Concept of Arrest Under The Code Of Criminal Procedure, 1973.

Introduction

This article discusses the Concept of Arrest Under The Code Of Criminal Procedure, 1973. Arrest means “the deprivation of a person of his liberty by a legal authority or at least by apparent legal authority”^[1]. For instance, when a police officer apprehends a pick-pocket, he is arresting the pick-pocket, but when a robber apprehends a person with a view to extracting ransom, he is not arresting the person but, illegally confining him. Moreover, it has to be noted that “every compulsion or physical restraint is not arrested but when the restraint is total and deprivation of liberty is complete, it amounts to arrest”[2].

In India, the Criminal Law reckons that every accused is entitled to a fair trial which shall be conducted in the presence of the accused[3]. Further, under Section 235 of the Code, if the accused is found guilty of the offence charged with, the court should hear the accused on sentence and then determine it. Thus, ensuring the presence of the accused during trial and judgment is the primary reason for the arrest.

History of Arrest

An arrest is an anachronism and the concept of arrest has existed throughout time and space. In England, during the 18^th century, the concept of police officers did not exist. In 1749, Magistrate Henry Fielding appointed six men to conduct arrest, search and seizure on his authority to effectuate criminal trials and provide assistance to the Magistrates. These men were the “first professional police service of England and came to be known as the Bow Street Runners”[4].

• Arrest by Private Persons

Prior to the establishment of the Bow Street Runners, the procedures of arrest were “in the hands of private persons and individuals with minute intervention from the State”[5]. Since the arrest and detention and production of arrested persons rested entirely in the hands of private entities, malicious arrests and corruption gained momentum. Therefore, to curb this menace, Judge Fielding decided to regulate their activities by legalising it through a proper authorised channel. Thus, the Bow Street Runners were created.

• The Bow Street Runners

The Bow Street Runners were initially a group of six men (later increased) who “worked out of Judge Fielding’s Office and Court No. 4 at Bow Street, London”[6]. Their work was not to patrol and ensure prevention of crime like modern police officers. They served writs issued by the court on its behalf and arrested alleged offenders on the authority of the court.

After the successful implementation of the Bow Street Runners, Judge Richard Ford of the same court introduced the Bow Street Horse Patrol in 1763. Ford acquired a grant of 600 Euros from the government to establish the Horse Patrol force to deal, specifically with highway robberies.

• Metropolitan Police Act, 1829

In 1829, the British Parliament enacted “the Metropolitan Police Act to establish the first official police force of London called the ‘Bobbies’ or ‘Peelers’ (after Sir Robert Peel who introduced the Act)”[7]. By 1839, the police force completely replaced the Bow Street Runners and Horse Patrols. These police officers worked under the supervision of two Commissioners who were the Justices of Peace.

Section 8 of the Act empowered the police officers to arrest “all loose, idle and disorderly Persons whom he shall find disturbing the public Peace, or whom he shall have just Cause to suspect of any evil Designs and all Persons whom he shall find between sunset and the Hour of Eight in the Forenoon lying in any Highway, Yard, or other Place, or loitering therein, and not giving a satisfactory account of themselves”[8]. The Act also provided for night police and removed the services provided by Parish watchmen.

Modern Concept of Arrest

The power to arrest is now vested upon designated police officials under the employment of the State through several legislations. In the United States, the offences are divided into Minor Crimes or infractions and Serious Crimes or felonies. In case of minor crimes, the offender is served with a citation to appear before the court and no arrest takes place. The arrest is allowed only for felonies and the person is kept in a pre-trial prison under the surveillance of the police. Further, in the United States, there is a clear difference between detention which is an informal interrogation or investigatory stop and arrest.

In the United Kingdom, the main legislation dealing with arrest powers and procedures is the Police and Criminal Evidence Act, 1984. An arrest is divided into ‘arrest with a warrant’ and ‘arrest without warrant’ and the Act provides situations when an arrest can be made without a warrant and when a warrant is vital to effect the arrest.

Concept of Arrest under Cr.P.C

• Meaning and Elements

In R.R. Chari v. State of Uttar Pradesh, the apex court defined arrest as “the act of being taken into custody to be formally charged with a crime” [9]. The court observed that in a Constitutional sense, it means the seizure of a person (body of a person).

In State of Punjab v. Ajaib Singh, the court observed that arrest is the “physical restraint put upon an abducted person in the process of recovering and taking that person into legal custody with or without any allegation or accusation of any actual or suspected commission of the offence” [10].

The elements necessary to constitute arrest were summarised by the Madras High Court in Roshan Beevi v. Joint Secy. To the Govt. of Tamil Nadu. The vital elements required to institute arrest are:

1. “There must be an intent to arrest under legal authority,
2. There must be seizure or detention of the person,
3. The person must be in the lawful custody of the arresting person and
4. The act of arrest must include the actual confining of the person and not mere oral declaration of arrest” [11].

• Purpose

The code contemplates arrest of an alleged offender under five circumstances:

1. “For securing the attendance of the accused at trial
2. For prevention of an apprehended offence or as a precautionary measure.
3. For obtaining the correct name and address of the person arrested.
4. For removing obstruction created to police.
5. For retaking a person escaped from custody”[12].

