Changes in Perspective to Laws of Arrest

-Pranjal Nayan

Overview:

The term “Arrest” means apprehension of a person by legal authority so as to cause deprivation of his liberty. Thus, after an arrest, a person’s personal liberty lies in the hands of the arrester. In criminal law, arrest is an important tool for bringing an accused before the court and to prevent him/her from sneaking away.

According to State of Punjab vs. Ajaib Singh[1], arrest has been defined as “A physical restraint put upon a person as a result of allegation of accusation that he has committed a crime or an offence of quasi criminal nature.”

Changes in Perspective to Laws of Arrest (Indian Perspective)

Provisions of the Cr.PC and its recent changes- Section 41 to 60 deals with Arrest of Persons in the Cr.PC. Accordingly, arrest has been divided into two-

1. Arrest with a Warrant
2. Arrest without a Warrant- Section 41 impanels different conditions that needs to be fulfilled to make an arrest without a warrant.

The Police officer has valid evidence that crime has been committed by that particular person.
There is a believe that he/she may commit further offense, may cause evidence to disappear, prevent proper investigation, may cause a threat to any witnesses or is necessary to take into custody for proper investigation.

 

Regulations by the Apex Court:

• The accused has full right to learn where and which police station he is brought to, of his right. An entry is mandatorily required to be made in diaries or registers as to who was informed about the arrest. This protection of power must be held to flow form Articles 21 and 22(1) and are enforced strictly.
• Case Law: D.K. Basu vs. State of West Bengal-[2]

The Police Officer at the time of arrest of the arrestee should maintain a memo at the time and place made during the arrest. The prepared memo shall be attested by one or more witnesses, who may be a person from the family of the accused or a person from the locality where the arrest is made.

The accused should be made aware of his right to have someone notified as soon as he/she is taken under arrest.

An entry is a must require of the accused which shall also disclose the name of the particular person who has been informed regarding the arrest. An “Inspection Memo” shall be signed by both the police officer and the accused where a copy of the memo has to be kept by the accused.

The arrestee may be permitted to meet his/her lawyer during interrogation, though not throughout the interrogation.

Inclusion of different sections under the law[3]–

Section 41-A: Notice of appearance in front of the Police Officer

The police officer in all cases, where the arrest of an individual is not necessary, under the provisions of sub sections of-

1. Section 41 issuing a notice which directs a person against whom a reasonable complaint has been made, to appear before him or at some place as and when indicated in the issued notice.
2. When and where such a notice is issued to a person, it shall be the duty of the person to accord with the terms and conditions specified in the given notice.
3. When such person at any time fails to comply with the terms of the notice, it shall be the duty of the police officer to lawfully arrest him/her for the offence mentioned in the notice.

Section 41-B: Procedures and duties of an Officer while making an arrest.

Every police officer while making an arrest shall bear an accurate, visible and clear  identification of his name which shall simplify easy identification. The police officer shall prepare a memorandum which shall be verified by at least one or more witness who is the member of the family or a member of the locality where the arrest has been made.

Section 41-C: Control Room at Districts

An establishment of a proper police control room by the State Government in every district and also at the State level should be necessary. The names and addresses of the people arrested and the name and designations of the police officer who made the arrest shall be considered lawful.

Section 41-D: Rights of the arrestee

When any person is arrested by the police, he/she shall be entitled to meet an advocate of his choice during interrogation.

Amendments of the Sections-

Section 41- A police may arrest without a warrant.

Any police officer, without an order or a permission, arrest a person-

1. Against whom a reasonable complaint has been made, or inconceivable information has been gained
2. Who has been recognized as an accused by this code or the State Government.

• Who hinders or barricades a police officer while execution of his duty, who has escaped or attempts to escape after an arrest.

1. For whose arrest any seizure, be it written or oral, has been received from an another police officer, provided that the requisition specifies the person to be arrested.

Section 42-

1. No person concerned in a non-cognizable offence or against whom a complaint has been made or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or an order of A Magistrate.

Changes in laws of Arrest (International Perspective-U.K.)[4]

When a person is suspected to have been committed a crime, he/she is arrested, taken to the police station, held in custody under a cell and is questioned. The person may be released or is charged with a crime.

Rights in Custody:

1. Getting a free legal advice and legal aid while in a custody.
2. The police officer needs to see and abide by all the rules provided under the Codes OfPractice.

• A legal notice provided to the arrestee telling him/her about his/ her rights( a notice in the arrestee’s own language may be provided)

Recent changes in the procedures of arrest:

1. The Police Officer is allowed to take photographs of the arrestee. Samples of DNA and fingerprints have also been made acceptable. Asking for an order or a permission is not required.

An arrestee can find out his/her stored information on the police database by getting a copy of the official police records.

[1]  State Of Punjab vs Ajaib Singh, AIR 1953 SC 254

[2] DK Basu vs State of West Bengal, AIR 197 SC 610

[3] Cr. PC Amendment Act, 2008 (5 of 2009)

Cr. PC Amendment Act, 2008 ( 5 of 2009) Section 5(ii)

[4]www.gov.uk/arrested-your-rights