Our Criminal Lawyers have discussed below the law relating to “Arrest” as it is applied by Punjab and Haryana High Court at Chandigarh.
A person may get arrested when he/she does anything which is against the law. In general sense, “arrest” refers to restraint or fear or deprivation of one’s personal liberty. Chapter V, Section 41-60 of Criminal Procedure Code, 1973 pertains to arrest of a person. The reason for arresting an alleged offender is to make sure that he doesn’t tamper with the evidence and to ensure his presence at trial for which he has been charged.
Who can make an arrest as per the law?
In India, all law enforcement officers are empowered to make an arrest- namely police officers, police constables, magistrates etc. no matter they are on or off duty in most cases as per the legal provisions permitting such an arrest.
Can anyone besides police make an arrest?
A proclaimed offender and any person who commits a non-bailable and cognizable offence can be arrested by any private individual. Any person who is witness to a person committing a criminal offence and he/she has a valid reason to believe that an offence has been committed by the person, can make an arrest. As soon as the arrest is made, the person so arrested is to be taken to a police officer or a judge who is required by law to take him/her into custody.
What is the procedure of arrest?
An arrest can be made with or without a warrant. Upon issuance of an arrest warrant, arrest can be made anytime. There is no time constraint for an arrest to be made. In case the person to be arrested refuses to submit to the custody through words or action then his body can be touched or confined by the person making the arrest. The person making the arrest is authorised to use all possible means if the person to be arrested tries to evade the arrest or resists it. It is a crime to resist an arrest and that person can be charged for misdemeanor along with the crime for which he has been charged.
According to Section 75 of the Cr.P.C. arrest warrant should be in written form, duly signed by the presiding officer and should have the seal of the court. The name, address of the accused and offence under which arrest is to be made should by categorically mentioned in the warrant. The warrant is rendered illegal if any of this information is missing.
In case the name of the person to be arrested unknown then a “John Doe” warrant will be issued bearing that person’s description on it. If the police are carrying an arrest warrant, the person must be allowed to see it. If the police aren’t carrying the warrant, the person should be allowed to see it at the earliest.
If someone’s name is mentioned in the F.I.R., a preliminary investigation must be conducted by the police before arresting such a person.
There is no need to handcuff the person to be arrested in case the police are executing an arrest warrant issued by the magistrate. If the order from the magistrate explicitly states so he may be handcuffed. Further, the person so arrested ought not to be put through any physical violence or inconvenience unless he tries to escape and it is required.
The police officer making the arrest must be wearing a clear, visible identification of his name. A memo of arrest should be prepared at the time of arrest and be attested by one witness at least and the person so arrested should countersign it.
Can an arrest be made without an arrest warrant?
As per Section 41 of Cr.P.C., police are empowered to arrest without a warrant if the situation so demands. If the police believe that a quick action is required to save the evidence from being destroyed or tampered with, or to prevent the person from escaping or endangering someone’s life or seriously damaging property then an arrest can be made without a warrant.
Rights of the arrested person
Whether the arrested person is an Indian citizen or a non-citizen, he/she has certain rights when arrested as conferred by the Constitution of India.
1. The arrested person has the right to inform his/ her family member, friend or relative as given under Section- 50 of Cr.P.C.
2.It is not allowed to detain an arrested person for more than 24 hours without presenting him/her before a magistrate. This is done to safeguard from illegal and unlawful arrests.
3. The arrested person has the right to be medically examined.
4. The arrested person has the right to remain silent- He/she is not required to speak or confess anything in front of the police. Anything said can be taken against him/her and hence he/she has the right to remain silent in front of the police.
5. The arrested person has a right to have a lawyer when he/she is being questioned. In case a lawyer can’t be afforded, a lawyer will be appointed to the concerned individual by the government.
6. Right to be informed about the charges- According to the Constitution of India and Section- 50 of Cr.P.C., the person accused of an offence must be informed about the offence and also if it is a bailable or non-bailable offence. Bailable offences are the ones in which the accused has the right to get a bail, on the other hand in case of non-bailable offences granting a bail is the discretion of the court.
7. A lawyer must be contacted at the earliest if the arrest is made for a serious crime because a lawyer better understands what should be said before the police. The lawyer will also be able to help the arrested person in getting bail.
Special rules while arresting a female-suspect
Presence of a lady constable is mandatory while arresting a female. Moreover no female can be arrested before sunrise and after sunset. Exceptions can be there only when it is extremely urgent to arrest the person.