A Critical Analysis of the Manner of Arrest by Police Officers

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A Critical Analysis of the Manner of Arrest by Police Officers | Overview

• Introduction
• Arrest How Made?
• Arrest how made (Section 46)
• Scope of the Provision
• Actual Contact – Clause (1)
• All Means – Clause (2)
• An exception to “All Means” – Clause (3)
• Special Provision for Women – Clause (4)

Introduction

This essay discusses the manner of arrest by a police officer.The Code of Criminal Procedure, 1973 vests carte blanche powers upon police officers to arrest a person provided the manner or method of arrest under Cr.P.C is duly conformed to.

The word ‘arrest’ has not been defined in the Code nor in any other substantive or procedural laws. Thus, in the absence of such definition in the laws, the external aids to interpretation are most desirable assistance. Ratanlal, in his commentary, defines it as “the apprehension or restraint or the deprivation of one’s personal liberty”^[1]. However, to understand the legal etymology of the term, we must look into law lexicons and earlier judicial pronouncements on the subject.

According to Black’s Law Dictionary, the term means “to keep a person in lawful custody. A warrant, crime, or statute can authorize this”[2]. Ramanatha Aiyar defines ‘arrest’ as “a restraint of a man’s person, obliging him to be obedient to the law”[3]. In criminal cases, an arrest is often substituted by ‘apprehension’.

In R.R. Chari v. State of Uttar Pradesh[4], the apex court defined arrest as the act of being taken into custody to be formally charged with a crime. Thus, arrest, in simple terms, means stopping a person at his place and restraining his movement and detaining him with valid legal authority. An arrest can be made to prevent a crime or after a crime has been committed, if a suspect is known.

Arrest How Made?

The Code of Criminal Procedure, 1973 empowers police officers, Magistrates and private citizens to effectuate the arrest of a person for any purpose necessary for the conduction of an investigation, inquiry or trial. The circumstances in which such police officers, magistrates or private citizens are authorized to arrest have been mentioned in Section 41 to 44 of the Code while the manner of arrest of such arrested persons is provided under Section 46. The provision reads as follows:

Arrest how made (Section 46)

1. In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action.
2. If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or another person may use all means necessary to effect the arrest.
3. Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
4. Save in exceptional circumstances, no women shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

Scope of the Provision

The provision depicts the manner in which arrests are required to be conducted by the competent authority. The word ‘arrest’, in general, connotes a circumstance of being under the surveillance of any authority such that the movement of the person arrested is restricted to a specific area. When used in a legal sense with respect to the procedure connected with criminal offences, the word denotes the apprehension by a person in authority, taking into custody and keeping the person in detention under legal authority[5].

The section applies to arrest and not specifically to custody. All arrest involves taking someone into custody but, however, vice versa is not true[6].

In Kultej Singh v. Circle Inspector of Police[7], the observed that restriction physical liberty needs not to be absolute. If the movement of the detenu is restricted to the precincts of the police station, it shall be sufficient to amount to arrest. Further, in Md. Nazim v. State[8], it was observed that when the court has refused to interfere with the investigation, in normal course it should not interfere with the power of the police to arrest a particular person.

Actual Contact – Clause (1)

Arrest, being a restraint on the liberty of a person, it is vital that the arresting authority makes a contact or actually touches the body of the arrestee unless the arrestee is willing to voluntarily submit himself to justice. In Harmohanlal v. Emperor, the court observed that mere declaration by the police that the person is under arrest does not amount to actual arrest unless he is actually touched and contacted with the intention to take him into custody[9]. Also, “mere utterance of words or gestures or flickering of eyes does not amount to arrest”[10].

As aforementioned, the arrestee may submit himself to the police voluntarily and such submission to custody may be by express words or may be indicated by conduct[11]. Now, if a person who is the offender approaches the police and informs that he has committed an offence and confesses his guilt, it shall amount to submission.[12] Submission, in common parlance, is what we understand as surrender to the police.

