In a lot of movies, everyone must have heard the police officer speaking his very famous line “HANDS UP, YOU ARE UNDER ARREST”.
Here comes a very important question from where do the police officer gets the right to arrest?
The power and procedure of the arrest have been given under chapter 5 of the CRIMINAL PROCEDURE CODE, 1973.
The term “ARREST” has not been defined in the code but in the case of “DINESH KUMAR V STATE OF HARYANA (2008)” The honorable Supreme Court observed that the expression arrest has neither been defined in the CrPC nor in IPC or any other enactment dealing with criminal offenses. The court cited the meaning of the arrest given in various dictionaries and Halsbury’s law of England, the word arrest when used in its ordinary sense, means “the apprehension or restraint or the deprivation of once’s personal liberty”.
In the case of “CENTRAL BUREAU OF INVESTIGATION V KISHORE SINGH (2010)” The honorable Supreme Court held that when a person is brought to the police station and locked up there, obviously he is under arrest.
TYPES OF ARREST
There are two types of arrest :
1) Section 41(2) – Arrest made in pursuance of a warrant issued by a magistrate- No person concerned in a non-cognizable offense or against whom a complaint has been made or credible information has been received or a reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a magistrate.
2) Section 41(1)-Any police officer may without an order from a Magistrate and without a warrant, arrest any person who commits a cognizable offense.
CASE- JOGINDER KUMAR V STATE OF UTTAR PRADESH - In this case, it was held that no arrest can be made merely because it is lawful to do so, there must be a justifiable reason to arrest.
WHO CAN ARREST EXCEPT POLICE OFFICER?
1) SECTION 43 (ARREST BY PRIVATE PERSON) Any private person may arrest any person who in his presence commits a non-bailable and cognizable offense without delay shall makeover or cause to be made over any person so arrested to a police officer or in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.
2) SECTION 44 (ARREST BY MAGISTRATE) Any magistrate, whether Executive or Judicial can arrest on the ground of any offense and not only on cognizable offense. The magistrate has wider power than a private citizen.
PROCEDURE OF ARREST
SECTION 60A – No arrest shall be made except in accordance with the provisions of the CrPC or any other law for the time being in force provided for arrest. SECTION 46(1) - In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by words or action.
SECTION 46(2)- If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other people may use all means necessary to effect the arrest.
1) SECTION 45- Protection of members of the Armed forces from arrest :
No member of the armed forces of the union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the central government.
2) SECTION 46(4)- In exceptional circumstances, No women shall be arrested after sunset and before sunrise.
But, where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the judicial magistrate of the 1st class within whose local jurisdiction the offense is committed or the arrest is to be made.
3) SECTION 46(1)- Where a woman is to be arrested(unless the circumstances indicate to the contrary) her submission to custody on an oral intimation of arrest shall be presumed and unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the woman for making her arrest.
RESTRICTION ON POLICE
1) SECTION 46(3)- No right to cause the death of a person who is not accused of an offense punishable with death or with imprisonment of life.
2) SECTION 49 -The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.
Our Preamble, “We the people of India, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC……………………………….” clearly reflects the vision of the founding fathers of the constitution that they wanted to establish the RULE OF LAW. As per Article 21 of the constitution of India, No person shall be deprived of his life or personal liberty except according to procedure established by law. That’s why provision related to arrest has been constituted in the CrPC So that no one can violate any right abjectly by arresting anyone.