Tag Archives: Arrest

ARREST, Part 3- Important Judgments, CODE OF CRIMINAL PROCEDURE, 1973

CASE 1: ARNESH KUMAR V STATE OF BIHAR [(2014) 8 SCC 273]

SUBJECT: Need for auction while exercising power of arrest and detention of the accused.

(1)ISSUES COVERED:

  • Hon’ble Supreme Court, India emphasized need for caution by:
    • POLICE, while-
      • Exercising power of arrest of the accused, and
    • MAGISTRATE, while-
      • Ordering or authorizing, detention of the accused.

(the arrest and or detention ought not to be done in ‘MECHANICAL MANNER.’)

(2)SITUATION: An offence committed is cognizable and non-bailable.

  • CONSEQUENCE: Arrest is not mandatory, unless- reasonable grounds persist.

(3)SITUATION: The mode or procedure of arrest is illegal.

  • CONSEQUENCE: Magistrate should not ordinarily authorize detention.

DIRECTIONS (Passed by Hon’ble Supreme Court):

(1)All State Government to instruct it’s police officers:

  • not to automatically arrest case registered under section 498A, Indian Penal Code, 1860,
  • but to satisfy themselves.

(2)All police officers be provided with check list containing specified sub-clauses under section 41(1)(b)(ii).

(3)SITUATION: While forwarding or producing accused before Magistrate for further detention.

CONSEQUENCE: Police officer shall forward,

  • duly, filed and furnished check list,
  • containing, reasons and material, necessitated arrest.

(4)SITUATION: Magistrate while authorizing detention of the accused.

CONSEQUENCE: Magistrate shall:

  • peruse the report furnished, by Police officer, in terms aforesaid, and
  • only after recording it’s satisfaction, will authorize detention.

(5)SITUATION: An accused not arrested.

  • CONSEQUENCE: It is mandatory to forward;
    • decision within 2 week from date of institution of the case, and
    • copy extended by Superintendent of Police,
    • to Magistrate,
    • with reasons to be recorded in writing.

(6)Notice of appearance in terms of section 41:

  • shall be served on the accused, within 2 weeks, from the date of institution of the case,
  • may be extended by Superintendent of Police, of the District, for reasons to be recorded in writing.

(7)SITUATION: Police officer fails to comply with directions aforesaid.

CONSEQUENCE: Police officer shall:

  • for departmental action,
  • to be punished for contempt of Court,
  • to be instituted before High Court, having territorial jurisdiction.

(8)SITUATION: Detention authorized without recording reason, as aforesaid by concerned Judicial Magistrate.

CONSEQUENCE: The Judicial Magistrate shall be liable for department action by appropriate the High Court.

CASE 2: JOGINDER SINGH V STATE OF UTTAR PRADESH [1994 SCC (4) 260]

SUBJECT: No arrest can be made because:

  • It is lawful, or
  • Made on mere allegation or in a routine manner, an offence against a person.

FACTS:

(1)The petitioner, Joginder Kumar, 28 a young lawyer,

  • was called to the office of the Senior Superintendent of Police (SSP), Ghaziabad,
  • in connection with some inquiries.

(2)He was accompanied by friends and his brother, who were told by the police that he would be released in the evening,

  • but he was taken to a police station with the assurance that he would be released the next day.

(3)Next day, too he was not released as the police wanted his help in making further inquiries.

(4)On the third day, when his father went to the police station, they found that he had been taken to an undisclosed location.

(5)In effect, Joginder Kumar was illegally detained over a period of five days.

(6)His family had to file habeas corpus writ petition with the Supreme Court to find out his whereabouts.

(7)The Court issued notice to the State of Uttar Pradesh and to the SSP,

  • to immediately produce Joginder Kumar, and
  • answer:
    • why he was detained for 5 days without a valid reason,
    • why his detention was not recorded by the police in its diary, and
    • why he was not produced before Magistrate.

