B.
A VI th Semester Police Administration
Subject Law and Police administration
Date 5-5-2020
Unit IV
Topics 1 : Arrest (Section 41) and Right of Arrested Person
Meaning of Arrest
Generally, a person who breaks the law is arrested. So, what is arrest? In general
term, ‘arrest’ would mean that when a person is arrested they lose some of their
freedom and liberty. They are put under restraint.
The Criminal Procedure Code of 1973, however, that deals with the aspects of
arrests, has not defined the ‘Arrest’. When a person is arrested, then the arrested
person is taken into custody of an authority empowered by the law for detaining
the person. The person is then asked to answer the charges against him and he is
detained so that no further crime is committed.
At times, there is restraint by the legal authority but sometimes the person on his
own submits to the custody of the person making the arrest.
As per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible restraint;
an exercise of the power to deprive a person of his or her liberty; the taking or
keeping of a person in custody by legal authority, especially, in response to a
criminal charge.”
In Indian law, Criminal Procedural Code 1973 (hereinafter referred to as CrPC),
chapter V (Section 41 to 60) talks about Arrest of a person but it does not define
arrest anywhere.
Types of Arrest: There are two Two types of arrest
1. An arrest made in view of a warrant issued by a magistrate
2. An arrest made without such a warrant but in accordance with some legal
provision permitting such an arrest
Who can make arrest?
The arrest can be made by police, magistrate and even a private person
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Section 41(1) CrPC Says: Any police officer- may without an order from a
magistrate and without a warrant arrest any person who has committed a
cognizable offence, who is in possession of stolen property, or is a state offender,
who obstructs a police officer in discharge of his duty, who attempts to escape
from lawful custody, who is declared as a deserted from any of the Armed Forces
of the Union, who is a released convict and breaches his contract of release etc.
Section 42 authorizes a police officer to arrest a person for an offence which is
non-cognizable if the person to be arrested refuses to give his name and residence.
Section 43 gives the right to a private person like you and me to carry out an arrest
of a person who in his presence commits a cognizable or a non-bailable offence or
who is a proclaimed offender. Section 44 arrest by magistrate as per section 44(1)
of CrPC, the Magistrate has been given the power to arrest an individual who has
committed an offence in his presence and also commit him to custody.
However, CrPC exempts the members of Armed forces from being arrested for
anything done by them in discharge of their official duties except after obtaining
the consent of the government (section 45 CrPC).
Section 46 of CrPC explains how arrest is made with or without warrant.
Section 46(4) special protection as females, that forbids arrest of women after
sunset and before sunrise, except in exceptional circumstances in which case the
arrest can be done by a woman police officer after making a written report
obtaining a prior permission from the concerned judicial magistrate of first class
within whose local jurisdiction the offence is committed or the arrest is to be made.
Constitutionality of Section 107 and 151 of CrPC
For the purpose of arresting without a warrant, a police officer may pursue such an
individual into any place in India as stated under Section 48. Section 49 of the
Code says that the arrested person shall not be subject to any unnecessary restraint
or physical inconvenience unless it is required to do so to prevent his escape.
Section 151 gives power to the police officials to arrest a person, without a
warrant, on the suspicion that he may commit a cognizable offence. However, this
comes with certain conditions: the anticipated offence should be cognizable and
the officer should feel that the offence would be prevented only by an arrest of the
suspect. Section 107 gives similar powers to the magistrate. However, Numerous
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petitions have been filed questioning the constitutional validity of these sections as
it gives plenty of room for the misuse of powers under these sections.
Rights of an arrested person in India
Introduction
The accused in India are afforded certain rights, the most basic of which are found
in the Indian Constitution. Article 21 of Indian Constitution provides few rays of
hope to the lives of arrested, under trials and convicts. The treatment of such
people has to be humane and in the manner prescribed by law. Hence, the accused
has been provided with certain rights under the law.
The rights are as follows and have been discussed in the chapters that follow, of
this project in detail.
They are as follows and there is a brief mention of the legal provisions for them.
