Meaning of Arrest
Broadly speaking, arrests may be classified into two categories, namely, arrests under warrants issued by a Court and arrests otherwise than under such warrants. As to the first category of arrest, Ss. 75 to 86 collected under sub-heading “B-Warrant of Arrest” in Chap. 5, Criminal P.C. deal with arrests in execution of warrants issued by a Court under that Code. Section 75 prescribes that such a warrant must be in writing signed by the presiding officer, or in the case of a Bench of Magistrates, by any member of such Bench and bear the seal of the Court. Form No. 2 of sch. 5 to the Code is a form of warrant for the arrest of an accused person. The warrant quite clearly has to state that the person to be arrested stands charged with a certain offence. Form No.7 of that Schedule is used to bring up a witness. The warrant itself recites that the Court issuing it has good and sufficient reason to believe that the witness will not attend as a witness unless compelled to do so. The paint to be noted is that in either case the warrant ex facie sets out the reason for the arrest, namely, that the person to be arrested has committed or is suspected to have committed or is likely to commit some offence. In short, the warrant contains a clear accusation against the person to be arrested. Section 80 requires that the Police Officer or other person executing a warrant must notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant. It is thus abundantly clear that the person to be arrested is informed of the grounds for his arrest before he is actually arrested. Then comes S. 81 which runs thus:
“The Police officer or other person executing a warrant of arrest shall (subject to the Provisions of S. 76 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person.”
Apart from the code of criminal Procedure, there are other statutes which provides for arrest in execution of a warrant of arrest issued by a Court. To take one example, O. 38, R, 1, civil p.c., authorises the Court to issue a warrant for the arrest of a defendant before judgment in certain circumstance. Form No 1 In Appendix F sets out the terms of such a warrant. It clearly recites that it has been proved to the satisfaction of the Court there is probable cause for belief that the defendant is about to do one or other of the things mentioned in R. 1. The Court may under S. 55 read with O. 21, R. 38 issues a warrant for the arrest of the judgment-debtor in execution of the decree. Form No. 13 sets out the terms of such, warrant. The warrant recites the decree and failure of the judgment-debtor to pay the decorate amount to the decree-holder and directs the Bailiff of the .Court to arrest the defaulting judgment- debtor, unless he pays up the decretal amount with costs and to bring him before the Court with all convenient speed. The point to be noted is that, as in the- case of a warrant of arrest issued by a Court under the code of criminal procedure, a warrant of arrest issued by a Court under the Code of civil procedure quite Plainly discloses the reason for the arrest in that it sets out an accusation of default apprehended or actual, and that the person to be arrest made acquainted with the reason for his arrest before he is actually arrested. “
The several sections collected under subheading “B-Arrest without warrant” in chap.5, Criminal P. C., deal with arrest otherwise than under warrants issued by a Court under that Code. Section 54 sets out nine several circumstances in which a police officer may, without in order from a Magistrate and without a warrant arrest a person Sections 55,57,151,and 401(3) confer similar powers on police officers. Column (3) Sch. 2, Criminal P.C., also specifies the cases where the police may arrest a person without warrant. Section 56 empowers on officer in charge of a police station or any police officer an investigation under Chap. 14 to require any subordinate to him to arrest without a warrant any person who may lawfully be without a warrant. In such a case, the officer deputing a subordinate officer to make the arrest has to deliver to the latter an order in, writing specifying the person to be arrested and the offence or other cause for which the arrest is to be and the subordinate officer is required before making the arrest, to notify to the person to be arrested the substance of the order and, if so required by such person, to show him the order. Section 59 authorises even a private person to arrest any person who in his view commits a non-able and cognisable offence or any proclaimed offender and requires the person making the arrest to make over the arrested person without unnecessary delay, to a police officer or to take such person in custody, to the nearest police station. A perusal of the sections referred to above will at once make it plain that the reason in each case of arrest without a warrant is that the person arrested is accused of having committed or reasonably suspected to have committed or of being about to commit or of being likely to commit some offence or misconduct. It is also to be noted that there is no provision, except in S. 56, for acquainting the person to be arrested without warrant with the grounds for his arrest. Sections 60 and 61 prescribe the procedure to be followed after a person is arrested without warrant. They run thus:
“60. A police officer making an arrest without warrant shall without unnecessary delay and subject to the provisions herein contained as to ball, take or send the person arrested before a Magistrate having jurisdiction in the care, or before the officer in charge of a police station.”
“61. 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 S. 167, exceed twenty-four hours, exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.”
Apart from the Code of Criminal Procedure, there are other statutes which authorise the arrest of a person without a warrant issued by any Court Reference may, by way of example, be made to Ss. 173 and 174, Sea Customs Act (8 of 1878) and S. 64, Forest Act (16 of 1927). In both cases, the reason for the arrest is that the arrested person is reasonably suspected to have been guilty of an offence under the Act and there is provision in both cases for the immediate production of the arrested person before a Magistrate. Two things are to be noted, namely, that, as in the cases of arrest without warrant under the Code of Criminal Procedure, an arrest without warrant under these Acts also proceeds upon an accusation that the person arrested is reasonably suspected of having committed an offence and there is no provision for communicating to the person arrested the grounds for his arrest.