SUPREME COURT HELD:

(1)No arrest can be made, because:

  • it is lawful, or
  • made on mere allegation or in a routine manner, an offence against a person.

(2)It’s a person’s mandatory constitutional rights, that-

  • he must not be arrested on simple suspicion of complicity in an offence.

(3)Moreover, an arrest cannot be made-

  • after a reasonable satisfaction reached after some investigation is made,
  • as to the genuineness of the complaint.

COURT GUIDELINES:

(1)An arrested person being held in custody, is entitled (if he requests),

  • to have 1 friend, relative or other persons, who is:
    • known to him, or
    • likely to take an interest in his welfare,
    • whom, it is being told (as far as practicable), that-
      • he has been, arrested and
      • where, he is being detained.

(2)An arrested person shall be informed:

  • regarding, this rights,
  • when, he is brought to police station,
  • by, the police officer.

(3)Under the power flowing from Article 21 and 22(1),

  • there are some protections-
    • an entry shall be required to be made in the diary (which, must be held and enforced strictly),
    • regarding, who was informed of the arrest.

(4)Duty of magistrate:

  • before whom, arrested person is produced,
  • to satisfy himself, that these requirements have been complied with.

CASE 3: KHATRI V STATE OF BIHAR [1981 AIR 1068]

SUBJECT: How to make, the provision of the arrested person to produce the arrested person before magistrate within 24 hours work?

Supreme Court strongly urged upon:

(1)The State and it’s Police authorities:

  • to ensure that, this constitutional and legal requirements, to produce the arrested person before magistrate within 24 hours.

(2)Magistrate’s participation, in this provision:

  • enables him, to keep check over police investigation,
  • build necessity at his part:
    • to enforce requirement, and
    • if requirement found being disobeyed, to come heavily upon the police.

(3)Police officer’s liability:

  • if, fails to produce arrested person, before magistrate within 24 hours of the arrest,
  • he shall be held guilty of wrongful detention.

CASE 4: POOVAN V SUB- INSPECTOR OF POLICE [1993 CriLJ 2183]

SUBJECT: Magistrate’s proceedings, when the arrested person, within his jurisdiction is not presented to him within 24 hours or detained beyond 24 hours.

SITUATION: Whenever a complaint:

  • Is required by Magistrate that a person is arrested within his jurisdiction but has not been produced before him with 24 hours, and
  • Has made to magistrate that a person is being detained within his jurisdiction beyond 24 hours of his arrest.

CONSEQUENCE:

  • He can and should call upon the police office concerned,
  • to state, whether allegations are true,
  • if, found true on what and under whose custody he is being so held,
  • if, police officer denies the arrest magistrate can:
    • make an inquiry into the issue and
    • pass appropriate orders.

CASE 5: DK BASU V STATE OF WEST BENGAL [(1997) 1 SCC 416]

SUBJECT: Custodial deaths

FACTS:

(1)DK Basu, Executive Chairman of the Legal Aid Services cell, West Bengal. He addressed a letter to the Chief Justice of India:

  • requesting him to draw his attention to certain news articles published concerning the deaths in police lock-ups and custody, and
  • requested the authorities to treat it as a Writ Petition within the “Public Interest Litigation” category.

(2)Considering the relevancy of the issues raised in the letter:

  • it was treated as a Writ Petition and
  • notice was served to the Respondent which was the State of West Bengal.

(3)While the letter was under consideration, one Mr. Ashok Kumar Johri addressed another letter to CJI, drawing his concern to the death of one Mahesh Bihari of Pilkhana, Aligarh in Police Custody. It also got treated as a writ petition and was listed along with the petition of DKBasu.

(4)The Court made an order by issuing notices to:

  • all the State Governments and
  • the law Commission of India,
  • requesting suitable suggestions within a period of 2 months.

SUPREME COURT GUIDELINES,(to be followed while making arrest)-

(1)Police personnel, carrying out arrest and handling interrogation of arrestee,

  • should bear, accurate, visible and clear identification:
    • name tags, and
    • designations.