These circumstances are not restricted only to the Code of Criminal Procedure, but the purpose of arrest remains the same under every law. Also, it can be noticed that the Code allows arrest on the apprehension of a cognizable offence as well. In Rajesh Raut v. State of Maharashtra[13], for instance, it was held that where an arrestee has a design (preparation) to commit a cognizable offence affecting the peace and order in that place, his detention for certain days ordered by the Magistrate would be proper and justified.

Misuse of the Power of Arrest

Arrest, as averred earlier, is a restriction on the “right to personal liberty”[14]. Therefore, any violation of this right “must be by a procedure established by law which shall be fair and reasonable”[15]. In Kajal Dey v. the State of Assam, the court said that “what is fair and reasonable shall depend upon the circumstances of the case” [16].

Despite all the laid procedures and guidelines, misuse of the power of arrest and custodial violence is not novel in India. In People’s Union for Democratic Rights v. Police Commissioner, Delhi[17], the police officers arrested some poor people from the village and compelled them to do certain work at the police station. On asking for wages, these people were stripped and beaten up. Further, in Prem Shankar Shukla v. Delhi Administration[18], the petitioner moved the Supreme Court contending that he and certain other prisoners were forced to wear handcuffs during custody.

The frequent instances of police atrocities and custodial deaths prompted the apex court to pass judgments such as Nilabati Behera[19], Joginder Kumar[20] and Shyam Sunder Trivedi [21]which were later reviewed in D.K. Basu v. State of West Bengal[22]. From these judgments, the court enabled departmental enquiry against offending police officers, the establishment of committees to probe into matters of illegal arrest and detention and also allowed compensatory damages to the victim or his family from the personal income of the accused officers. However, these landmark judgments only serve as a precedent to decide future cases of similar nature but very less or negligible effect on the behaviour of the police has been seen.

Recently, in Ratilala Raghavjibhai v. State of Gujarat[23], police has come to the complainant’s house and said that her husband was involved in a theft incident and since he was not home they arrested her son and told her to inform her husband if he returns and only then will her son be allowed to go. These instances of meaningless misuse of power shake the entire concept of the arrest.

Conclusion

In a free society like ours, “law is quite zealous of the personal liberty of every individual and does not tolerate the detention of any person without legal sanction”[24]. The right of personal liberty is a basic human right recognised by the General Assembly of the United Nations in its Universal Declaration of Human Rights. This has also been prominently included in the Convention on the Civil and Political Rights to which India is now a party. Even the Indian Constitution recognises the right to personal liberty under Article 21 and also provides that it can be violated only by a fair and reasonable procedure established by law. Thus, personal liberty being the cornerstone of our social structure, the concept of arrest and legal provisions related to it have special significance.

References:-

1. V. Kelkar, Lectures on Criminal Procedure, (6^th ed. 2017).
2. N. Chandrashekaran Pillai, R.V. Kelkar’s Criminal Procedure, (6^th ed. 2018).
3. Nitya Ramakrishnan, In Custody: Law, Impunity and Prisoner Abuse in South Asia, (1^st 2013).
4. Gerald Newman, “Bow Street Runners, Britain in the Hanoverian Age, 1714–1837: an encyclopedia” 1997
5. M. Beattie, “The First English Detectives: the Bow Street Runners and the Policing of London, 1750–1840”, Oxford University Press, 2012.

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[1] Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure 101 (18^th ed. 2006).

[2] Kamakshya Prasad, How to Arrest, Prosecute, Defence, Acquit and Convict 32 (1^st ed. 2005).

[3] Code of Criminal Procedure, No. 2, Act of Parliament, §273, 1973 (India).

[4] Gerald Newman, “Bow Street Runners, Britain in the Hanoverian Age, 1714–1837: an encyclopedia” 1997.

[5] Ibid.

[6] J.M. Beattie, “The First English Detectives: the Bow Street Runners and the Policing of London, 1750–1840”, Oxford University Press, 2012.

[7] Newman, supra note 4.

[8] §8, Metropolitan Police Act, 1929.

[9] R.R. Chari v. State of Uttar Pradesh, AIR 1951 SC 207.

[10] State of Punjab v. Ajaib Singh, AIR 1953 SC 10.

[11] Roshan Beevi v. Joint Secy. To the Govt. of Tamil Nadu, 1984 Cri.L.J 134.

[12] R.V. Kelkar, Lectures on Criminal Procedure 24 – 25 (6^th ed. 2017).

[13] Rajesh Raut v. the State of Maharashtra, 2003 Cri.L.J 4174 (Bom).

[14] Article 21, Constitution of India.

[15] Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[16] Kajal Dey v. the State of Assam, 1989 Cri L.J 1209 (Gau).

[17] People’s Union for Democratic Rights v. Police Commissioner, Delhi, (1989) 4 SCC 730.

[18] Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526.

[19] Nilabati Behera v. the State of Orissa, (1993) 2 SCC 746.

[20] Joginder Kumar v. the State of U.P., (1994) 4 SCC 260.

[21] State of M.P. v. Shyam Sunder Trivedi, (1995) 4 SCC 262.

[22] D.K. Basu v. State of West Bengal, (1997) 6 SCC 642.

[23] Ratilala Raghavjibhai v. the State of Gujarat, Cr. Misc. Appn. No. 14649 of 2010.

[24] Nitya Ramakrishnan, In Custody: Law, Impunity and Prisoner Abuse in South Asia, (1^st ed. 2013).

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1.Power of the Police Officers to Search a Place with and without Warrant(Opens in a new browser tab)