Turning now to Art. 22 (1) and (2), we have to ascertain whether its protection extends to ‘both categories of arrests mentioned above, and, if not then which one of them comes within its protection There can be no manner of doubt that arrest without warrants issued by a Court call for greater protection than do arrests under such warrants, The provision that the arrested person should within 24 hours be produced before the nearest Magistrate is particularly desirable in the case of arrest otherwise than under a warrant issued by the Court, for it ensures the immediate application of a judicial mind to the legal authority of the person making the arrest and the regularity of the procedure adopted by him. In the case of arrest under a warrant issued by a court the Judicial mind had already been applied to the case when the warrant was issued and, therefore, there is less reason for making such production in that case a matter of a substantive fundamental right. It is also perfectly plain that the language of Art 22 (2) has been practically copied from Ss. 60 and 61, Criminal P.C. which admittedly prescribe the procedure to be followed after a person has been arrested without warrant. The requirement of Art. 22 (1) that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest indicates that the clause really contemplates an arrest without a warrant of Court, for, as already noted, a person arrested under a Court’s warrant is made acquainted with the grounds of his arrest before the arrest is actually effected. There can be no doubt that the right to consult a legal practitioner of his choice is to enable the arrested person to be advised about the legality or sufficiency of the grounds for his arrest. The right of the arrested person to be defended by a legal practitioner of his choice postulates that there is an accusation against him against which he has to be defended. The language of Art. 22 (1) and (2) indicates that the fundamental right conferred by it gives protection against such arrests as are effected otherwise than under a warrant issued by a Court on the allegation or accusation that the arrested person has, or is suspected to have, committed, or is about or likely to commit an act of a criminal or quasi-criminal nature or some activity prejudicial to the public or the State interest. In other Words, there is indication in the language of Art. 22(1) and (2) that it was designed to give protection against the act of the executive for other non-judicial authority. The Blitz case (Petn. No. 75 of 1952) on which Sri Dadachanji relies, proceeds on this very view, for there the arrest was made on a warrant issued, not by a Court, but by the Speaker of a State legislature and the arrest was made on the distinct accusation of the arrested person being guilty of contempt of the Legislature. It is not, however, our purpose, nor do we consider it desirable, to at tempt a precise and meticulous enunciation of the scope and ambit of this fundamental right or to enumerate exhaustively the cases that come within its protection. Whatever else may come with the purview of Art. 22 (1) and (2), suffice it to say for the purposes of this case, that we are satisfied that the physical restraint put upon an abducted person in the process of recovering and taking that person into custody without any allegation or accusation of any actual or suspected or apprehended commission by that person of any offence of a criminal or quasi-criminal nature or of any act prejudicial to the State or the public interest and delivery of trial person to the custody of the officer in charge of the nearest camp under S. 4 of the impugned Act cannot be regarded as arrest and detention within the meaning of Art. 22 (1) and (2). In our view, the learned Judges of the High Court over-simplified the matter while construing the Article, possibly because the considerations hereinbefore adverted to were not pointedly brought to their attention.
Our (Supreme Court) attention has been drawn to Ss. 100 (search for persons wrongfully confined) and 552 (power to compel restoration of abducted females) of the Code of Criminal Procedure, and it has been urged that neither of those sections contemplates an accusation against the victim and yet such victim, after recovery, has to be brought before a Magistrate. It is to be observed that neither of the two sections treats the victim as an arrested person for the victim is not produced before a Magistrate under Ss. 60 and 61 which require the production of a person arrested without warrant, or under S. 81 which directs the production of a person arrested under a warrant issued by a Court. The recovered victim is produced by reason of special provisions of two sections, namely, Ss. 100 and 552. These two sections clearly indicate that the recovery and taking into custody of such a victim are not regarded as arrest at all within the meaning of the Code of Criminal Procedure and, therefore, cannot also come within the protection of Art. 22 (1) and (2). This circumstance also lends support to the conclusion we have reached, namely, that the taking into custody of an abducted person under the impugned Act is not an arrest within the meaning of Art. 22 (1) and (2). Before the Constitution came into force, it was entirely for the Legislature to consider whether the recovered person should be produced before a Magistrate as is provided by Ss. 100 and 552, Criminal P. C. in the case of persons wrongfully confined or abducted. By this Act, the Legislature provided that the recovered Muslim abducted person should be taken straight to the officer in charge of the camp, and the Court could not question the wisdom of the policy of the Legislature. After the Constitution, Art. 22 being out of the way, the position in this behalf remains the same.
The State Of Punjab Versus Ajaib Singh and anothers – AIR 1953 SC 10 : (1953) SCR 254 : (1953) CriLJ SC 180
