Date: 4 October, 2020
by Nishtha Girdhar, UILS, Panjab University
Article 21 of the Indian Constitution grants the right to life and person liberty. No person can be denied of this right barring certain exceptions in accordance with the procedure established by law. One such exception is arrest.
The word arrest, which has been dealt with in Chapter 5 of the Code of Criminal Procedure (CrPC), has nowhere been defined in the Code but in the most basic sense, it denotes the apprehension of a person by a lawful authority resulting in the deprivation of personal liberty.
In the case of State Of Haryana & Ors vs Dinesh Kumar , it was noted that “when used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence.”
The law does not permit the detention of any person without requisite legal sanction. Since personal liberty is recognised as an essential human right and also as a fundamental right, the legal provisions relating to arrest have special significance.
NEED FOR ARREST
The necessity of arrest arises for securing the presence of a person at trial, especially when the issuance of summons would not suffice.
Arrest is a measure to prevent commission of a cognizable offence.
Arrest is a measure to detain habitual offenders.
WHO CAN ARREST?
Under the CrPC, arrest can be made by a police officer, a magistrate or a private person.
Police officer - Can make an arrest with warrant in case of non-cognizable offences (Sec 2(l)) and without warrant in case of cognizable offences (Sec 2(c)). Section 41 lists the conditions under which arrest can be made without a warrant.
Magistrate – Section 44 authorizes a magistrate to arrest an individual who has committed an offence in his presence.
Private Person – Section 43 empowers a private person to arrest a person who commits a cognizable or non-bailable offence in his presence.
HOW IS ARREST MADE?
Section 46 of the CrPC details how arrest can be made.
In making an arrest, there has to be actual confinement of the body of the arrestee except in cases where there is submission to custody by words or actions.
In case an attempt to resist or evade arrest is made, the person arresting may use all necessary means to effect the same.
However, as per Section 46(3), there is no right to cause the death of the person who is not accused of an offence punishable with death or with imprisonment for life, while arresting that person.
A police officer’s power to arrest is generally limited to the police district. However, arrest without a warrant can be made by a police officer by pursuing a person anywhere within the territory of India as per section 48.
EXTENSION OF POWERS OF ARREST
Under section 151, the police are empowered to arrest a person in order to prevent the commission of a cognizable offence. This section authorizes arrest without Magistrate’s order and without a warrant.
In Rajender Singh Pathania & Ors vs State of NCT of Delhi & Ors, on 12 August 2011 (CRIMINAL APPEAL NO. 1582 OF 2011); the apex court held that a police officer can arrest only if he comes to know of a design of the person concerned to commit a cognisable offence and such power can be exercised only if commission of offence cannot be otherwise prevented.