INTRODUCTION

Another crucial stage in the investigation of crimes is the arrest and custody of suspects. In critical circumstances, the accused’s prompt arrest is essential for a thorough investigation. Additionally, it discourages criminals from committing crimes and fosters a sense of tranquility and security among the populace and the government. Without an arrest, a charge sheet is not possible. The word “arrest” describes the act of taking someone into custody so they can face criminal charges. It comes from the French verb “arreter,” which meaning “to stop or stay” and denotes the confinement of a person. In other terms, it refers to the deprivation of a person’s liberty following their arrest by a legal authority.

The terms “arrest” and “custody” are not interchangeable. Custody exists in every arrest and cannot be avoided. Arrest involves taking possession of or touching a person’s body in an effort to restrain him, whereas custody involves submitting a person to the custody through words or deeds..

According to Cr.P.C, the police have the authority to detain a person in both cognizable and non-cognizable cases. Police can detain a person in a cognizable case without a warrant from a qualified magistrate. However, under Section 155 Cr.P.C, the police must first obtain a signed warrant of arrest from a qualified magistrate before they can make an arrest in a non-cognizable matter.

OBJECTIVES

Once you go though this unit, you should be able to:

• explain the circumstances under which the police can arrest a person;

• describe briefly as to the procedures to be followed by the police while making arrest;

• lay down the procedures to be complied with by the police after effecting arrest;

• enumerate the rights of a person arrested;

• set out the consequences that follow on the police of non-compliance with the provisions relating to arrest;

• briefly explain the ambit and scope of detention u/ss 57 and 167 CrPC;

• describe briefly the procedures to be followed by the police in search and seizure u/ss 165,166 and 166A of CrPC;

• lay down the procedures to be followed by the police during search and seizure u/s 100 of CrPC; and

• explain the procedures to be followed by the police in disposal of the seized property.

CIRCUMSTANCES UNDER WHICH A PERSON CAN BE ARRESTED

A person may be detained in a number of situations. The police are a state apparatus with the authority to detain people who have broken the law or committed crimes. According to Section 41 of the Criminal Procedure Code, a person may be detained without a warrant from a magistrate in a number of situations, including: when a person has committed or has been accused of committing a non-cognizable offense in the presence of a law enforcement officer and refuses to give his or her true name or address; any person concerned or reasonably suspected to be concerned in any act committed at any place outside India, any person belong to one or more of the categories of persons specified in Section 109 or 110 of C.P.C and so on.

HOW ARREST IS MADE

The manner in which an arrest is to be made is outlined in Section 46(1). Regardless of whether the arrest will be made with or without a warrant, it is required that the police officer or other person making the arrest actually touches or confines the subject’s body unless there is verbal or physical submission to custody. Oral declarations of arrest, on the other hand, that do not involve physical contact or submitting to custody do not constitute arrest. The police are authorized to make an arrest under the following circumstances under the Code of Criminal Procedure:

(1) Use of force by the Police while making Arrest: – In accordance with Section 46(2) of the Cr.P.C, the police may use reasonable force to make an arrest if the target of the arrest resists or tries to flee. However, the ability to use the necessary force to make an arrest does not include the ability to kill someone who has not been charged with a crime carrying a death penalty or a life sentence under Section 46(3) of the Criminal Procedure Code. According to Section 49 of the Cr.P.C, the apprehended person may not be restrained any more than is required to stop his escape.

(2) The police should not handcuff Accuse in normal circumstances: – The investigating police are restrained from handcuffing the arrested persons without the prior permission from the concerned magistrate.

3) The Police power to search a place: – A home’s occupant has a legal obligation to provide the police and anyone acting on an arrest warrant with all the facilities they need to search the home and make arrests under Section 47 of the Criminal Procedure Code.

(4) The police power to pursue Offenders any place in India: – In accordance with Section 48 of the CrPC, a police officer may pursue a person into any location in India in order to arrest them without a warrant. This clause makes it easier for the police to start and finish their investigation of a case quickly and successfully..

5) The police power to obtain assistance: -Any person that a police officer has the legal right to arrest in accordance with Section 37 of the Cr.P.C may be asked to help him take an additional person into custody or stop that person from escaping. The individual who has been asked to help has a legal duty to do so, and any willful omission on his side to do so is punished under Section 187 I.P.C.

(6) Power to require Subordinate Officer to arrest: – An officer- in- charge of a police station, or any police officer holding investigation under Chapter XII of Cr.P.C, can require any subordinate officer to arrest without a warrant (other than in his presence) any person who may lawfully be arrested without a warrant, and shall deliver to the officer so required an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made under Section 55 of Cr.P.C.

(7) Power to re-arrest escapee: -A person in lawful custody who escapes or is rescued is subject to immediate pursuit and arrest by the person from whose custody he escaped or was rescued in any location in India, according to Section 60 of the Criminal Procedure Code. In terms of employing force to make an arrest, searching a location, etc., the person making the re-arrest shall have the same rights and obligations as described above.

AFTER-ARREST PROCEDURES

(1) Search of arrested person: -The police officer making the arrest (or the person to whom the arrested person is turned over after being arrested by a private person) may search the person in question and place all items, other than necessary wearing apparel, found on him in safe custody whenever the arrested person cannot legally be admitted to bail or is unable to provide bail. Such a person shall be provided with a receipt listing the items that were so seized. The police’s refusal to issue a recovery memo is an irregularity, yet it was determined that the trial was not invalidated. If the person being detained is a woman, Section 51 of the Criminal Procedure Code requires that another woman conduct the search while strictly adhering to her decency.