GROUNDS OF ARREST: RIGHT TO BE INFORMED
This right has been given the status of a Fundamental right in the Indian
Constitution. Article 22(2) of the Indian Constitution says that “no person who is
arrested shall be detained in custody without being informed as soon as may be, of
the grounds of such arrest nor shall he be denied the right to consult, and to be
defended by a legal practitioner of his choice.”
This right is very important for the person arrested as he may be innocent. If he
gets to know of the grounds of arrest then it enables him to apply for bail or in
appropriate circumstances for a writ of habeas corpus, or to make fast and suitable
s arrangement for his defence. Also, it gives the arrestee the right that any one
person close to him is informed about his arrest immediately.
Madhu Limaye Case is an example here.
The legal provisions for the same can be found in:
Section 50(1). 55,75 of CrPC and Art 22(2) of the Constitution of India
RIGHT TO SILENCE
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Just because the accused /arrested person chose to be silent under interrogation
doesn’t mean that he is guilty. There is much speculation if this right is to be
exercised in modern times as mentioned in Justice Malimath Committee’s report.
Nandini Sathpathy vs P.L.Dani: In this case it was mentioned that no one can
forcibly extract statements from the accused, who has tevery right to keep silent if
he so chooses.
The legal provisions for the same can be found in:
Art 20(2) of the Constitution of India
RIGHT TO BE RELEASED ON BAIL
Article 21 of the Indian Constitution says that every individual shall have a right to
liberty as per procedures established by law. However, an accused cannot be given
all these liberties till he is proven innocent. But he needs to be informed that he has
a right to apply for bail in bailabe offences and even in non-bailable offences, bail
is granted by the Court after taking into factors such as nature or seriousness of the
offence, the character of the evidence etc.
Case Law: Uday Mohanlal Acharya v. State of Maharashtra
The legal provisions for the same can be found in:
Sections 50(2), 436, 437, 438 of CrPC
Sections 42, 43, 56, 59, 169, 170, 436, 437 and Schedule I Column 5 of CrPC also
confer the right to grant bail to the accused but by the police under certain rules.
RIGHT TO BE TAKEN BEFORE MAGISTRATE WITHOUT DELAY
Whether the arrest was made with or without warrant. The person making such an
arrest is duty bound to present the accused before the magistrate within 24 hours
excluding the time taken for traveling from the place of arrest to the Magistrates’
court.
Case Law: State of Punjab v Ajaib Singh
The legal provisions for the same can be found in:
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Sections 56,71,76 of CrPC
RIGHTS REGARDING DETENTION
If the arrested person is not produced before a magistrate within 24 hours of the
arrest, by the police officer then he shall be held guilty of wrongful detention.
This right has been created with a view-
i. that the arrestee is not compelled to give confessions, or as a means of
compelling people to give information;
ii. So, the police stations don’t act like prisons for which they are unsuitable.
Case Law: Gunupati Keshavram v. Nafisul Hasan
The legal provisions for the same can be found in:
Section 57 of CrPC, Art 22(2) of the Constitution of India
RIGHTS AT TRIAL
Keeping with the international system of law, our constitution upholds the fair trial
system and the same is also seen in our procedural law. Fair trial is necessary to
protect the accused individual’s basic rights from unlawful and arbitrary
deprivation and it is also based on the principle of natural justice.
RIGHT TO CONSULT A LEGAL PRACTITIONER
The Supreme court upheld the right of consulting a legal practitioner by an accused
as a Constitutional right under Articles 21 and 22(1) of the Constitution of India.
Case Law: Janardhan Reddy v State of Hyderabad is an example.
The legal provisions for the same can be found in:
Sections 41(D), 50(3), 303 of CrPC and Article 22(1) of Constitution of India
RIGHTS TO FREE LEGAL AID
In India, this facility is provided to all poor accused inspite of the severity of the
crime they have committed. This is for the 3-tier justice system in totality at every
stage. This service is provided both for the trial and appeal as neither the Indian
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Constitution nor does the Legal Services Authorities Act makes any distinction
between them.
The legal provisions for the same can be found in:
Section 304 CrPC, Articles 21, 39(A) of Constitution of India
RIGHT TO BE EXAMINED BY A MEDICAL PRACTITIONER
This is an absolute necessity to put on record any mark or injuries or ascertain the
health of the accused when taken into custody and put it on record. Subsequently
this also works as check to ensure if there was any torture by the powers that be
during interrogation or during custody.