(2)Police officer carrying out arrest shall prepare, Memo of Arrest, which shall be attested by at least 1 witness,

  • Such witness may be:
    • a member, of family of the arrestee, or
    • a respectable person of the locality, from where arrest is made.

(3)SITUATION: Person:

  • has been arrested or detained,
  • is being held in custody in:
    • Police station,
    • Interrogation center, or
    • other lock up.

CONSEQUENCE:

  • He shall be entitled to have one friend, relative or other person,
  • known to him or having interest in his welfare,
  • being informed (as soon as practicable), that:
    • he has been arrested, and
    • is being detained at the particular place,
  • unless: The attesting witness of the memo of arrest, to himself such a friend or relative of arrestee.

(4)SITUATION :

  • Where the next friend or relative of the arrestee lives outside district or town.

CONSEQUENCE:

  • The time, place and venue of custody of an arrestee,
  • must be notified by police, through:
    • legal aid in the District, and
    • police station of the concerned area, telegraphically,
  • within period of 8- 12 hours, after the arrest.

(5)Person arrested must be aware of his rights,:

  • to have someone informed of his arrest and detention, as soon as he is put under arrest or detention.

(6)An entry must be made in diary, at the place of detention, regarding:

  • arrest of the person,
  • name of the next friend of person, who has been informed of arrest,
  • name and particulars of police officer in whose custody arrestee is.

(7)Arrestee should be:

  • examined (where he requests), at the time of arrest, and
  • any major and minor injuries (if any) present on his or her body, must be recorded.

(8)Inspector’s memo, must be:

  • signed, by arrestee and police officer, affecting arrest, and
  • copy, is to be provided to the arrestee.

(9)Arrestee should be subjected to medical examination:

  • by, trained doctor,
  • every, 48 hours,
  • during, his detention in custody.

Examined by a doctor, on the panel of approved doctors:

  • appointed by Director, Health Services of concerned State or Union Territory,
  • prepared for all tehsils and districts.

(10)Copies of all documents should be sent to Magistrate for his record.

(11)Arrestee:

  • may be permitted to meet his lawyer during interrogation,
  • though not throughout interrogation.

(12)Police control room, should be provided:

  • at, district and state headquarters,
  • for communicating information:
    • regarding arrest and place of custody of arrestee,
    • by, officer, causing the arrest, within 12 hours of effecting arrest,
  • should be, displayed on conspicuous notice board in police control room.

CASE 6: BINOY JACOB V CBI [1993 Cri LJ 1293 (Del)]

SUBJECT: Extent of Investigating agency’s discretion.

Delhi High Court opinioned that-

  • in a country, governed by rule of law,
  • discretion of investigating agency does not mean:
    • whim,
    • fancy, or
    • wholly arbitrary exercise of discretion,
  • in all cases, where arrest are made by investigating agency,
  • however, Cr.P.C contemplates judicial scrutiny soon after such an arrest.

CASE 7: In RE MADHU LIMAYE [AIR 1969 SC 1014]

SUBJECT:

  • What Article 22(1) represents?
  • Purpose of the 2 requirements under Article 22(1)?

FACTS:

  • Madhu Limaye, Member of the Lok Sabha and several other persons were arrested.
  • Madhu Limaye addressed a petition in the form of a letter to the Supreme Court under Article 32 mentioning that, ‘he along with his companions had been arrested but had not been communicated the reason or the grounds for arrest.’
  • One of the contentions raised by Madhu Limaye was that there was a violation of the mandatory provisions of article 22(1) of the Constitution.

SUPREME COURT OBSERVATIONS:

  • Article 22(1), embodies a rule which has always been-
    • regarded as vital and fundamental,
    • operated for safeguarding personal liberty,
    • in all legal systems, where rule of law prevails.
  • Two  requirements of Article 22(1), are meant to, afford arrested person with earliest opportunity, to-
    • remove any mistake, misapprehension, or misunderstanding,
    • know exactly what accusation is against him,
    • let him exercise, the 2nd right of:
      • consulting a legal practioner of his choice, and
      • getting defended by him.

