Arresting Rules in India

When a criminal offence is committed and it is reported to the police via FIR, then the police, depending upon the degree of crime and sensitivity of the issue, police either first arrest the accused (if accused did not escape) or first investigate the matter and then based on findings either arrest or decide not to arrest.

However, in the apprehension of any further criminal act or tampering of evidences or that the accused is known, then a person is arrested first and kept in police custody (remind) after getting the magistrate’s permission.

What does Arrest mean?

Arrest means to detain or to take a person in custody when such a person is accused of doing any illegal act, or there is apprehension that the person might commit a crime.

Types of Arrest

Following are the two types of arrest −

• Arrest with a warrant signed by the Magistrate

• Arrest without a warrant (only in case of higher degree crime, such as murder, rape, docility, etc.)

Who may Arrest?

Arrest is generally made by the police officer, but even a private person may arrest. It has been provided under Section 43 of the Code of Criminal Procedure (CrPC). This is done when any person commits a non-bailable and cognizable offence in the presence of a private person or is a proclaimed offender, then that private person may arrest him.

But, after arresting, the private person needs to take that person to the police station or call the police and hand over that person to the police.

Furthermore, an executive or Judicial Magistrate may also arrest an offender personally or order any person to arrest him. It has been provided under Section 44 of the CrPC.

Arrest by Police

Generally, a police requires a warrant to arrest any person if he has committed a non-cognizable offence.

The police may arrest any person without a warrant in the following circumstances −

• If any person commits a cognizable offence in the presence of any police officer

• If there is a reasonable complaint, suspicion or information that any person has committed an offence punishable with or more than seven years of imprisonment and the police is satisfied that such person may commit any offence or tamper the investigation or might escape.

• When the person is a proclaimed offender

• Person who possesses a stolen property

• If any person obstructs the police to perform his duty or escapes or tries to escape from lawful custody

• A person suspected to be a deserter of the Armed Forces of the Union

• When a reasonable suspicion or information has been received that the person has committed a crime outside India which if committed in India would be punishable, and extradition treaty for the same exists

• The person is a released convict who breaks the restrictions imposed on him by the Court.

What is the Procedure of an Arrest?

Arrest is made either oral or by action, submitting oneself to custody. If not, then the police officer shall actually touch or confine that person. In the case of a female offender, only a female police officer can arrest her.

Rights of the Accused During an Arrest

The rights of an accused during an arrest are as follows −

• Arrested person should be informed about the charged and the reason of being detained, before detaining him.

• He shall be given the right to consult a legal practitioner so that he could be defended.

• Every detained person should be produced before the nearest within twenty-four hours of detention. And no detention shall be done beyond such period without the authority of the Magistrate.

• The arrested person has the right to meet an advocate of his choice during investigation.

• A person shall not be subjected to more restraint than that is necessary.This includes protection against handcuffing as decided in the case of Prem Shankar Shukla v. Delhi Administration. It was held that the accused shall be handcuffed when there is no other reasonable way of preventing his escape.

  It shall also include protection from solitary confinement as decided in the case of Sunil Batra v. Delhi Administration. It was held that solitary confinement shall be inflicted only after following fair procedure lest it shall be violative of Article 21.

• When the person is arrested without warrant and the case is not a non-bailable case, then he is entitled to be released on bail.

• When the arrest is being made by the police officer or any other person, it is his duty to inform the nominated person of the arrested about the particulars of the arrest.

• The arrested person should be informed about all the right he possesses after being arrested. And such should be entered into the police records that the arrested person has been informed.

• Whenever a person is arrested he shall be medically examined by a practitioner appointed by the Central or the State Government.

  If the arrested person is a female, then only a female practitioner shall practitioner shall examine her.

• The health and safety of the accused in custody has to be taken care of, by the person having his custody.

• No women shall be arrested after sunset and before sunrise. Only in exceptional cases, with the prior permission of the Judicial Magistrate of First Class a female police officer can arrest her.

• The arrest shall be made strictly according the provisions of the CrPC.

• The arrested person shall be dealt with in accordance with the provisions which were in existence at the time of commission of offence and not before or after it. This is known as protection from ex post facto laws.

• The search of an arrested person before sending them to prison shall be done and all the articles received from the arrested person shall be kept safely. The search of a female arrested person shall be done with decency and by a female officer only.

• The arrested person has the right to free legal aid.

Result of Resistance to Arrest

If a person resists his arrest, then the police may use all necessary means to arrest him. Moreover, if that person is charged with an offence punishable by death or life imprisonment, then the police office can also cause his death.

Conclusion

The rights of the arrested person on the basis of the rules, which are to be followed during arrest. These are also the duties of the police officer. In no case, the rules overpower the police officer or make the arrested person vulnerable. However, in case of illegal arrest or detention, a writ of habeas corpus can be filed in the High Court or the Supreme Court.

Frequently Asked Questions

Q1. Is handcuffing permissible in India?

Ans. Yes, but only in exceptional circumstances.

Q2. Can a male police officer arrest a female accused?

Ans. No, only a female officer can arrest a female accused.