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2. LLB


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I. Introduction

The Criminal Procedure Code,1973, Chapter V, Sections 41 to 50 deal with the provisions for arrest of persons and rights of such persons. A trial initiates when an accused is produced before a Court. Attendance can be secured by arrest, if the accused does not appear before the Magistrate. Arrest is the first step or the initiation of investigation and trial. Arrested can be with or without warrant.

According to Black's Law Dictionary arrest means "To keep a person in lawful custody. A warrant, statute or crime can authorize this."

II. Reasons for Arrest

a. For securing attendance before Magistrate for trial.
b. For preventive or precautionary measure.
c. For obtaining correct name and address
d. For removing obstructions to police.
e. For capturing a person escaped from custody.

III. Types of Arrest

With Warant:

i. A person is arrested on the basis of a warrant in all warrant cases.
ii. A person may be arrested by issuing a warrant in a summons case for securing his attendance.
iii. Warrant may be issued for breach of bond for attendance.
iv. Issued by Magistrate u/s 70-81 in case of cognizable or non cognizable offences.
v. Warrant may be issued when there are reasons to believe that accused has absconded or is not willing to obey the summons.

When can be issued:

i. Magistrate may issue warrant upon receiving a complaint.
ii. Warrant may be issued upon receiving information provided by a person not a police officer.
iii. When the Magistrate himself has knowledge of offence.

Without Warrant: S. 41

i. A person may be arrested without warrant by a police officer in case of cognizable offence in his presence,
ii. by a officer in-charge of Police Station,
iii. by a magistrate,
iv. by Private Persons,
v. upon receiving a complaint, reasonable suspicion, credible information that he has committed a cognizable offence,
vi. when person is a proclaimed offender,
vii. is a deserter from the armed forces,
viii. a released convict commits a breach of any rule made under sub-section (5) of section 365,
ix. is obstructing the duty of police or escaped from custody,
x. is in possession of stolen property,
xi. is concerned with any act outside India which is an offence in India,
xi. is arrested for non disclosure of name and residence. S. 42,
xii. Person for whose arrest requisition has been received,
xiii. a person designing to commit any cognizable offence,
xiv. a person whose suspension of sentence is cancelled by Government,
xv. a habitual Robber, house-breaker, thief, forger, receiver of stolen property, protector of thieves or habitual offender,
xvi. has commited non-cognizable offence in presence of police.

Amendments after 2009, post D.K. Basu v. State of W.B.

Section 41 B:

Every police officer while making an arrest shall-
i. bear an accurate, visible and clear identification of his name which will facilitate easy identification;
ii. prepare a memorandum of arrest which shall be-
a. attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;
b. countersigned by the person arrested; and
iii. inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.

Section 41 C:

41C. Control room at districts.—
(1) The State Government shall establish a police control room—
(a) in every district; and
(b) at State level.
(2) The State Government shall cause to be displayed on the notice board kept outside the control rooms at every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests.
(3) The control room at the Police Headquarters at the State level shall collect from time to time, details about the persons arrested, nature of the offence with which they are charged and maintain a database for the information of the general public.

Section 41 D:

41D. Right of arrested person to meet an advocate of his choice during interrogation.—
When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.

42. Arrest on refusal to give name and residence.—

(1) When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
(2) When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required:
Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.
(3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.

Arrest by Private Persons: S. 43

(1) Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.
(2) If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re-arrest him.
(3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.

Arrest by Magistrate: S. 44

(1) When any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.
(2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

Arrest how made: S. 46

46. Arrest how made.—
(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action:
Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

Guidelines for arresting a Judicial Officer: Delhi Judicial Service Assn. v. State of Gujarat

i. A judicial officer should be arrested for any offence under intimation to the District Judge or the High Court.
ii. In case of necessity for immediate arrest only a technical or formal arrest may be effected.
iii. Arrest should be immediately communicated to the District Judge and Sessions Judge of the district concerned and the Chief Justice of the High Court.
iv. Arrested Judicial Officer shall not be taken to a Police Station, without the prior order or direction of the District and Sessions Judge of the concerned district, if available.
v. Immediate facilities should be provided to the judicial officer for communication with his family member, legal advisor and judicial officer, including the District and Sessions Judge.
vi. No statement of a judicial officer who is under arrest be recorded nor any panchnama be drawn up nor any medical tests be conducted except in the presence of the Legal Advisor of the judicial officer concerned or another judicial officer of equal or higher rank, if available.
vi. Ordinarily there should be no handcuffing of a judicial officer.
These guidelines are not exhaustive.

D.K. Basu v. State of W.B. 1996

Keeping in view Article 21 of the Constitution, Rule of Law and hand reality of custodial violence, physical torture by police, the Supreme Court issued directions to be followed in all cases of arrest as preventive measures. These direction were later implemented in the Code by various Amendments.

Rights of accused:

i. Right to know grounds of arrest,
ii. to bail,
iii. to be produced before Magistrate within 24 hours,
iv. to inform relatives, friends,
v. to consult lawyer,
vi. to be examined by doctor.

Rights and Duties of arresting persons:

i. They have all powers to effect arrest,
ii. necessary force can be used adequately,
iii. power of search and seizure,
iv. medical examination of accused.

Illegal Arrest Remedies:

i. Illegal arrest is an offence of wrongful confinement punishable under IPC.
ii. right to private defence
iii. writ of Habeas Corpus
iv. suit for damages and compensation can be filed
v. it is an offences affecting fundamental rights.

Immunity to certain persons from arrest:

i. President of India and Governors of States
ii. Members of armed force for anything done in official duty with approval
iii. Members of Judicial Services in most cases


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