CASE 8: NILABATI BEHERA V STATE OF ORISSA [(1993) 2 SCC 746]

Subject: Custodial death, practices of police officials and compensation of victims of unlawful arrest and detention.

FACTS:

  • According to the factual matrix, the person was inflicted with several injuries while in custody which resulted in his death.
  • Then the police officials in order to cover the death put him on the railways track and tried to protect themselves by presenting false evidence.
  • Thus, the present case deals with the practices observed by the police officials who are supposed to be the protectors of life and liberty of the people.

SUPREME COURT HELD:

  • Supreme Court directed, respondent State of Orissa to pay sum of-
    • Rs. 1,50,000 to the petitioner, and
    • Rs. 10,000 to Supreme Court legal Committee
  • Supreme Court recognized:
    • the right of compensation of victims of unlawful arrest and detention.

HERE, THIS SERIES ON ARREST COMES TO AN END.

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.

ARREST, PART-1: Definition, Authorities authorized, and Types, CODE OF CRIMINAL PROCEDURE, 1973

MEANING

The word, “Arrest” has not been defined in this Code.

However, some judgments have surly brought its meaning in much clearer picture.

CASE 1: State of Haryana V Dinesh Kumar (2008) 3 SCC 222

  • The Apex Court observed that the expression arrest has not been defined, under:
    • The Code of Criminal Procedure, 1973 or
    • The Indian Penal Code, 1860 or
    • Any enactment dealing with criminal offence.
  • The Supreme Court cited the meaning under Halsbury’s Laws of England, the word arrest when used in its ordinary sense, means-
  • ‘the apprehension or restrain or the deprivation of one’s personal liberty.’
  • An 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;
    • with essentials of:
      • intent to arrest, under authority and
      • seizure or detention, under law.

DEBATABLE QUESTION HEREBY-

If mere, taking into custody of a person by an authority empowered to arrest, amounts to arrest. Does the term arrest and custody synonymous?

The question got clarified by another case-

CASE 2: Directorate of Enforcement V Deepak Mahajan AIR 1994 Sc 1775

  • It was noted that “custody’ and ‘arrest’ are not synonymous terms.
  • Taking a person into custody is followed after the arrest.

AUTHORITIES AUTHORISED TO MAKE OUT THE ARREST

  • Police officer (with warrant- sec. 70- 81, or without warrant- 41, 42, 43, and 46) or
  • The Magistrate (section 44) or
  • A private person (Section 43).

TYPES OF ARREST

I. Arrest with warrant

II. Arrest without warrant

I. ARREST WITH WARRANT

SECTION 41: WHEN POLICE MAY ARREST WITHOUT WARRANT

(1)Any police officer may arrest any person without:

  • A Magistrate’s order and
  • A warrant

(a)Who commits, a cognizable offence in the presence of a police officer; or

(b)Against whom-

  • there has been-
    • a reasonable complaint or
    • a credible information or
    • a reasonable offence,
  • regarding committing a cognizable offence, punishable with:
    • imprisonment, not less than 7 years or which may extend to seven years and
    • whether with or without fine.

CONDITIONS TO THE APPLICABILITY OF SITUATION (b):

(i)If the police officer has reasonable believe, regarding an offence being committed, based upon such:

  • complaint,
  • information, or
  • suspicion.

(ii)If the police officer is satisfied that such arrest is necessary-

(a)to prevent such person from committing any further offence; or

(b)to have proper investigation of the offence; or

(c)to prevent such person from causing the evidence of the offence to:

  • disappear or
  • tamper (in any manner); or

(d)to prevent such person:

  • from- inducing, threatening or promising,
  • to- person acquitted with facts.
  • to dissuade him,
  • from disclosing, facts
  • to the Court or police officer; or

(e)to ensure such person’s presence in the Court whenever required.

And the police officer shall record his reasons in writing, while making such arrest.

