Arrest Under Criminal Law: Who, When, Why And How?

'In every arrest there is a custody, but not vice versa. Custody may amount to arrest, but not under all circumstances.'[1] The word 'arrest' is terrifying for a layperson, but for lawyers it is just a legal connotation of forcible restraint. 'Arrest' is not defined under CrPC or any other Act, but the dictionary meaning of arrest is: 'The taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge.'[2] It is also known as forcible restraint, where liberty to move is curtailed. Legal Provisions of Arrest of Persons prescribed under Chapter-V of the CrPC from S.41 to 60. However, FAQs (frequently ask questions) are: When Police can arrest? Why Police should arrest? How Police could arrest? Time, Reasons and modalities or method of arrest are always depending upon facts and circumstances of each case. Nonetheless, we try to examine it in an order given under the Code. Who, When and Why Police can arrest? It is pertinent to note that Police can arrest only in cognizable offences[3] (which are somewhat serious in nature) no arrest can be made in non-cognizable offences[4] (which are less serious and mostly private wrongs e.g. defamation, dishonor of cheque etc.) S.41 of the CrPC commends: When police may arrest without warrant (a document issued by a legal official authorizing the Police to make an arrest). Sub-section (1)(a) says: 'who commits, in the presence of a police officer, a cognizable offence'. However, S.41(2) specifies that: '… no person concerned in a non-cognizable offence … , shall be arrested except under a warrant or order of a Magistrate.' But, sub-section (1)(b) is qualified and prescribes certain conditions for arrest, more particularly, if cognizable offence is punishable with imprisonment for a term – less than seven years or may extend to seven years. In this section, three situations have been indicated before making an arrest, namely: Against whom a reasonable complaint has been made, orCredible information has been received, orA reasonable suspicion exists; If the above circumstances are present, then also, to justify the arrest it is necessary to follow conditions as mentioned below; (any one of them) must be satisfied: (ii)(a) to prevent such person from committing any further offence; (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to police officer (e) as unless such person is arrested, his presence in the Court whenever required cannot ensured. Thus, any of the above conditions have been fulfilled, Police can make an arrest, and this, of course, will be applicable for the offence punishable up to 7 years. Besides, the police is required to record the reasons in writing for making such arrest. S.41-A further says, in such offences, the Police have to issue a notice directing the person against whom reasonable complaint is made or credible information is received … to appear before it. However, in case of woman, the police officer shall not touch the … woman for making her arrest, unless the police officer is a female and the circumstances require … It is further clarified in sub-section-(3) that: 'Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence…' Besides, to avoid arbitrary arrest and just to check on the powers of police to arrest, there is also a statutory provision u/s.41-B that 'every police officer while making an arrest shall – bear an accurate, visible and clear identification of his name, will prepare a memorandum of arrest, attested by a witness from arrestee's family or a respectable member of the locality, where the arrest is made.' It is now also permitted that arrestee shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.[5] However, despite above provisions, still Police is having an upper hand, as wide discretionary powers have been given to police e.g. if the arrest is required to be made for the purpose of 'proper investigation', what is proper and what is improper, only Police can say or determine, same is the case with other wordings of further provisions of arrest … Now, the most important aspect is the of mode or manner of arrest: How Arrest can be made? S.46 (1) of the CrPC says: " In making arrest the police officer … shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by...

Arrest Under Criminal Law: Who, When, Why And How?

Kashyap Joshi

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