The Meaning And Purpose Of Arrest Under Criminal Law

By | August 4, 2019
A Critical Analysis Of The Meaning And Purpose Of Arrest Under Criminal Law

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The Meaning And Purpose Of Arrest Under Criminal Law | Overview

ARREST – MEANING THEREOF

In our daily lives, we hear the term arrest in a different context and through a distinct medium. Nevertheless, the legal meaning and purpose of arrest and its implications are hardly known. This article, therefore, endeavours to explain the legal meaning of ‘arrest’ and the purpose for the introduction of arrest as a means to restrain a person under the Code of Criminal Procedure, 1973.

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. “When used in its ordinary and natural sense, the term arrest denotes the apprehension or restraint or the deprivation of one’s personal liberty”[1]. But to understand the legal etymology of the term, we must look into law lexicons and earlier judicial pronouncements on the subject.

Arrest in Law Lexicons

According to Black’s Law Dictionary, the term ‘arrest’ 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’.

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 in Judicial Pronouncements

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’. 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[5], 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.

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[6]. 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,
  4. The act of arrest must include the actual confining of the person and not a mere oral declaration of the arrest.

Therefore, abridging above explanations of arrest, it can be deduced that arrest, in relation to criminal procedure, “consists of taking into custody of another person, under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of an offence”[7].

ARREST AND CUSTODY

The terms ‘arrest’ and ‘custody’ are usually used as a substitute for one another. However, in Directorate of Enforcement v. Deepak Mahajan[8], Pandian J. speaking for the bench clearly stated that ‘arrest and custody are not synonymous. Custody follows the arrest and does not necessarily require an arrest to constitute custody’. Arrest, as already defined, means the formal restriction of movement of a person.

After arrest, the person is either taken to the police station or produced before the Magistrate whereby the Magistrate allows that person to be kept within the scrutiny of the police officer (usually in the police station) for interrogation or to prevent his escape from justice. This process of keeping the person in the police station is called custody. If the arrestee faces any threat at the police station, he may be remanded in district prisons under the supervision of the Magistrate. This is called ‘judicial custody’[9]. Now, it is not necessary that there must be arrest to constitute custody.

A person who directly approaches the Magistrate and confesses a crime or one who submits himself to the police or Magistrate can be kept under custody without any requirement of the arrest.

ARREST AND DETENTION

The difference between arrest and detention is petite and also difficult to determine. ‘Arrest’, as a concept is used under the Code and it provides a detailed procedure to be followed before and after an arrest. However, no definition or procedure for detention has been given by the Code. In simplest words, unless the arresting authority officially declares an act of restraining as ‘arrest’, it remains mere detention.

Let us assume, ‘A’ is a habitual thief of watches and steals in a specific area. There was a theft in that area and besides other things, three watches were stolen from the house of the victim. The police have reasonable suspicion on ‘A’ since he has been convicted on theft on several occasions and all included theft of watches. The police reach ‘A’s’ house and ask him to sit down and answer a few questions or takes him to the police station to interrogate. This is called detention. However, if the police officers have any evidence against ‘A’, they apprehend him, inform his family that he has been taken to the police station and prepares a memorandum to that effect, then it is an arrest.

Therefore, when the police have a ‘reasonable suspicion’ on a person based on a ‘probable cause’ but no evidence at all, it can detain a person for questioning. Such detention is often unofficial and the person must be released after the questions are answered[10].

PURPOSE OF ARREST

The arrest of person might be necessary under the following circumstances[11]:

1. For securing the attendance of the accused at Trial

When an individual is required to be tried by the court on the charge of certain offence(s) under any prevalent law, his presence before the court becomes indispensable. If the court has reason to believe that such attendance is not plausible to be ascertained by issuing a notice or serving requisite summons to him, probably his arrest and detention is the only efficacious method of procuring his presence at the trial. A court may issue a warrant of arrest against any person accused of a crime instead of a summons or in addition to a summons[12].

The power can be exercised in two situations[13]: (a) where the court believes that the person summoned has absconded or will fail to turn up; and (b) where the person has failed to appear before the court without reasonable cause. However, in a summons case, the court must issue a summon at the first instance and only when the accused fails to appear on service of summons, the court can issue a warrant[14].

2. As a preventive or precautionary measure

The Criminal Procedure Code empowers the police officers to take pre-emptive steps to prevent the commission of a cognizable offence. For instance, under Section 151, 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[15].

There may be other circumstances where it is necessary as a precautionary measure to arrest a person. For instance, under Section 110 read with Section 41(2), a habitual offender or an ex-convict may be arrested to maintain peace and order in a specific area.

3. For obtaining the correct name and address

Section 42 of the Code provides that “where a person, on being asked by a police officer, refuses to give his name and address, then under certain circumstances, it would be proper on the part of the police to arrest such a person with a view to ascertain his correct name and address”.

The provision of this section is applicable if either of the two essential prerequisites is satisfied. Firstly, the person either commits a non-cognizable offence in the accompaniment of a police officer or secondly, the person is accused of committing such offence in the presence of a police officer. However, “if the name and address are ascertained or otherwise known to the police officer, the person is to be released on his executing a bond” to appear before a Magistrate[16].

4. For removing obstruction to police

Section 41 (1) (e) states that any person who obstructs a police officer in the execution of his lawful duty would be and should be liable to be arrested then and thereby such a police officer”.

This provision is made to ensure the “effective discharge of police duties”. This is the provision that enables police officers to use force on people engaged in protests and strikes and arrest them without any justification. With respect to this provision, the law commission has also stated that it was inserted by the British in 1898 Code to allow the company to suppress the voice of people obstructing their peaceful operation and the provision must be relooked and narrowed down[17].

5. For retaking a person escaped from custody

Section 41(1) (e) is the residuary provision which provides that under any circumstance not mentioned in any other clauses of Section 41(1) if the presence of the arrested person in the court seems difficult, such person may be arrested. Thus, “a person who has escaped from lawful custody should be arrested forthwith by the police”.

One of the purposes of arrest is to arrest a person who has escaped or attempts to escape from the legal custody of the police or Magistrate. This Section applies only to lawful custody and not unlawful arrest. It means that if the arrest was illegal and in non-compliance to the procedure laid down under Section 46 of the Code, the arrestee has a right to private defence and s/he can escape from the custody exercising such right[18]. The power to arrest again arises if the escape is from lawful custody only.

CONCLUSION

Thus, the above enumerated are the circumstances in which the arrest of a person is essential or at least desirable. These are the basic purposes of arresting a person. However, the determination as to the existence of such circumstances and the consequent decision to arrest lies in the hands of the police officers and should be made fairly having due regard to the liberty of the individual and the interests of the society.


[1] Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure 93 (18th ed. 2006).

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

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

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

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

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

[7] Ratanlal, supra note 1.

[8] Directorate of Enforcement v. Deepak Mahajan,

[9] Ashok Dhamija, Law of Bail, Bonds, Arrest and Custody 103 (1st ed. 2008).

[10] 1 D.D. Basu, Code of Criminal Procedure, 1973 181 (6th ed. 2017).

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

[12] Code of Criminal Procedure, No. 2, Act of Parliament, §§87 and 204, 1973 (India).

[13] Ratanlal, supra note 1 at 140.

[14] Sagar Suri v. the State of Delhi, 2004 Cri.L.J 212 (Delhi).

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

[16] Gopal Naidu v. Emperor, (1922) 46 Mad 605, FB.

[17] Basu, supra note 10 at 183.

[18] M.P. Sharma v. Dist. Magistrate Delhi, AIR 1954 SC 300.


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