PROVIDED:

  • For not arresting when not required, herein:
  • the police officer shall write reason for not making the arresting.

(ba)Against whom, there has been credible information,

  • regarding committing cognizable offence, punishable with:
    • imprisonment, more than 7 years, whether with or without fine, or
    • death sentence,
  • the police officer has reason to believe such information that such person has committed the said offence.

(c)A person, proclaimed as an offender:

  • under this Code, or
  • by the State Government’s order; or

(d)In whose possession, anything reasonably suspected to be stolen is found, and

  • with reference to such thing, he may reasonably be suspected of having committed an offence; or

(e)A person who:

  • obstructs the police officer to execute his duty or  
  • escaped or attempts to escape, from lawful custody; or

(f)A person 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,

  • there has been:
    • reasonable complaint or
    • credible information or
    • reasonable suspicion,
  • regarding him committing an act, at any place outside India,
    • if, committed in India:
      • punishable as an offence, under any law relating to extradition or otherwise, and
      • liable to be apprehended or detained in custody in India; or

(h)Who, being a released convict, commits a breach of any rule, under section 356(5); or

(i)For whose arrest, written or oral requisition has been received from another police officer.

PROVIDED:

  • Requisition specifies:
    • person to be arrested or
    • the offence or
    • other cause to arrest.
  • hereby, appears person might be:
    • lawfully arrested without a warrant,
    • by the officer who issued the requisition.

(2) As per section 42:

  • non-cognizable offence offender,
  • against whom, there has been:
    • reasonable complaint or
    • credible information or
    • reasonable suspicion,
  • shall not be arrested,
  • except, under a warrant or a Magistrate’s order.  

SECTION 42: ARREST ON REFUSAL TO GIVE NAME AND RESIDENCE

(1)SITUATION:

  • Any person, in presence of the police officer,
  • committed or accused to be committed, non-cognizable offence,
  • on demand of his name and residence,
  • either refuses, to give or gives, which the police officer has reason to believe it to be false.

CONSEQUENCES:

  • He may be arrested, by such police officer to may ascertain his name and residence.

(2)SITUATION:

  • On ascertaining such person’s true name and residence.

CONSEQUENCE:

  • He shall be released, on execution of:
    • Bond,
    • With or without warrant sureties (if required, to appear before the Magistrate).

PROVIDED

  • SITUATION: Such person is non-resident of India.
  • CONSEQUENCE: Bond is to be secured by surety or sureties, resident in India.

(3)SITUATION:

  • True name or residence, not been ascertained, within 24 hours, from arrest, or
  • he fail to execute bond or furnish sufficient sureties, if required.

CONSEQUENCE:

  • He shall be, forthwith be, forwarded to the nearest Magistrate, having jurisdiction.

SECTION 43: ARREST BY PRIVATE PERSON AND PROCEDURE ON SUCH ARREST

(1) SITUATION:

  • Any person or any proclaimed offender,
  • in presence of, any private person,
  • Commits, non-bailable and cognizable offence.

CONSEQUENCE:

  • Private person:
    • may arrest or cause to arrest,
    • shall or cause to make over, the arrested person to (without unnecessary delay):
      • a police officer, or
      • the nearest police station, for custody purpose (in absence of a police officer) .

(2) SITUATION: Under reasonable believe such person comes under sec. 41.

CONSEQUENCE: A police officer shall re-arrest him.

(3) SITUATION:

  • Under reasonable believe, he:
    • committed, non-cognizable offence, and
    • refuses, to give his name or residence, on demand of the police officer, or
    • gives, name and residence but under, reasonable believe of the police officer, is false.

CONSEQUENCES:

  • He shall be dealt under section 42.

EXCEPTION:

  • Under no sufficient reasonable believe of him committing any offence,
  • he shall be released at once.

SECTION 46: ARREST HOW MADE

(1)The police officer or other person, while making arrest,

  • shall, actually touch or confine the body, of the person to be arrested.
  • UNLESS: There is submission to the custody by word or action.