(2) Seizure of offensive weapons: -Any offensive weapons that the detained person has on him or her may be taken by the police officer or other person conducting the arrest, and all weapons thus taken must be delivered to the court or officer that the arrested person must appear before in accordance with Section 52 of the Cr.P.C.

(3) Medical examination of accused:- A registered medical practitioner could conduct the examination at the request of a police officer not below the rank of a sub-inspector if the crime for which the arrested person is charged is of such a nature and is alleged to have been committed in such circumstances that the evidence as to the commission of the crime would be provided by the medical examination of such an arrested person. Any force that is deemed to be reasonably required for the purposes of the medical examination may also be employed.

If the subject of the examination is a woman, a registered lady medical practitioner must do the examination or supervise it, in accordance with Section 53 of the Cr.P.C. As long as the arrested person is not forced “to be a witness” against themselves, the medical examination has been deemed to not violate Article 20(3) of the Constitution. The inspection is not solely limited to what can be seen on the body. Depending on the circumstances, it can involve testing urine, sputum, blood, or semen.

The discomfort, pain, or injury that the examinee experiences during the examination is justified under Section 53 of the Criminal Procedure Code if the examination procedure is reasonable. The Code of Criminal Procedure (Amendment) Act of 2005, which established the procedures for conducting medical examinations, added sections 53-A and 54(2) and provided a detailed description of what “examination” and “registered medical practitioner” mean..

(4) Reports of arrest to be sent to District Magistrate: – According to Section 58 of the Criminal Procedure Code, every police officer in charge of a police station is required to report to the District Magistrate all cases of people who have been arrested without a warrant within the station’s boundaries.

(5) Person arrested not to be discharged except on Bond or Bail: – A person who has been detained by a police officer is not eligible for release unless he posts his own bond, obtains bail, or receives a special order from a magistrate under Section 59 of the Criminal Procedure Code.

RIGHTS OF ARRESTED PERSON

Several basic practices regarding the rights of the arrested individual have been established by the Code of Criminal Procedure, the Indian Constitution, different Supreme Court rulings, and other International Human Rights Covenants and Conventions. These rights are enforceable at various stages of an arrest, and a police officer who violates them faces harsh disciplinary and criminal consequences.

(1) Right to be informed of the grounds for arrest: – Whether an arrest is made with or without a warrant, the person making the arrest must immediately inform the person being detained of the reason(s) for the arrest in accordance with Section 50 Cr.P.C. The Constitution’s Article 22(1) recognizes this as a valuable right of the individual who has been arrested. A person who has been arrested benefits in many ways from timely knowledge about the reason for the arrest. He has a chance to clear up any misunderstandings, errors, or misperceptions the arresting authority may have had. It also gives him the opportunity to quickly set up other aspects of his defense, such as applying for bail or a petition of habeas corpus.

(2) Right to be informed of right to Bail: – According to Section 50(2) of the Criminal Procedure Code, every police officer who unlawfully detains a person for any reason other than an offense for which bail is not permitted is required to advise the detained person of his right to be freed on bail and that he may arrange for sureties on his behalf. Only when he is unable to secure sureties may he be released without posting bail.

(3) Right to be produced before a Magistrate without delay: – According to Sections 56 and 76 of the Cr.P.C, the person making the arrest is required, without undue delay and subject to the provisions regarding bail, to present the arrested person before the magistrate or officer-in-charge of a police station with jurisdiction over the case. This is true regardless of whether the arrest was made with or without a warrant.

(4) Right to consult a Legal Practitioner: -According to Article 22(1) and Section 303 of the Cr.P.C, any individual who has been arrested has the legal right to consult with a lawyer of his choosing. This right is recognized by both the Constitution and the relevant provisions of the Cr.P.C. The moment of arrest is the start of the right. Although the police officer may be there, he cannot hear the lawyer’s consultation.

(5) Right of an arrested Indigent Person to free legal aid and to be informed about it: –

The Supreme Court held in Khatri v. State of Bihar, (1981) 1 SCC 627, that the State has a constitutional obligation (implicit in Article 21) to provide free legal representation to an indigent accused person. The Supreme Court further held that this constitutional obligation to provide legal representation does not only arise when the trial begins but also when the accused is first brought before the magistrate and when he is occasionally remanded. However, unless he is immediately and properly informed about it by the court when he is brought before it, the constitutional right of an accused person who is impoverished to receive free legal representation may turn out to be illusory. The Supreme Court has therefore cast a duty on all Magistrates and courts to inform the indigent accused about his right to get free legal aid.

(6) Right to be examined by a Medical practitioner: –

Any arrested person who claims that the examination of his body will provide evidence that will disprove the commission of any crime by him or that will establish the commission of any crime against his body by another person must request that the Magistrate order the examination of his body by a registered medical professional at the time when he is brought before a magistrate or at any other time during the period of his detention in custody. However, the Magistrate need not give such a direction if he considers that the request for medical examination has been made by the arrested person for the purpose of vexation or delay or for defeating the ends of justice under Section 54 Cr.P.C.