THE POWER OF ARREST UNDER THE CRPC
Chapter V of the CrPC deals with the arrest of persons. Section 41 of the CrPC, vide the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009, Section 5) (w.e.f. 01-11-2010), deals with the power of the Police Officer to arrest without warrant. It reads as follows after substitution:
“41. When police may arrest without warrant.
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-
(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police office is satisfied that such arrest is necessary-
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person Substituted by Act 5 of 2009, sec.5(i), for clauses (a) and (b) (w.e.f. 1-11-2010).
acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be 15 Ins. By Act 41 of 2010, sec.2 (w.e.f. 2-11-2010). stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
(2) Subject to the provisions of Section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.”
Section 41A of the CrPC, inserted w.e.f. 01.11.2010, provides for issuance of Notice by the Police Officer in all the cases covered by Sub-Section (1) of Section 41 of the CrPC, where the arrest of a person is not required, to appear before him. As long as a person complies with the Notice, Section 41A(iii) prohibits arrest unless the Police Officer, for reasons to be recorded, is of the view that he is to be arrested.
Section 41B of the CrPC, again inserted w.e.f. 01.11.2010, casts a duty on a Police Officer, to bearidentification of his name. He is to prepare a Memorandum of Arrest, which is, inter alia, to be countersigned by the person arrested. Section 41D of the CrPC confers a right on the arrested person to meet an Advocate of his choice during the interrogation, though not throughout interrogation.
Under Section 42 of the CrPC, if a person commits a non-cognizable offence in the presence of a Police Officer or he is accused of committing a non-cognizable offence, and the Police Officer, on demanding his name and residence, is met with a refusal or the giving of a name or residence, which the Officer believes to be false, arrest can be made but for the purpose of ascertaining the name and residence. In fact, he is to be released immediately on executing a bond when the true name and residence is ascertained. If there is failure to ascertain the address within twenty-four hours, inter alia, of arrest, no doubt, it is forthwith forwarded to the nearest Magistrate having jurisdiction.
The Act contemplates arrest by a private person. The power and the procedure, is detailed in Section 43 of the CrPC, it reads as follows:
“43. Arrest by private person and procedure on such arrest.
(1) Any private person may arrest or cause to be arrested any person who in his presence commits a non- bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over 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) If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re- arrest him. (3) If there is reason to believe that he has committed a non- cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.”
Section 46 of the CrPC provides for the manner of arrest.
Section 47 enables the Police Officer to search the place entered by a person sought to be arrested.
Section 48 of the CrPC reads as follows:
“48. Pursuit of offenders into other jurisdictions. A police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India.”
The person arrested is not to be subjected to more restraint than is necessary to prevent his escape, declares Section 49 of the CrPC. Every Police Officer or other person, arresting a person without a warrant, is bound forthwith to communicate to him all particulars of the offence for which he is arrested or other grounds for such arrest. This is provided for in Section 50 of the CrPC.
A Police Officer, when he arrests a person without warrant and he is not accused of committing a non-bailable offence, is duty-bound to inform him of his entitlement to be released on Bail. The Police Officer is also under an obligation to inform, under Section 50A of the CrPC, a nominated person about the factum of arrest. This came into force on 23.06.2006. Section 51 deals with search of the arrested person.
Section 54 of the CrPC declares that when any person is arrested, he shall be examined by a Medical Officer. Section 54A of the CrPC, inserted w.e.f. 23.06.2006, specifically provides for identification of the arrested person. Section 55A of the CrPC, inserted w.e.f. 31.12.2009, makes it the duty of the person, having the custody of the person, to take reasonable care of the health and safety. Section 56 of the CrPC makes it the duty of the Police Officer, arresting without warrant, to produce the person arrested before a Magistrate having jurisdiction without unnecessary delay or before the Officer In-charge of a Police Station.
This is, no doubt, subject to the provisions as to Bail. Section 57 of the CrPC, reads as follows:
“57. Person arrested not to be detained more than twenty- four hours. No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’ s Court.”
The Officer In-charge of Police Station is to report about all persons arrested without warrant to the District Magistrate or the Sub-Divisional Magistrate as directed by the District Magistrate.
Section 59 of the CrPC provides that no person, who has been arrested by a Police Officer, shall be discharged, except on his own bond or on Bail or under the Special Order of the Magistrate. Section 60A of the CrPC provides that no arrest is to be made, except in accordance with the provisions of the CrPC or any other law being in force, providing for arrest.
Chapter XI of the CrPC provides for preventive action of the Police.
Section 151 of the CrPC, inter alia, empowers a Police Officer, knowing of a design by a person to commit a cognizable offence, to arrest him without orders from a Magistrate and without a warrant.
Section 157 of the CrPC provides, inter alia, that the Police Officer, proceeding to investigate a case, may take measures for the arrest of the offender. Section 167 of the CrPC deals with a case where investigation is not completed within twenty-four hours, as fixed in Section 57 of the CrPC. It provides that in such a situation, if there are grounds for believing that the accusation or information is well founded, the person arrested, is to be forwarded to the Magistrate, inter alia. Section 167 empowers Magistrate to order remand of the accused person, as provided therein.
To invoke Section 167(1), it is not an indispensable pre-requisite condition that in all circumstances, the arrest should have been effected only by a police officer and none else and that there must necessarily be records of entries of a case diary. Therefore, it necessarily follows that a mere production of an arrestee before a competent Magistrate by an authorised officer or an officer empowered to arrest (notwithstanding the fact that he is not a police officer in its stricto sensu) on a reasonable belief that the arrestee “has been guilty of an offence punishable” under the provisions of the IPC or any special Act is sufficient for the Magistrate to take that person into his custody on his being satisfied of the three preliminary conditions, namely-
(1) the arresting officer is legally competent to make the arrest;
(2) that the particulars of the offence or the accusation for which the person is arrested or other grounds for such arrest do exist and are well-founded; and
(3) that the provisions of the special Act in regard to the arrest of the persons and the production of the arrestee serve the purpose of Section 167(1) of the Code.
Again the word ‘accused’ or ‘accused person’ is used only in a generic sense in Section 167(1) and (2) denoting the ‘person’ whose liberty is actually restrained on his arrest by a competent authority on well-founded information or formal accusation or indictment. Therefore, the word ‘accused’ limited to the scope of Section 167(1) and (2) — particularly in the light of Explanation to Section 273 of the Code includes ‘any person arrested’. Section 167(1) of the CrPC contemplates forwarding the diary which was interpreted to be not the general diary and the special diary under Section 167(2) of the CrPC.
Last it shall be remembered that the arrest of a person involves an encroachment on his/her personal liberty. Article 21 of the Constitution of India declares that no person shall be deprived of his personal liberty and life except in accordance with procedure established by law. There can be no doubt that the power to arrest any person therefore must be premised on a law which authorizes the same. Police has a statutory duty to inform the arrestee of the grounds for such arrest as contemplated under Article 22(1) of the Constitution and Section 50 of the Code. If police failed to dischurge its statutory duty the Magistrate must Perform it before remanding the arrested person.