PROVIDED

SITUATION: Where, a woman is to be arrested.

CONSEQUENCE:

  • Unless:
    • Circumstances indicates to the contrary her submission on oral intimation on arrest shall be presumed, and
    • Circumstances otherwise require or the police officer is a female, the police officer shall not touch her for making her arrest.

(2)SITUATION:

  • Such person on:
    • resisting the endeavor to arrest him, or
    • attempting to evade the arrest.

CONSEQUENCES:

  • Such police officer or other person,
  • may use all means, necessary,
  • to effect the arrest.

(3)Nothing under this section, gives right to cause death,

  • of person, who is not accused of an offence, not punishable with death or imprisonment for life.

(4)No women shall be arrested after sunset and before sunrise.

EXCEPT

  • Woman police officer shall by, written report,
  • obtained prior permission of Judicial Magistrate of first class, within whose jurisdiction:
    • offence is committed or
    • arrest is to be made.

II. ARREST WITHOUT WARRANT

SECTION 70: FORM ON WARRANT OF ARREST AND DURATION

(1)Every warrant of arrest:

  • issued by a Court, under this Code, shall:
    • be written or signed by the presiding officer, of such Court and
    • bear the seal of the Court.

(2)Every such warrant shall remain in force, until:

  • cancelled by the Court, issued it or
  • It is executed.

SECTION 71: POWER TO DIRECT SECURITY TO BE TAKEN

(1)CASE:

  • Any Court issuing a warrant of arrest of any person,
  • may endorse directions on warrant,
  • regarding release of such person.

SITUATION:

  • Such person executes:
    • a bond, and
    • sufficient securities-
      • for attendance,
      • before the Court and
      • at a  specified time.

CONSEQUENCE:

  • The officer to whom warrant is directed shall:
    • take such security and
    • release, him from custody.

EXCEPT: The Court directs otherwise (anything else).

(2)The endorsement shall state-

(a)the number of sureties,

(b)the amount, in which they and such person are to be respectively bound, and

(c)the time at which he is to attend before the Court.

(3)SITUATION

Whenever, security is taken under this section.

CONSEQUENCE

The officer (to whom, warrant is directed) shall forward the bond to the Court.

SECTION 72: WARRANTS TO WHOM DIRECTED

(1)CASE: Ordinarily, warrant of arrest is directed to one or more police officers.

SITUATION: Court issue’s warrant:

  • requiring, immediate execution and
  • having, no police officer immediately availability.

CONSEQUENCE: Direct, such warrant, to any other person or persons, who shall execute the same.

(2)SITUATION: Warrant of arrest directed to more than one police officer or persons.

CONSEQUENCE: Such warrant of arrest may be executed by all or any one or more of them.

SECTION 73: WARRANT MAY BE DIRECTED TO ANY PERSON

(1)The Chief Judicial Magistrate or a Magistrate of the first class,

  • may direct warrant:
    • to, any person within his local jurisdiction,
    • for any person, who is evading arrest and is:
      • an escaped convict or
      • a proclaimed offender, or
      • accused of non-bailable offence.

(2)SITUATION:

  • Person, for whose arrest warrant is issued,
  • is in or enters on any land or other property under this charge.

CONSEQUENCE:

  • Such person, within local jurisdiction shall:
    • acknowledge, the receipt in writing and
    • execute, the issued warrant.

(3)SITUATION: Person, against whom such warrant is issued, is arrested.

CONSEQUENCE: Such person, shall be:

  • made over, with warrant,
  • to the nearest police officer, who shall take him before a Magistrate, having jurisdiction in the case.

SECTION 74: WARRANT DIRECTED TO POLICE OFFICER

SITUATION: A warrant directed to any police officer may also be executed by any other police officer.

CONSEQUENCE: Such any other police officer, is:

  • whose name is endorsed upon the warrant,
  • to whom warrant of arrest is directed or endorsed.

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.

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.

