Fair trial requires that the trial proceedings are conducted in the presence of the accused and that he is given a fair chance to defend himself. Consequently, the provisions regarding the issue of summons, or of a warrant of arrest or arrest without warrant are all aimed at ensuring the presence of accused at his trial without unreasonably depriving him of his liberty.
Arrest means the apprehension of a person by legal authority resulting in deprivation of his liberty. The Code contemplates two types of arrests:
- Arrest made in pursuance of a warrant issued by a Magistrate; and
- Arrest made without such warrant but made in accordance with some legal provision permitting such arrest.
Cases in which arrest can be made without a warrant
Section 41 enumerates different categories of cases in which a police officer may arrest a person without an order from a Magistrate and without a warrant. These include:
(a) who has been concerned in any cognizable offence or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or
(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of housebreaking; or
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who being a released convict, commits a breach of any rule, relating to notification of residence or change of or absence from residence; or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other causes for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. (Section 41)
Arrest on refusal to give name and residence
If any person who is accused of committing a non-cognizable offence does not give his name, residence or gives a name and residence which the police officer feels to be false, he may be taken into custody. However, such person cannot be detained beyond 24 hours if his true name and address cannot be ascertained or fails to execute a bond or furnish sufficient sureties. In that event, he shall be forwarded to the nearest Magistrate having jurisdiction. (Section 42)
Arrest by a private person
A private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence or who is a proclaimed offender (Section 43). This right of arrest arises under the Common Law which applies to India (Ramaswamy Aiyar (1921) 44 Mad. 913).
Arrest by Magistrate
Under Section 44 clause (1), the Magistrate has been given the power to arrest a person who has committed an offence in his presence and also commit him to custody. Under in clause 2, the Magistrate has the power to arrest a person for which he is competent and has also been authorized to issue a warrant. However, Section 45 protects members of Armed Forces from the arrest where they do something in the discharge of their official duties. They could be arrested only after obtaining the consent of the Central Government.
Arrest how made
Section 46 sets out the manner in which an arrest is to be made. The Section authorizes a police officer or other person making an arrest to actually touch or confine the body of the person to be arrested and such police officer or other people may use all necessary means to effect the arrest if there is forcible resistance. The Section does not give a right to cause the death of a person who is not accused of an offence punishable with death sentence or life imprisonment.
The word “arrest” when used in its ordinary and natural sense means the apprehension or restraint or the deprivation of one’s personal liberty to go where he pleases. The word “arrest” 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 and preventing the commission of a criminal offence.
Other important provisions
- Section 47 is an enabling provision and is to be used by the police officer with regard to exigencies of a situation.
- Section 48 authorizes a police officer to pursue the offender into any place in India for the purpose of effecting his arrest without warrant. Ordinarily, a police officer is not at liberty to go outside India and to arrest an offender without a warrant, but if he can arrest an offender without warrant who escapes into any place in India, he can be pursued and arrested by him without a warrant. (See also Section 60)
- Persons arrested are to be taken before the Magistrate or officer-in-charge of a police station without unnecessary delay and subject to the provisions relating to bail, Article 22(2) of the Constitution of India also provides for producing the arrested person before the Magistrate within 24 hours.
- When a person is arrested under a warrant, Section 76 becomes applicable, and when he is arrested without a warrant, he can be kept in custody for a period not exceeding 24 hours, and before the expiry of that period he is to be produced before the nearest Magistrate, who can under Section 167 order his detention for a term not exceeding 15 days, or he can be taken to a Magistrate, under whose jurisdiction he is to be tried, and such Magistrate can remand him to custody for a term which may exceed 15 days but not more than 60 days.
- Officers-in-charge of the concerned police stations shall report to the Magistrate the cases of all persons arrested without warrant, within the limits of their respective police stations whether such persons have been admitted to bail or otherwise. (Section 58)
A person arrested by a police officer shall be discharged only on his own bond or on bail or under the special order of a Magistrate, (Section 59). If a person in lawful custody escapes or is rescued, the person, from whose custody he escaped or was rescued, is empowered to pursue and arrest him in any place in India and although the person making such arrest is not acting under a warrant and is not a police officer having authority to arrest, nevertheless, the provisions of Section 47 are applicable which stipulates provisions relating to search of a place entered by the person sought to be arrested.
By – Wakeman Neutron
- R.V. Kelkars Criminal Procedure, Sixth Edition 2014