In Thaniel Victor v. State, the court held that the essential elements to constitute arrest under this section are “(i) there must be an intent to arrest under the authority, (ii) accompanied by a seizure or detention of the person in the manner known to law and (iii) the procedure must be understood by the arrested person” [13].

All Means – Clause (2)

In case there is “a forcible resistance to or attempt to evade arrest, the person attempting to make an arrest may use all necessary means for the same”[14]. However, the means used by the authority to subject the person to arrest should be proportional to need. The test to determine whether such force or impetus applied the authority was necessary for a given circumstance “would depend on whether a reasonable person having no intention to cause any serious injury to the other would have used to effect his arrest”[15].

In Nazir Mohammad v. Kasturchand Gomaji Co., the court averred that the words “all means are very wide and include the taking of the assistance from others in effecting the arrest” [16]. Moreover, resistance or obstruction to a lawful arrest has been made “punishable by the Indian Penal Code, 1860”[17] and thereby creating a legal obligation to cooperate during the arrest.

An exception to “All Means” – Clause (3)

Contrary to the abovementioned clause, Clause (3) of Section 46 enjoins in clear terms that though the persons making arrest can use all necessary means for the purpose, “they have not been given any right to cause the death of a person who is not accused of an offence punishable with death or imprisonment for life”[18].

Again Section 49 provides that “the person arrested shall not be subjected to more restraint than is necessary to prevent his escape”[19]. In Karam Singh[20], where the police party went with the intention to disperse and arrest members of an unlawful assembly and, in the process, open fired at such assembly causing the death of an innocent person, the court held that protection cannot be claimed under Section 46 by such police officers.

Special Provision for Women – Clause (4)

A new sub-section or clause was added to the earlier Section 46 by the 2005 Criminal Law Amendment Act in the form of clause (4). The provision came into force on June 23, 2006[21]. Section 46 (4) prohibits the arrest of a woman after sunset and before sunrise except in unavoidable circumstances. After a plethora of judgments produced by the courts for the protection of women, this provision was added by the Parliament.

In case of any unavoidable circumstances, the woman police officer must obtain prior permission from the Judicial Magistrate First Class after submitting a written report as to the need for such late arrest. In the recent case of Kavita Manikikar v. CBI[22], the court held that non-adherence of Section 46 (4) will render the arrest illegal and the officials who were responsible for the violation of Section 46(4) of the Criminal Procedure Code, for arresting the accused after sunset, will be liable for disciplinary proceedings.

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

[2] Bryan A. Garner, Black’s Law Dictionary 115 (10^th ed. 2014).

[3] P Ramanatha Aiyar, Concise Law Dictionary 87 (5^th ed. 2014).

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

[5] Ratanlal, supra note 1.

[6] Ibid.

[7] Kultej Singh v. Circle Inspector of Police, 1992 Cri. L.J 1173 (Kant).

[8] Md. Nazim v. State, 1998 Cri. L.J 1089 (All).

[9] Harmohanlal v. Emperor, (1929) 30 Cri. L.J 128; Aludomal v. Emperor, (1916) 17 Cri. L.J 87.

[10] Roshan Beevi v. Joint Secy., Government of Tamil Nadu, 1984 Cri. L.J. 134 (Mad).

[11] K.N. Chandrasekharan Pillai, R.V. Kelkar’s Criminal Procedure 73 (6^th ed. 2014).

[12] Ibid.

[13] Thaniel Victor v. State, 1991 Cri. L.J 2416 (Mad).

[14] §46, Cr.P.C, 1973.

[15] Pillai, supra note 11.

[16] Nazir Mohammad v. Kasturchand Gomaji Co., AIR 1951 Mys 57.

[17] Indian Penal Code, No. 45, Act of Parliament, §§224, 225 and 225B, 1860.

[18] Karam Singh v. Haradayal Singh, 1979 Cri. L.J 1211 (P&H).

[19] G.L. Gupta v. R.K. Sharma, AIR 2000 SC 3632.

[20] Supra note 16.

[21] Ratanlal, supra note 1 at 102.

[22] Kavita Manikikar v. CBI, 2018 SCC Online Bom 1095.

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