SECTION 77: WHERE WARRANT MAY BE EXECUTED

A warrant of arrest may be executed at any place in India.

SECTION 78: WARRANT FORWARDED FOR EXECUTION OUTSIDE JURISDICTION

(1)SITUATION:

  • A warrant executed outside local jurisdiction of the Court, issuing it.

CONSEQUENCE:

  • Such Court may;
    • instead of, directing the warrant to the police officer, within it’s jurisdiction,
    • forward it, to Executive Magistrate, or District Superintendent of police, or Commissioner of Police:
      • within local limits of whose jurisdiction it is to be executed,
      • shall endorse his name, thereon cause it to be in manner, hereinbefore, if practicable.

(2)The Court issuing warrant under section 78(1), shall forward:

  • the warrant,
  • substance of the information against the person to be arrest, and
  • such documents (if any):
    • may be enable the Court acting under section 81,
    • to decide whether bail, should be granted or not.

SECTION 79: WARRANT DIRECTED TO POLICE OFFICER FOR EXECUTION OUTSIDE JURISDICTION

(1)SITUATION:

  • Warrant directed to the police officer to be executed beyond local jurisdiction of the Court, issuing it.

CONSEQUENCE:

  • Such police officer,
  • shall take, such warrant,
  • for endorsement to:
    • an Executive Magistrate, or
    • the police officer, not below the rank of an officer in- charge of police station:
      • within local limits,
      • of jurisdiction, where warrant  is to be executed.

(2)Such Magistrate or police officer,

  • shall endorse his name thereon,
  • which shall be sufficient authority, to the police officer, who is:
    • to execute the directed warrant and
    • to take assistance of local police, to execute such warrant (if required).

(3)SITUATION:

  • With reason to believe that occasion got delayed,
  • by obtaining, endorsement of Magistrate or police officer, within whose local jurisdiction, warrant is to be executed,
  • will prevent such executive.

CONSEQUENCE:

  • Police officer (to whom, warrant is directed), may execute it:
    • without, such endorsement in any place,
    • beyond, local jurisdiction, of the Court, issued it.

SECTION 80: PROCEDURE ON ARREST OF PERSON AGAINST WHOM WARRANT ISSUED

SITUATION:

  • A warrant of arrest is executed outside the district in which it was issued.

CONSEQUENCE:

  • Arrested person shall be taken before:
    • Executive Magistrate or District Superintendent of Police or Commissioner,
    • of police, within local limits of whose, jurisdiction arrest was made.

UNLESS

  • The Court, issuing warrant:
    • is within 30 kilometres, of the place of arrest or
    • nearer than the Executive Magistrate or District Superintendent of Police or Commissioner of police, within local limits whose jurisdiction arrest is made or
    • security is taken under section 71.

SECTION 81: PROCEDURE BY MAGISTRATE BEFORE WHOM SUCH PERSON ARRESTED IS BROUGHT

(1) SITUATION:

The person arrested appears to be the person intended by the Court, issued the warrant.

CONSEQUENCE:

  • The Executive Magistrate or District Superintendent of Police or Commissioner of Police,
  • shall direct his removal in custody to such Court.

PROVIDED

In order to release such person on bail, according to offences:

BAILABLE OFFENCE-

  • Either such person is ready and willing to give bail to satisfaction of:
    • Executive Magistrate or
    • District Superintendent of Police or
    • Commissioner of Police or
  • direction has been endorsed under section 71 on the warrant and
  • such person is ready and willing to give the security,
  • required by such direction of Executive Magistrate or District Superintendent of Police or Commissioner of Police shall:
    • take such bail of security as the case may be, and
    • forward bond to the Court (issued warrant).

NON- BAILABLE OFFENCE-

  • It shall be lawful for:
    • Chief Judicial Magistrate under section 437 or
      • Sessions Judge,
  • of district, in which arrest is made,
  • to consider information and document,
  • to release such person on bail.

(2) Nothing under this section prevents police officer from taking security under section 71.