How can an arrest be made in India?

An arrest is subject to certain conditions under the provision of the Criminal Procedure Code. Even an arrested person cannot be denied fundamental rights unless necessary.

What is an arrest?

In India, a person can not be easily arrested like it is shown in a movie or web series. The procedure of arrest is subject to certain conditions, which are strictly implied on the officer arresting a citizen.

The term arrest means taking away a person by a legal authority for seizure, restraint by the exercise of the imposed power to restrain the liberty of the person keeping in custody.

As per the provision of CrPC, an arrest is a vital mechanism to ensure the appearance of the accused before the court by preventing him from absconding. This article will help you to understand the laws followed in India regarding the arrest.

What is the purpose of an Arrest?

The main purpose of an arrest is to bring an accused before the court, to secure the smooth administration of law. The arrest also serves the function of notifying society that the arrested person is accused of a crime.

What are the provisions under CrPC about the arrest?

An arrest is a form of detention and the procedure of the same is laid down by the Code of Criminal Procedure 1973. Chapter V of the CrPC explains the complete procedure relevant

Who can make an arrest?

A police officer, a magistrate or even a private person can make an arrest. For example, a normal person who is not in any authoritative positions can also arrest any person but the arrest should be made according to the process prescribed under CrPC.

As per the provision under Sec. 45 of CrPC, a police officer can arrest a person with a warrant as well as, without a warrant. However, under this code, the member of the armed forces are exempted that they can not be arrested for anything done in discharge of their duties unless there is an order from the government.

Sec. 43 of the CrPC says a private individual may arrest a person only when the person a proclaimed offender and the person commits a non-bailable offence and cognizable offences in the presence of a person arresting him. For example, if you see a person trying to murder another person, and you prevent him and confine him in a room, till the police come, you are authorized to do so. You'll not be accused of causing harm to personal liberty.

Under Sec. 44 of the Code, a Magistrate – either Executive or Judicial – may order the arrest a person without a warrant.

How can a police arrest without a warrant?

A police officer can make an arrest under the provision of Sec. 41, 42 and 151 of the Code, subject to any of the following conditions:

• When the person has committed any cognizable offence such as murder, rape, kidnapping, theft, etc. or;

• The person is in possession, without, lawful excuse, of any housebreaking weapon or;

• The person has been proclaimed offender under any provision of CrPC or by order of the State Govt. or;

• The person has any property that is stolen or;

• If the person obstructs a police officer during the execution of his duty or;

• The person has escaped or attempts to escape, from lawful custody or;

• The person is reasonably suspected of being a deserter from any of the Armed forces of the Union or;

• The person is accused of any law relating to extradition or;

• A convicted person on being released commits a breach of any rule made under sub-section (5) of Section 356 CrPC or;

• If the arrest of the person is under any requisition that has been received from another police officer specifying the person to be arrested and the offence and other cause for which the arrest is to be made.

What is the procedure for making an arrest?

Sec. 46 of the Code explains the procedures to be followed at the time of making an arrest, listed here:

• While making an arrest the person being arrested cannot be touched or confined, if he has submitted to the custody by word or action. For example, if Mr X while being arrested co-operates with the police and does not make any attempt to escape, the police officer cannot touch him, pull or push him anyway. An arrest must be done gently if the person being arrested does not cause a hindrance in the procedure.

• If a woman is to be arrested, a female police officer should be conducting the arrest. At least, one female police officer must be present at the time of making the arrest. A similar procedure is to be followed here, if there is no hindrance, no harsh behaviour should be from the police. Moreover, a woman cannot be arrested between sunset and sunrise. However, in certain exceptional cases, where the woman may escape before the sunrise or not making the arrest will cause a huge hindrance in the judicial procedure, a written order has to be obtained from the Magistrate of the first class of that jurisdiction, from where she is being arrested.

• The person being arrested tries to resist using physical force to cause a hindrance to the, or attempts to evade the arrest, the police officer or other person may use all means necessary to effect the arrest.

• Another important condition is that, while making an arrest, even if it is necessary to adopt certain harsh behaviour by the police on being resisted physically in making the arrest, the behaviour should not be that harsh that it causes death to the person being arrested. .

An arrest is an important judicial procedure that can not be misused to cause a hamper to the fundamental right to live with dignity granted under Article 21 of the Constitution of India.

The whole concept of the arrest is to ensure the proceeding of justice without delay and keeping society safe under certain circumstances.