details of that particular necessity. The State Government must assign a police officer, at least an Assistant Sub-Inspector of Police, in each district and police station to keep records of arrested individuals’ names, addresses, and charges. It is necessary to have this displayed prominently at district headquarters and police stations, including using digital methods.
- Arrest for not providing name and address or providing incorrect information: According to Section 42 of the CrPC, a person could be released by signing a bond, with or without sureties, in these instances. According to Section 39 of the BNSS, a person who is arrested in these cases can be set free with a bond or bail bond, as specified in the codified ‘bail bond’.
- The new time limit for private individuals to hand over arrested individuals to authorities: Under the amended Section 40(1) of the BNSS, those who make an arrest must bring the arrested person before a police officer within six hours or take them to the closest police station. Section 43(1) of the CrPC previously indicated the need to produce the person without any unnecessary delay, and this timeframe is now better defined.
- Individuals who are arrested without a warrant should not be held for longer than 24 hours (regardless of whether the Magistrate has authority or not). Section 57 of the CrPC states that a police officer cannot keep a person in custody for an excessively long period, which should not surpass 24 hours (excluding the time needed to travel from the place of arrest to the Magistrate) unless directed otherwise by a Magistrate. Changes to Section 58 of the BNSS include the addition of “whether having jurisdiction or not” at the provision’s end, mandating that the arresting officer must promptly present the detainee before the closest Magistrate regardless of the Magistrate’s jurisdiction.
Changes have been made to bail provisions and detention periods for under-trial prisoners in the BNSS:
The new approach is more lenient towards first-time offenders, allowing them to seek release on bond after serving one-third of the maximum imprisonment period for their offence. The jail superintendent can now request bail for undertrial prisoners who have completed either one-half or one-third of the specified period. Tougher conditions apply for undertrial prisoners with multiple offences or cases. When someone is involved in multiple offences or cases, bail cannot be granted by the court. As a result, the chances of getting bail decrease when dealing with multiple cases brought against a person by a complainant. In any case, the individual must not be held longer than the specified maximum prison term for that offence under the law during the legal process. Offences with the death penalty or life imprisonment as potential punishments are excluded from this rule. Section 436A of the CrPC corresponded to Section 479 of the BNSS.
CONCLUSION
For the law of arrest to be successful, police officers must be knowledgeable. up to date on arrest laws and guidelines. Supreme Court rulings related to the apprehension. afforded equal rights throughout the legal process. provided with all the rights that have been granted and acknowledged by the law. The police officer must exercise care, particularly while arresting the women and children. It is said that Justice should not just be carried out but should also appear to be carried out. Justice involves achieving equilibrium. the concern for both the people and the society. Being one of the complicated tasks, it is observed that very Often, individual freedom may need to be given up to protect the welfare of the community, especially. with occurrences of increasing violence and criminal activity within homes and across state borders. Yet, considering the most recent NHRC investigation. The police must adhere to specific guidelines, which often restrict their operations. Stringent procedures are adhered to in urban areas.
REFERENCES
- https://indiankanoon.org/doc/2982624
Important Statutes:
- The Code of Criminal Procedure(1973)
- Bhartiya Nagarik Suraksha Sanhita (2023)