Case Law: Anil Lohande v State of Maharashtra
The legal provisions for the same can be found in:
Section 53 and 54 of CrPC
RIGHT OF THE ACCUSED TO PRODUCE EVIDENCE
Very important right to the proceedings of a fair trial.
The legal provisions for the same can be found in:
Section 243(1), 273 of CrPC
TopicII: Search Section (165 ) Cr.P.C
Section 165 in The Code Of Criminal Procedure, 1973
165. Search by police officer.
(1) Whenever an officer in charge of a police station or a police officer making an
investigation has reasonable grounds for believing that anything necessary for the
purposes of an investigation into any offence which he is authorised to investigate
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may be found in any place with the limits of the police station of which he is in
charge, or to which he
is attached, and that such thing cannot in his opinion be otherwise obtained without
undue delay, such officer may, after recording in writing the grounds of his belief
and specifying in such writing, so far as possible, the thing for which search is to
be made, search, or cause search to be made, for such thing in any place within the
limits of such station.
(2) A police officer proceeding under sub- section (1), shall, if practicable, conduct
the search in person.
(3) If he is unable to conduct the search in person, and there is no other person
competent to make the search present at the time, he may, after recording in
writing his reasons for so doing, require any officer subordinate to him to make the
search, and he shall deliver to such subordinate officer an order in writing,
specifying the place to be searched, and so far as possible, the thing for which
search is to be made; and such subordinate officer may thereupon search for such
thing in such place.
(4) The provisions of this Code as to search- warrants and the general provisions as
to searches contained in section 100 shall, so far as may be, apply to a search made
under this section.
(5) Copies of any record made under sub- section (1) or sub- section (3) shall
forthwith be sent to the nearest Magistrate empowered to take cognizance of the
offence, and the owner or occupier of the place searched shall, on application, be
furnished, free of cost, with a copy of the same by the Magistrate.
Search of a place without warrant
Section 165 prescribes procedure undertaken by a police officer to search a place
without a warrant. It states that whenever an officer in charge of a police station or
any police officer making an investigation has reasonable grounds to believe that
in the process of investigation, there are some things necessary for an offence,
which he is authorised to investigate within the local limits of his police station
without unnecessary delay, can search even without a search warrant. He is also
required to specify the reason for such a search, cause of search, etc. Section
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165(3) provides that where a police officer is unable to conduct the search in
person, and there is no other person competent to carry out the search at the time,
then he may after recording in writing his reasons for so doing, require any officer
subordinate to him to make the search. The senior authorizing for the same has to
give the subordinate officer an order in writing, specifying the place of search, the
reason for which the search is made and subsequent to this the subordinate may
thereupon search for such thing in such place. The copies made by the police
officer undertaking search shall be sent to the nearest Magistrate empowered to
take cognizance of the offense. On the application of the owner or occupier of the
place searched shall be furnished, free of cost with a copy of the same by the
Magistrate.
Search by a police officer during the investigation
The procedure adopted by a police officer during the search in an investigation is
provided in Section 165. Section 165(1) provides that whenever an officer in
charge of a police station or a police officer making an investigation in a particular
matter has reasonable grounds for believing that anything necessary for the
investigation into any offense on which he is authorized to investigate may be
found in any place within his local limits and that thing according to him be
otherwise obtained without unnecessary delay. Such officer may record the
grounds of his belief in writing and prescribing in such writing the thing for which
the search is made, or cause a search to be made with the local limits of his station.
Section 165(2) authorize the police officer to conduct the search in person. Section
165(3) states that if he is unable to conduct the search in person, he may after
recording in writing the reason for so doing authorize a person subordinate to him
to conduct search. Section 165(4) says that all the general conditions regarding the
search warrant will be applied to this section as contained in Section 100. Section
165(5) provides that copies of the record made in sub-section (1) and (2) should be
sent to the Magistrate who is empowered to take cognizance of the offence. The
owner or occupier of the premises can also, on the application, be provided with a
copy of the same that is present with the Magistrate, without any cost.
