ARREST, PART 2: Duties of the police officer,and Rights of the arrested person, CODE OF CRIMINAL PROCEDURE, 1973

DUTIES OF THE POLICE OFFICER

SECTION 41 A: NOTICE OF APPEARANCE BEFORE POLICE OFFICER

(1)SITUATION:

Where the arrest of a person not required under section 41(1).

CONSEQUENCES:

  • Police officer shall issue a notice,
  • directing person, against whom there has been:
    • reasonable complaint, or
    • credible information, or
    • reasonable suspicion,
  • regarding committing, a cognizable offence,
  • to appear, as specified in notice:
    • before him or
    • at such other place.

(2)SITUATION: Such a notice is issued to any person.

CONSEQUENCE: It shall be duty of that person to comply with, terms of notice.

(3)SITUATION: Such person complies and continues to comply with notice.

CONSEQUENCE:

  • He shall not be arrested for the offence, in the notice,
  • unless under police officer’s opinion for reasons to be recorded, he ought to be arrested.

(4)SITUATION:

  • Such person, at any time:
    • fail to comply with, the terms of the notice, or
    • unwilling to identify himself.

CONSEQUENCE:

  • Police officer may under such order, passed by a competent Court,
  • arrest him for the offence, mentioned in the notice.

SECTION 41 B: PROCEDURE OF ARREST AND DUTIES OF OFFICER MAKING ARREST

Every police officer while making an arrest shall-

(a)To facilitate an easy identification, bear an identification of his name, which should be:

  • accurate,
  • visible, and
  • clear;

(b)Prepare a memorandum of arrest, which shall be:

(i)attested by at least 1 witness, who is:

  • member of family of person arrested, or
  • respectable member of locality, where arrest is made, and

(ii)countersigned by the person arrested; and

(c)inform the person arrested that he has right, regarding his arrest to inform his:

  • friend, or
  • relative.

RIGHTS OF THE ARRESTED PERSON

  • Right to be informed of the grounds of the arrest.
  • Right to be informed of the right to bail.
  • Right to be produced before a magistrate without delay.
  • Right of not being detained for more than 24 hours without judicial scrutiny.
  • Right to consult a legal practioner.
  • Right to free legal aid.
  • Right against unnecessary restraints.

I. RIGHT TO BE INFORMED OF THE GROUNDS OF THE ARREST:

  • In every case, a person has to be informed of his grounds of arrest.
  • This is one of the most important rights of the arrested person and has even been recognized under the Constitution of India under article 22(1).
  • Timely intimidation of the grounds of arrest helps a person in several ways such as, applying for:
    • bail, or
    • writ of habeas corpus, or etc.

SECTION 50: PERSON ARRESTED TO BE INFORMED OF GROUNDS OF ARREST AND RIGHT TO BAIL

(1)Every police officer or other person,

  • arresting, any person, without warrant,
  • shall communicate:
    • full, particulars for which he is arrested, or
    • other grounds, for such arrest.

(2)SITUATION:

  • A police officer arrested, without warrant any person other than a person, accused of non-bailable offence.

CONSEQUENCE:

  • Police office shall inform the person arrested that:
    • he is entitled to be released on bail and
    • he may arrange sureties on his behalf.

SECTION 50 A: OBLIGATION OF PERSON MAKING ARREST TO INFORM ABOUT THE ARREST, etc TO A NOMINATED PERSON

(1)Every police officer or other person, making any arrest, under this code,

  • shall give information:
    • regarding-
      • arrest and
      • place, where arrested person being held,
    • to-
      • any of his friends, relatives, or
      • such other persons, nominated or disclosed by the arrested person,
    • for-
      • the purpose of giving such information.

(2)Police officer shall inform,

  • arrested person regarding his rights, under section 50A(1),
  • as soon as he is brought to the police station.

(3)The fact regarding, the person to whom such person’s arrest is informed,

  • shall be made in a book, which is to be kept:
    • in police station,
    • as prescribed by the State Government,
    • in respect of such arrest.

(4)It shall be the Magistrate’s duty,

  • to satisfy himself that section 50A (2) and 50A (3), have been complied with.

SECTION 55: PROCEDURE WHEN POLICE OFFICER DEPUTES SUBORDINATE TO ARREST WITHOUT WARRANT

(1)SITUATION:

  • Any officer in charge of a police station or police officer,
  • making an investigation under chapter XII,
  • requires any officer:
    • subordinate to him,
    • to arrest lawfully,
    • any person without warrant,
    • otherwise, than in his presence.

CONSEQUENCE:

  • Any such officer in charge of police station or police officer, shall deliver to the officer required to make arrest,
  • written order specifying:
    • person, to be arrested and
    • offence or other cause for which the arrest is to be made
  • officer, so required, shall notify to the person to be arrested:
    • substance of the order and
    • show him the order (if so required by such person).

(2)Nothing under section 55(1), shall affect the power of the police officer to arrest a person under section 41.

SECTION 75: NOTIFICATION OF SUBSTANCE OF WARRANT

  • The police officer or other person shall:
    • notify the substance, thereof to person to be arrested, and
    • show him the warrant, if so, required.

II. RIGHT TO BE INFORMED OF THE RIGHT TO BAIL

  • Every police officer arresting without a warrant,
  • any person other than a person accused of a non-bailable offence,
  • is required to inform the person arrested that:
    • he is entitled to be released on bail and
    • he may arrange for sureties on his behalf.

Relevant section: 50(2)-

Section 50 (2)SITUATION:

  • A police officer arrested, without warrant any person other than a person, accused of non-bailable offence.

CONSEQUENCE:

  • Police office shall inform the person arrested that:
    • he is entitled to be released on bail and
    • he may arrange sureties on his behalf.

III. RIGHT TO BE PRODUCED BEFORE A MAGISTRATE WITHOUT DELAY

  • Whether the arrest is made with or without warrant,
  • the person arresting is required to produce the arrested person before magistrate in 24 hours,
  • without unnecessary delay and subject to bail provisions.

SECTION 56: PERSON ARRESTED TO BE TAKEN BEFORE MAGISTRATE OR OFFICER IN CHARGE OF POLICE STATION

  • A police officer making an arrest without warrant,
  • shall without unnecessary delay and
  • subject to the provisions of bail contained herein,
  • to take or sent, the arrested person, before:
    • magistrate, having jurisdiction in the case, or
    • the officer in charge of a police station.
  • show him the warrant, if so, required.

SECTION 76: PERSON ARRESTED TO BE BROUGHT BEFORE COURT WITHOUT DELAY

  • The police officer or other person,
  • executing a warrant of arrest, shall:
    • subject to, security provision under section 71,
    • without, unnecessary delay:
      • bring arrested the person, before the Court,
      • before which, he is required by law, to produce such person.

PROVIDED

  • Such delay, shall not exceed 24 hours,
  • executive of time necessary for the journey:
    • from, the place of arrest,
    • to, the Magistrate’s Court.

ARTICLE 22: PROTECTION AGAINST ARREST AND DETENTION IN CERTAIN CASES

  • (2)Every person, arrested and detained in custody:
    • shall be produced before the nearest magistrate-
      • within a period of 24 hours of such arrest,
      • excluding the time necessary for the journey from the place of arrest to the court of the magistrate; and
    • no such person shall be detained in custody beyond the said period without the authority of a magistrate.

IV. RIGHT OF NOT BEING DETAINED FOR MORE THAN 24 HOURS WITHOUT JUDICIAL SCRUTINY

Legal provisions regarding right of not being detained for more than 24 hours without judicial scrutiny under section 57.

SECTION 57: PERSON ARRESTED NOT TO BE DETAINED MORE THAN 24 HOURS

CASE:

  • Any police officer shall not detain in custody,
  • without warrant arrested person,
  • for a longer period than under all circumstances of the case is reasonable.

CONDITION:

  • Such period shall not exceed 24 hours, exclusive of time necessary for journey,
  • journey, from the place of arrest to the Magistrate’s Court.

UNTIL:

  • There is a special order of Magistrate under section 167.

V. RIGHT TO CONSULT A LEGAL PRACTIONER

Both Constitution Article 22(1) and Section 41D of Code of Criminal Procedure, 1973, recognize the right of the arrested person to consult a legal practioner of their choice.

SECTION 41 D: RIGHTS OF ARRESTED PERSON TO MEET AN ADVOCATE OF HIS CHOICE DURING INTERROGATION

SITUATION:

Any person gets, arrested and interrogated by the police.

CONSEQUENCE:

  • He shall be entitled to meet an advocate of his choice, during interrogation,
  • though, not throughout interrogation.

ARTICLE 22: PROTECTION AGAINST ARREST AND DETENTION IN CERTAIN CASES

(1)Any arrested person shall not be:

  • detained in custody without being informed, as soon as may be, of the grounds for such arrest, and
  • denied the right to consult, and to be defended by, a legal practitioner of his choice.

VI. RIGHT TO FREE LEGAL AID

If the accused he no sufficient means to engage a plea, the court should assign a pleader for his defense at the expense of the state.

SECTION 304: LEGAL AID TO ACCUSED AT STATE EXPENSE IN CERTAIN CASES

(1)SITUATION:

  • In trial before the Court of Session, where-
    • accused is not represented by a pleader, and
    • it appears to the Court, that accused has not sufficient means to engage a pleader.

CONSEQUENCE:

Court shall assign a pleader for his defense at the expense of the state.

(2)High Court may, with previous approval of the state Government, make rules, providing:

(a) made of selecting pleaders, for defense under section 304(1).

(b) facilities, to be allowed to such pleaders, by the Courts.

(c) fee payable, to such pleaders, by government and generally for carrying out purpose of section 304(1).

(3)State Government may be notification direct that,

  • provision under section 304(1) and (2) shall apply:
  • in relation to any class of trials before other Courts in the State (as they apply in relation to trials before Court of sessions),
  • from date specified in the notification.

VII. RIGHT AGAINST UNNECESSARY RESTRAINTS

By the virtue of section 49, it has been clarified that the arrested person shall not be subjected to more restraint than it is necessary to prevent his escape.

SECTION 49: NO UNNECESSARY RESTRAIN

The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

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Published by FARHEEN DHANJAL

I am besides being a self-help writer and podcaster am a lawyer as well. I sense an intense inclination towards the power of words; their placing, usage moreover the power of interpretation they possess in law as well as philosophy. My writings are an outcome of great mind processing, notion understanding, and articulation skills as I write: – Concrete and straightforward, – Therapy and self-help, and – Professional and guidance.

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